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 barracks being built for service-members.
The appeal was resolved through a joint motion to remand. The VA's Office of General Counsel agreed that the BVA committed remandable error, and that the decision needed to be vacated and remanded to the BVA to fix its errors.
The BVA denied service connection for arthritis, holding arthritis was not diagnosed and did not manifest within one year of separation from service. The veteran, who served until October 2006, reported continuous symptoms of knee pain from 2006 to the present. The BVA mentioned that the veteran testified about continuous symptoms of knee pain from August 2006 to present.
Did the BVA err when it failed to consider continuity of symptomatology as a means of proving service connection for arthritis?
The parties agreed that the BVA erred when it failed to prove service connection for arthritis. The BVA decision by Veterans Law Judge Michelle L. Kane was vacated and remanded for the BVA to fix its errors.
This appeal is an example of a very common BVA mistake in an appeal seeking service connection for arthritis. The BVA notes some testimony that a veteran experienced symptoms of arthritis during service or after service. The BVA then discounts that lay testimony by finding that a veteran is not competent to testify about the etiology of his medical condition and denies service connection for arthritis.
A veteran is always competent to testify about the symptoms he experienced or is experiencing, prior diagnoses of a particular condition, or other matters that he can personally perceive or experience.
A veteran is not competent to testify about the medical cause of a condition. However, in a claim for service connection of arthritis, the VA does not require a veteran prove that active military service caused his or her arthritis. He need only prove that it is more likely than not that the arthritis is related to military service. He can do that with an expert medical opinion or with competent and credible lay testimony of continuous symptoms of pain or arthritis in the joint from service to diagnosis.
If you have a case where you are seeking service connection for arthritis and the BVA denies your claim, and if you would like us to take a look at your BVA decision for possible appeal to the Court of Appeals for Veterans Claims (CAVC), click here to have Attig | Steel take a look at your case.
OGC Attorney:Mark Villapando (link to attorney's bio on LinkedIn)
Veteran Representation at CAVC: Chris Attig (link to bio)
Board of Veterans Appeals Veterans Law Judge: Michelle L. Kane
Regional Office: Phoenix, Arizona VA Regional Office
Vets’ Rep at BVA: Disabled American Veterans (DAV)
Date of BVA Decision: June 7, 2017
Date of Joint Motion to Remand: May 9, 2018