You’ve heard the old saw that a weatherman can be wrong half the time and still keep his or her job? Well, in my experience, the same can be said of the Board of Veterans’ Appeals. Historically, between 75% and 80% of Board of Veterans’ Appeals decisions appealed to the U.S. Court of Appeals for Veterans Claims (CAVC) are vacated, reversed, remanded or referred back to the BVA to fix its mistakes.
My day job – when I’m not writing this blog – is to represent veterans and survivors before the CAVC and U.S. Court of Appeals for the Federal Circuit. As an attorney who spends the bulk of his days working with hundreds of veterans who have been denied benefits by the Board of Veterans’ Appeals, I can tell you that it doesn’t take long doing the work to see the BVA making the same mistakes over and over again.
In fact, I had a chance to sit down with the BVA’s Chairperson in early 2018, and suggested to her that if she really wanted to improve the quality of BVA decisions, if she had additional training for Board of Veterans’ appeals attorneys and judges in about 20 areas of veterans law, their reversal and remand rate would drop considerably.
I’m going to list for you the Top 10 errors that I see in Board of Veterans’ Appeals decisions. I want you to keep in mind, however, that these are not the ONLY mistakes that BVA judges make, just the most common ones.
It is always a smart idea to hire an attorney to represent you at the Court of Appeals for Veterans Claims.
First, it doesn’t cost you anything. If you win at the Veterans Court, the government pays your attorney out of their operating budget, not out of your past-due benefits. Learn how to choose the best attorney for your CAVC appeal by reading my FREE eBook – How to Choose a VA Claims Attorney.
Second, the Court of Veterans Appeals is 100% adversarial. While the job of the government’s attorney is to prioritize justice over wins, things don’t always play out that way. While I think many of the attorneys at the OGC are giving their best, there are a couple who just like to win and, as a result, they can make life very difficult for a veteran handling their own CAVC appeal pro-se. Additionally, since CAVC attorneys spend their professional lives duking it out with government attorneys, we can often see traps long before they become a problem. We know how to put together a legal strategy to bypass the trickery of the VA.
Third, I think that you have about an 80% chance of winning before the Board of Veterans’ Appeals. This doesn’t mean you will get the benefits granted by the Veterans Court – this is a very rare outcome. However, because most BVA decisions contain some kind of error, there is really no reason NOT to appeal a BVA decision. Not sure? My law firm is happy to look at your BVA decision to see if there is a possible error for appeal to the CAVC – just click here and upload your BVA decision.
10. BVA decisions decide survivor’s DIC appeal before addressing Accrued Benefits.
Generally, accrued benefits are available to a surviving spouse when a veteran passes away while his or her claim or appeal seeking service connection is still open and pending. Under the current law, the surviving spouse can substitute into the veteran’s claim or appeal and pursue it to, hopefully, a grant of service connection.
DIC is available to a surviving spouse in two scenarios: 1) when a veteran’s service-connected condition plays a contributory role in facilitating the cause of death, and 2) when certain statutory requirements are met.
The mistake the Board of Veterans’ Appeals often makes is that they deny the surviving spouse DIC before the address the accrued benefits claims. This is critical because in an accrued benefits claim, the survivor is trying to prove service connection. If he or she is successful, then they can show that the service connected condition played a contributory role in “hastening the veteran’s death.”
By denying the DIC claim of a surviving spouse before it acknowledges or addresses the surviving spouse’s accrued benefits claim or appeal, the BVA effectively denies the survivor the right to win his or her DIC claim.
9. Failure to consider and earlier effective date based on an open and pending claim.
The effective date is the 4th pillar of a VA claim. It is how the VA decides how much past-due benefits a veteran is entitled to. The basic formula is that, to find the amount of past-due benefits owed a veteran, you multiply the dollar value of the impairment rating from the VA’s annual disability rate tables by the number of months between the date of the grant and the effective date of the claim.
So, getting the right effective date can mean the difference between a few thousand dollars in past due benefits and, often, tens or hundreds of thousands of dollars in past due benefits.
While there are many, many ways to determine the effective date of a particular claim or type of claim, this is the one that the Board of Veterans Appeals almost always misses.
The rules governing whether a claim or appeal is open and pending can be confusing but, generally speaking, if a veteran’s current disability is reasonably encompassed in an earlier claim that has not been finally decided, it is open and pending.
When a veteran is granted service connection by the VA, they are supposed to look for any open and pending claims seeking the same benefit. I’ve seen open and pending claims 40 – or more – years before the current grant of service connection.
The BVA often says that they have looked for open and pending claims, but I’m here to tell you that they rarely do.
8. The BVA decides your appeal before giving you the full 90 days it said it would.
So most of you know this BVA letter – it’s the one that says you have 90 days to submit additional evidence or argument, or change your representative, unless the BVA decides your claim earlier.
In actuality, these letters are unlawful. The CAVC has told us that if the veteran’s claim is remanded from the Veterans Court to the Board of Veterans’ Appeals, and the BVA issues the 90 day letter, the BVA may NOT decide the appeal before the 90 days expire.
There is currently an appeal pending decision by the Court of Appeals for Veterans Claims in which it is expected that the CAVC will decide if this same rule – that the BVA can’t decide an appeal earlier than the 90 days it provides – applies to all cases or just CAVC remands. My money is that the CAVC decides that 90-days is 90 days, not less than 90-days, for all BVA appeals. But I’ve been wrong before. See Williams v. Wilkie, No. 16-3988
That said, about 90% of the time, the BVA is issuing a 90-day letter, and then deciding the appeal in less than 60 days. For now, if you are on remand from the CAVC and that happens, the BVA has acted unlawfully and their decision, if it is unfavorable, can be vacated by the Veterans Court. In any other appeal, there is a strong likelihood that the BVA has acted unlawfully – and you should appeal to the CAVC to ensure your appeal is protected when the Veterans Court decides the issue in Williams.
7. The BVA finds a veteran or witness lacks credibility.
Credibility in VA claims and appeals is a tricky subject.
First, while legal credibility has little to do with telling the truth or lying, many veterans feel the BVA is calling them a liar when they say a veteran or his/her evidence lacks credibility. For this reason alone, the Board of Veterans’ Appeals should make adverse credibility findings sparingly.
Second, as one law professor notes, the BVA’s credibility approach may well violate the US Constitution – or basic principles of fair process.
The current law requires the BVA judge lay an adequate foundation for an adverse credibility finding. That foundation – stripped of all its wondrous legalese – requires the BVA point out the conflicting pieces of evidence, explain how they conflict, why that evidence is material to the decision, and how that conflict in evidence is an issue of credibility and not of the weight of the evidence.
In reality, most credibility assessments appear to be the BVA judge’s “gut check” – he or she thinks the veteran is making something up, or doesn’t quite believe that something is possible.
Most times, BVA findings of adverse credibility cannot withstand judicial scrutiny, so it’s important for veterans to consider appealing BVA decisions that deny a benefit on the grounds that the judge didn’t find the veteran or a witness credible.
6. The BVA does not address the competency of the VA’s C&P opinion authors.
In the real legal world, a party to a lawsuit who wants to use an expert to establish some fact – such as causation of a disease or disability – would have to make an offer of proof to establish the expert’s competency.
Not so in VA Land. The VA’s experts are presumed competent, and Veterans experts are not. (This is how a non-adversarial system legal works – it gives all the benefit to the party with the deepest pockets).
Now, I and a few other lawyers are working to change this rule, and I suspect in 5 – 10 years, it will be gone.
For now, though, Veterans should know that the presumption of competence of a VA C&P opinion author only applies until a veteran challenges that examiner’s competency, methodology, expertise, etc. Once a veteran makes that challenge, the BVA is supposed to address the competence of the VA’s examiner to render the opinion sought.
Of course, that rarely happens, and when it does, it’s because the Board of Veterans’ Appeals makes a conclusory statement like “The VA’s doctors are competent.”
When the BVA fails to address the competence and expertise of a VA examiner, in the face of a challenge to that examiner’s competence, the BVA errs.
And they make that mistake a LOT.
5. Failure to produce a C-file.
Veterans stand next to no chance of prevailing in their BVA appeals if they have not seen the records the Board of Veterans’ Appeals will rely on to make its decisions to make its decision.
So, if you do not have a copy, or you feel like you are in the dark about what the BVA is looking at in making its decision, make a request for your C-File before the BVA issues a decision.
If the BVA fails to send you a copy of your C-File before its decision, it violates its own regulation, and commits remandable error. In a time when the Board of Veterans’ Appeals is slamming out decisions 4-8x faster than it ever has in its history, BVA judges are not going to slow down the BVA docket to look for, no less fulfill, requests from veterans and their advocates for C-Files.
When the BVA fail to send it though, an adverse decision (i.e., a denial of service connection, rating or effective date) can be vacated for legal error.
Need to learn HOW to get your C-File? I have a 3 hour video course that will show you everything you need to do, and give you every form you need to use, to get a copy of your C-File from the VA.
4. TDIU – factors other than work and education.
This benefit is NOT an unemployment benefit – veterans can and do work while receiving TDIU.
Nor does TDIU require you to be physically unable to perform the essentials of a job.
Instead, TDIU looks at whether your service connected disabilities are interfering with your ability to get and keep a sustainable (i.e., liveable) income. The primary consideration in this benefit focuses on 2 factors: your vocational and educational training, and your employment history.
However, the Board of Veterans Appeals often strays far afield of these criteria.
They frequently consider a veteran’s age – since this veteran is over 65 and retired, he can’t get TDIU, they say. They’re wrong – age is not a factor for TDIU eligibility.
Other times a BVA judge will consider that the veteran is not unemployed – saying that as long as she has a job, a veteran cannot get TDIU. The BVA is wrong, though: a veteran may have income from employment that is considered “marginal employment” and still receive TDIU.
And on still other occasions, BVA judges make ridiculous assertions why a veteran cannot receive TDIU. I saw a BVA decision, once, where a BVA judge denied TDIU because (I’m paraphrasing) “If the veteran can walk his dog, he can get a job.” Ummmm….no. That’s not the legal standard for TDIU.
The BVA makes this mistake a lot – so if you are denied TDIU, please have an accredited attorney with experience before the CAVC take a look at the decision for an appeal to the Veterans Court.
3. Lay Evidence not corroborated by Medical Evidence.
The next error is one of the top 3 mistakes that the Board of Veterans’ Appeals makes in denying a veteran disability compensation. There are several ways to attack a decision like this at the CAVC, increasing the likelihood that a veteran will prevail.
However, because the BVA’s decision sounds so reasonable, most Veterans don’t appeal it.
It goes something like this. A veteran claims his disability is related to military service, and testifies about the incident where he was injured in service. However, for any number of reasons, there is no service medical treatment record in the veteran’s file. So, the BVA says something like this: “The veteran testified that XYZ happened in service, but there are no medical records to corroborate that fact. Therefore, the BVA finds it more likely that the incident in service did not happen.
First, the absence of evidence is not proof against a claim. Think of it this way: just because nobody saw you make a 3 point shot blind-folded doesn’t mean you did not make the shot.
Second, veterans don’t need to corroborate their lay testimony. Lay evidence is probative to establish diagnoses, injuries, symptoms, etc – if a veteran can see it, feel it, hear it, smell it, touch it, or taste it, a veteran is automatically competent to testify about it. And she need not provide ANY medical evidence to corroborate her lay testimony. (Except MST survivors – another nonsense exception that makes no legal sense).
If you see any evidence that a BVA judge did not give weight to your lay testimony because you aren’t medically trained or because there aren’t any medical records to corroborate your testimony, there’s an overwhelming likelihood that the BVA deciding official committed legal error supporting vacatur (erasure) of his or her decision.
2. PTSD Ratings – failure to provide a holistic analysis
But here’s the deal: when assigning you a rating for your PTSD (or any mental health condition), the Board of Veterans’ Appeals is not supposed to symptom hunt, and treat the symptoms listing in the mental health diagnostic criteria like a checklist.
The BVA judge is supposed to consider – holistically – the impact of your mental health condition on your social and occupational functioning, and make a decision which rating most closely approximates that detail of functioning.
How often does THAT happen? It’s rare, very rare. Here are some other ways to tell if you were low-balled in your PTSD rating.
1. It’s rare that the BVA gets knee and back ratings correct.
This is the #1 error that the Board of Veterans’ Appeals makes in their BVA decisions. If the appeal involves a knee (or frankly, a lumbar/back) disability, there is about a 99.99% chance that the BVA soused it up.
Some of it is that the rating of joints like the back and knee are complicated: you can get 3 or more separate ratings, depending on how the disability affects your range of motion, the degree of functional loss you experience, the impact of pain and flare-ups on your range of motion, and more. There are minimum ratings you are eligible for. There are ratings where the criteria are fairly broad: if your disability is “moderate” or “severe” for example.
The BVA judge has to demonstrate that she understands these rating criteria, and make a really detailed analysis to show that all of the factors were properly considered and the rating most closely approximates the disability.
And, in case you have not figured it out by now, the massive BVA backlog and BVA docket does not afford BVA judges the time needed to make good, well-reasoned decisions. Nor does there seem to be a system in place that helps BVA judges stay current on the law – I’ve seen so many bad decisions follow on the heels of a change in precedent that I often wonder if they are even paying attention to the CAVC and Federal Circuit precedential decisions.
In any event, if your BVA appeal involved a knee or back rating, it’s unlikely the BVA got it right, and you may want to seriously consider having an accredited VA attorney with experience at the CAVC help you see if the BVA decision can be appealed.
If you have a BVA decision that you think is wrong, the smart thing to do is to discuss the appeal with an attorney that knows what they are doing at the CAVC. 70-80% of the time, statistically speaking, you may be able to get the CAVC to vacate and remand the BVA decision so that the Board of Veteran’s Appeals can get it right the second time around.
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First published: January 12, 2016, at 03:39
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