The Board awarded my client a 50 percent rating for the affected left upper-extremity nerve disability but denied a higher evaluation. I reviewed the unfavorable portion of the decision while keeping the existing favorable award in view. Two issues stood out: missing treatment records and an examination statement that conflicted with other evidence.
Listening and comparing the records
I listened to my client and reviewed the treatment notes, the peripheral-nerves examination, and the Board’s explanation. The file identified treatment by an authorized non-VA neurosurgeon, including surgery, and referenced records available through VistA Imaging. Yet it did not show that VA had attempted to obtain those treatment records.
The examination presented another problem. It reported that the veteran did not use assistive devices, while a treatment record documented arm-brace use. I examined whether the Board had addressed that inconsistency before relying on the examination.
Neither issue required me to make a new medical diagnosis. Both required careful attention to what the record showed and to the adequacy of the Board’s explanation.
Bringing the issues into a legal memo
I prepared a legal memo addressing the records-development question under 38 C.F.R. § 3.159(c)(3) and the Board’s reasons-or-bases obligation. The missing records required consideration of whether additional development was warranted.
For the examination, the issue was whether it rested on an inaccurate factual premise concerning assistive devices and whether further development, such as an addendum, was necessary. The argument was tailored to the record: the Board needed to address the inconsistency rather than assume it had no bearing on the evaluation.
Securing a partial remand
I won a CAVC partial remand concerning the denial of a rating above 50 percent. The favorable rating already awarded by the Board was not the target of the appeal. The joint motion required further explanation regarding the missing records and the examination inconsistency, including whether additional development was needed.
The Court did not assign a higher percentage through the remand. The victory was another opportunity for a properly supported decision on the remaining rating dispute.
Advocacy includes defining the remedy
A successful rating appeal should identify the evidence, explain the legal defect, and state what must be reconsidered. It should also accurately describe the favorable findings that remain intact. In this case, the record review and legal memo supported a focused challenge to the unresolved part of the claim.
Discuss your Board appeal
I represent veterans and their families at the CAVC. Learn about my appellate representation or request a free Board decision review.
For more about this issue, read our related appeal guide. The ordinary Court filing deadline is 120 days after notice of the Board decision is issued. Contacting a law firm does not extend that deadline.
Past results do not guarantee a similar outcome. A remand requires further proceedings and does not itself award benefits.
