Caring. Effective. Efficient.

BVA erred by not addressing secondary service connection based on aggravation

BVA erred by not addressing secondary service connection based on aggravation

This case involved a veteran's entitlement to secondary service connection, on an aggravation theory, for degenerative disc disease of the lumbar spine. 

The BVA is required to provide a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; that statement must be adequate to enable a veteran to understand the precise basis for the BVA's decision, as well as to facilitate review in the CAVC. 38 U.S.C. § 7104(d)(1).

The BVA denied secondary service connection on an aggravation theory when it wrote  that the veteran had “acute and transitory back pain in service, and that his current back pain is not causally related to, or aggravated by, active service.”

The BVA failed to discuss, or even mention, the secondary service connection aggravation evidence, which showed the veteran had an abnormal spine examination with flattening of the lumbar spine on his entrance examination and at his Air Controlman Candidate examination. The BVA  clearly failed to provide analysis regarding the issue of secondary service connection based on aggravation.

Moreover, the BVA found a VA C&P Examiner opinion and addendum to be the most probative opinions of record, even though the examiner failed to provide any opinion regarding the issue of secondary service connection based on aggravation in either his opinion or  addendum opinion. The BVA was required, on remand, to consider the adequacy of the exam.

Does this case sound like your VA Rating Decision or BVA Decision? If so, click here to have  Attig | Steel take a look at your case.

Link to the BVA Decision on CAVC Website.

Link to the Joint Motion to Remand the CAVC Website.

Case Details

OGC Attorney: Laura A. Bernasconi

Veteran Representation at CAVC: Chris Attig (link to bio)

Board of Veterans Appeals Veterans Law Judge: Michael Martin

Regional Office: Houston, Texas, VA Regional Office

Vets’ Rep at BVA: Texas Veterans Commission (TVC)

Date of BVA Decision: January 28, 2015

Date of CAVC Judgment on Remand: June 16, 2016

Recent Cases

This case involves a veteran’s appeal to the BVA seeking service connection for arthritis.  The veteran served in the US Air Force from 2005 to 2006. He injured his knee and other parts of his body when required to move heavy appliances into a… Read More
Attorney Chris Attig has been working with this veteran’s survivor for half a decade to get her DIC and survivor’s accrued benefits properly awarded.  The veteran was a 3 decade military veteran, who fought not only in Thailand during th… Read More
  This case involves the BVA’s rating of a veteran’s service connected knee injury and a BVA credibility finding; our client appealed the BVA’s decision to the U.S. Court of Appeals for Veterans Claim (CAVC). The appeal was res… Read More

See More Appellate Results

VA Form 21 Blog

Apr
23
What is the Deep Issue in the Case? Claimants eligible to receive accrued benefits upon the veteran’s death are, in order of eligibility, the veteran’s spouse, “the veteran’s children” and the veteran’s depende… Read More
Jan
17
One of our clients’ cases, Martinez v. Wilkie, No 17-1551, was recently set for a panel decision by the US Court of Appeals for Veterans Claims (CAVC).We are not yet sure if there will be supplemental briefing or oral argument at this time. I… Read More

Read the VA Form 21 Blog