How to Use Prior Board Decisions

Board decisions cannot be used as precedent. This means that just because the Board ruled in favor of another veteran in a different case does not mean that the Board is required to rule that way in your case. Here’s a breakdown of the law concerning these issues.

The relevant regulation pertinent to other Board decisions is 38 C.F.R. § 20.1303. The regulation states:

Although the Board strives for consistency in issuing its decisions, previously issued Board decisions will be considered binding only with regard to the specific case decided. Prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law.

38 C.F.R. § 20.1303 (emphasis added).

You should not argue that other Board decisions should control the outcome of your case. Indeed, in Lynch v. Gober, 11 Vet. App. 22 (1997, the Court observed that prior Board decisions are not controlling on the outcome of a particular case. Lynch, 11 Vet. App. at 27. In Lynch, the appellant attempted to establish that the Board deviated from a pattern of Board decisions and that such deviation would be arbitrary and capricious. Id. The Court opined that the appellant’s argument in Lynch was another way of “importing precedential value to nonprecedential BVA decisions, and must fail.” Id. Similarly, in Hillyard v. Derwinski, 1 Vet. App. 349, 351 (1991), the Court noted that the appellant had urged the Court to use other BVA decisions in a precedential manner. The Court in Hillyard noted, however, that other Board decisions have value as argument in support of an appellant’s claim. Id. It is also noteworthy that in a footnote in Conary v. Derwinski, 3 Vet. App. 109 (1992) the Court took cognizance of a prior Board decision because the Secretary had offered a remand in light of the prior Board decision, and all parties agreed that the facts of the prior Board decision were indistinguishable from the decision on appeal. Conary, 3 Vet. App. at 116.

If there are other Board decisions that were favorable to a veteran and the facts are similar to your case, we still recommend submitting them but specify that they are offered as argument only. In addition, other Board decisions can be useful in impeaching VA doctors. For example, our office had a case involving a low back disability that was caused by a service-connected knee problem. The VA doctor wrote a report saying that medical science did not recognize a link between a knee problem and a low back disability. We found another Board decision where the VA doctor did find such a link and the Board granted service-connection. We submitted the other Board decision to impeach the VA examiner.

In other situations, other Board decisions may make reference to relevant research regarding your case. The other Board decision, if submitted, could trigger VA’s duty to assist. As an example, I had a case involving a blue-water Navy veteran. He argued that his ship went close enough to shore to be considered in-country service. As proof, he submitted another Board decision where the Board had granted a veteran of the same ship PTSD based on having received small arms fire from shore. The other Board decision referenced research. In that case, we successfully argued that the other Board decision made reference to research that the VA had a duty to obtain.

There may be other possible uses for other Board decisions. Just keep in mind that they cannot be used as precedent.