The Board denied my client’s claims involving radiculopathy of both lower extremities while stating that the medical records contained no opinions about the condition’s cause. A private medical opinion was already in the record. My appeal focused on the Board’s failure to address that evidence before reaching its conclusion.
Listening and checking what the Board could consider
I listened to my client and reviewed the Board decision, the private opinion, and the submission history. The timing was important because the claim had proceeded through a Board hearing. The opinion had been received within the applicable 90-day period following that hearing.
That review established more than the existence of a favorable document. It addressed why the document belonged in the evidentiary record the Board was considering. I then compared the opinion with the Board’s findings about an in-service event and the cause of the radiculopathy.
The decision had not adequately discussed the opinion before stating that the relevant medical support was absent. That was the gap I developed for the Court appeal.
Explaining the error in a legal memo
I drafted a legal memo connecting the private opinion, its receipt within the evidence window, and the Board’s stated reasons for denial. The argument was grounded in the Board’s obligation to provide adequate reasons or bases under 38 U.S.C. § 7104(d)(1).
A favorable opinion does not automatically require an award. The Board may assess its reasoning and weight. But it must address material evidence rather than reach a conclusion that leaves that evidence unexplained. My memo kept the focus on that reviewable error instead of asking the Court to make the underlying medical determination itself.
The remand result
I won a CAVC remand of the bilateral lower-extremity radiculopathy matters. The joint motion called for the Board to provide an adequate explanation addressing the private medical opinion.
That result reopened the path to a properly reasoned decision. It did not itself establish service connection, resolve every medical question, or assign disability ratings. The successful appellate work required the overlooked opinion to receive the consideration missing from the original denial.
Why submission history can be decisive
An evidence-based appeal requires attention to both substance and procedure. What does the document say, and was it submitted when the Board could consider it? Here, answering both questions allowed me to develop a precise challenge supported by the record.
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.
