The Veteran served in the United States Army. While at West Point, the Veteran suffered a broken nose and a deviated septum.
Years later, the Veteran was diagnosed with obstructive sleep apnea (OSA), and he filed a claim in 2013 to service connect OSA caused by his deviated septum. To support his claim, the Veteran filed lay statements, provided medical records, and attended a 2015 C&P examination. The C&P examiner categorically denied that a deviated septum could cause OSA. Relying on the C&P examiner’s opinion, the Regional Office denied service connection, and the Veteran appealed to the Board of Veterans’ Appeals (Board) in 2015.
Board Ignored Obvious Evidence in Veteran’s Claims File
As the Veteran waited for a Board decision, he submitted two favorable independent medical opinions stating that his OSA was at least as likely as not caused by his deviated septum. In the medical opinions, the doctors reviewed the Veteran’s military and post-military medical records, cited relevant medical research, and explained why other typical causes of OSA did not cause the Veteran’s OSA.
In October 2018, the Board issued a decision that denied service connection for OSA. The Board relied solely on the negative 2015 C&P opinion. It never mentioned the favorable medical opinions the Veteran submitted.
The Veteran then hired Sean Kendall to represent him.
Attorney Kendall Appeals OSA Denial to Court
At the U.S Court of Appeals for Veterans Claims (CAVC), Mr. Kendall argued that the Board ignored favorable evidence in the record, which was a violation of the Board’s responsibility to provide an adequate statement of reasons and bases for its decision.
The Secretary agreed, and the Secretary and Attorney Kendall agreed to a joint motion for partial remand. The Board was forced to issue a new decision that considered the two favorable medical opinions.
Veterans Should Not Be Afraid to Appeal to the CAVC
Every year, the Board is under significant pressure to decide a large number of appeals. Under such pressure, even the most well-meaning adjudicator can overlook obvious evidence that supports your claim.
Don’t let a Board decision end your claim without seeking advice from an attorney. We represent veterans at the CAVC for no charge and offer free consultations. But act fast, whether you contact us or another accredited attorney, because you only have 120 days from the date of the Board decision to appeal to the CAVC.
Link to Vacated Board DecisionLink to CAVC Joint Motion for Partial Remand