10 Common (And Costly!) Mistakes In Board Decisions
If you filed an appeal to the U.S. Court of Appeals for Veterans Claims you made a wise decision. Published statistics from the last decade suggest that the Court remanded or reversed close to 60 percent of final Board decisions. However, when analyzing a case on appeal at the Court there are several common areas where the Board tends to make mistakes.
COSTLY MISTAKE #1: The Board fails to consider favorable evidence. The Board is not required to decide the case in your favor. But it cannot reject favorable evidence without a valid explanation. If the Board ignores or mischaracterizes favorable evidence that is material, then you may be able to successfully argue for a remand.
COSTLY MISTAKE #2: The Board fails to properly analyze favorable medical reports. The Board will often improperly reject a private doctor’s opinion. The Board may reject the private doctor’s report solely because he did not state that he reviewed the claims file. It is important to remember that the Board cannot reject a private doctor’s report solely because he did not say that he reviewed the claims file. The Board may also reject a private doctor’s opinion if it is based on the veteran’s own statements about his medical history. The Board cannot reject the doctor’s report just because it’s based on the veteran’s statements unless the veteran’s statements are found not to be credible.
COSTLY MISTAKE #3: The Board relied on an inadequate VA medical exam. You will frequently notice that the VA will aggressively scrutinize and attack the favorable opinions of private doctors, but then bend over backwards to accept the negative opinions of their own doctors. Because VA tends to side with its own doctors, they frequently rely on negative reports that are not adequate for rating purposes. You want to analyze the VA doctor’s report to make sure the facts upon which he bases his conclusions are accurate. If he assumed certain facts in order to reach his conclusion, but the evidence in the file shows he is wrong about his factual assumptions, his report can be attacked as being inadequate. The VA doctor may also fail to provide sufficient reasons to support his conclusion or may fail to perform required tests. Again, these factors may be used to successfully attack a VA examination.
COSTLY MISTAKE #4: The Board fails to properly consider lay evidence. Lay evidence means evidence from non-medical professionals. The Board’s treatment of lay evidence is very important because it frequently is the only evidence you may have that documents either what happened in service or the ongoing symptoms you experienced since discharge. VA likes to discredit your statements if they are not corroborated by medical or military records. VA does not like to accept the statements of veterans. When analyzing the Board decision in your case, you should look carefully to determine if the Board rejected lay statements simply because they are not corroborated by medical or military records. In some cases, lay evidence may be the only evidence you have to document what happened in the service or the ongoing symptoms. It is error for the Board to reject the lay statements simply because they are not corroborated by medical or military records.
COSTLY MISTAKE #5: The Board fails to consider all possible diagnoses. To explain this type of Board error, it is useful to give an example. Let’s say you have a mental disability, and some of your doctors tell you it’s PTSD. So you file a claim for PTSD. The VA sends you for a C&P exam and the VA doctor says you have depression and not PTSD. The Board then denies your PTSD claim because you have depression and not PTSD. Under these circumstances, the Board is required to consider service-connection for depression even though you filed a claim for PTSD.
COSTLY MISTAKE #6: The Board fails to consider a claim or theory. This is a situation where you may not specifically make any arguments for a particular claim or theory, but the evidence you submit suggests other claims or theories. The VA is required to consider all possible claims or theories that are suggested by the evidence even if you do not specifically say anything.
COSTLY MISTAKE #7: The Board fails to make sure the VA satisfies the duty to assist. The VA is required to assist you in obtaining evidence to support your claim. This means VA is required to request records that you identify and authorize them to obtain, and it also means that VA is sometimes required to provide a medical exam. There are certain circumstances where VA must provide an exam. If you r claims file shows the following four factors, then VA will have to provide you with a medical exam: the evidence must show (1) you have a current disability; (2) something happened in the service; (3) an indication that your disability may be associated with service; and (4) there is not enough medical evidence to decide your case. If you meet these four criteria, VA will be required to give you a medical exam. The Board will often overlook the evidence that meets these four elements and fail to send your case back to the regional office for a medical exam.
COSTLY MISTAKE #8: The Board plays the role of a doctor. The Board cannot pretend to be a doctor and decide the medical issues in your case without relying on the medical reports of doctors. For example, the Board cannot piece together various medical records and come up with its own diagnosis. You must carefully analyze the language in a Board decision to make sure the Board is not violating this rule.
COSTLY MISTAKE #9: The Board fails to comply with a prior order of the Board or the U.S. Court of Appeals for Veterans Claims. If your case has previously been at the Board or the Court and was “remanded” or sent back with special instructions, the Board must comply with those instructions. If it doesn’t, it is grounds for a remand.
COSTLY MISTAKE #10: The VA failed to provide you with proper notice. Sometimes the VA fails to provide you with proper notice of all the information that is required under the law. The law requires that VA notify you concerning the types of evidence that are needed to support your claim. You should look carefully at the letters VA sends you to make sure VA has adequately informed you of the necessary information before it makes a decision in your case.