Reasons and Bases - Why a Veteran’s “Final” VA Rating Decision Isn’t So Final

Reasons and Bases - Why a Veteran’s “Final” VA Rating Decision Isn’t So Final
Mitch Wright Mitch Wright and the legal professionals at West & Dunn discuss the basics of filing an appeal of a veteran’s disability claim when the Board of Veterans Appeals provides an inadequate statement of reasons and bases. Mr. Wright is a Student Associate at West & Dunn and second-year law student at the University of Wisconsin - Madison.
In 2019, the Board of Veterans Appeals (sometimes called the Board or BVA) issued over 95,000 appeals decisions. Whenever the Board issues a decision, federal law requires that it provide a statement of “reasons and bases” explaining how it reached its decision. One of the most common reasons that the Board’s decisions are eventually overturned by the US Court of Appeals for Veterans Claims is because the Board failed to provide an adequate statement of reasons and bases.

The Decision and its “Reasons and Bases”

A BVA decision that denies a veteran’s claim can look intimidating. Often, the decision is long and points to numerous laws, regulations, and cases for support. This long list of facts and law is required by federal law that required the BVA to provide a statement of “reasons and bases” to support its findings and conclusions for “all material issues of fact and law presented on the record.”

The Court of Appeals for Veterans Claims (the “Court”) has explained that the purpose of the “reasons and bases” requirement is to enable the veteran “to understand the precise basis for the Board’s decision.” The Court has further explained that the BVA must “identify crucial findings,” “account for evidence which it finds to be persuasive or unpersuasive,” include “an analysis of the credibility or probative value” of the veteran’s evidence, and its reason for rejecting any favorable evidence.

Because this requirement is so broad, it provides veterans with multiple ways to appeal a BVA decision that denies benefits. Below are a few things that a veteran can consider when appealing his or her BVA decision because it lacked an adequate statement of reasons and bases.

The BVA Ignored or Discredited Evidence Without Explanation

If the veteran’s record contains evidence that might help support his or her claim, but the BVA ignores it, this can be used to show that the Board failed to provide an adequate statement of reasons and bases. For example, in the case that developed the “reasons and bases” standard, the BVA denied a veteran’s claim for compensation for a disability caused by an in-service back injury. Despite evidence that he complained to his doctors and family members of back pain after leaving service, his exit examination made no mention of back pain. The Court ruled that, because the BVA simply stated that the exit examination outweighed the reports of the veteran’s doctors and family without explaining why, the BVA failed to provide an adequate statement of reasons and bases.

More recently, the Court utilized this long-standing rule to overturn a BVA decision that failed to explain why it discounted a veteran’s own statements, and those of his witnesses, that he had flown in Thailand, where he was exposed to herbicides that caused him to develop diabetes and kidney disease. Because the veteran’s service records mistakenly noted that he served in Vietnam, rather than Thailand, the VA initially denied his claim. When he supplemented his claim with witnesses, historians, and former military personnel who testified that his flight routes would have consisted of layovers in Thailand, the BVA nevertheless denied his claim, noting that the evidence was only “general information,” and did not establish that the veteran himself had definitely been in Thailand. The Court found that, despite the BVA’s attempt to address the evidence, its cursory dismissal of the veteran’s evidence was an inadequate statement of reasons and bases for its denial.

The BVA Made an Error in Assessing Evidence

Even if the BVA discusses a veteran’s evidence before dismissing it, the discussion can contain errors which make the explanation inadequate. For example, when a veteran’s personal doctor, who had not reviewed the veteran’s service records, submitted a medical opinion that the veteran’s diabetes was connected to his service, the BVA rejected the opinion out of hand, on the sole basis that the doctor had not reviewed the veteran’s service records. On appeal, the Federal Circuit held that, regardless of the content or reasoning of a medical opinion, rejecting a medical opinion purely on the grounds that the doctor did not review service records constituted an inadequate statement of reasons and bases for the BVA’s rejection of the evidence.

A reasons and bases error can also stem from the BVA’s assessment of non-medical, layperson evidence. In one case, the BVA discredited lay statements from a veteran’s relatives, friends, and former Army soldiers that described the veteran’s onset of psychiatric symptoms after discharge, because there were no medical records to corroborate the lay statements. The Federal Circuit held that the lack of evidence to corroborate the lay statements, in and of itself, does not justify the BVA discrediting the lay statements outright. Thus, even if the BVA attempts to assess the credibility of the veteran’s evidence, its explanation may lack a valid, legal justification.

Reasons and Bases - The Swiss Army Knife of Veteran’s Appeals

These are just a few of the ways a BVA denial can lack an adequate statement of reasons and bases to support the decision. Because the “reasons and bases” mandate is broad, and because there are several ways the BVA can make legal errors in its reasoning, a “reasons and bases” appeal can offer veterans a variety of avenues to appeal their BVA decisions. BVA decisions often contain several legal errors at once.

A robust appeal can convince the Court to send the BVA’s decision back down, where the veteran may be able to obtain a new medical examination, force the BVA to take a second look at favorable evidence, or, best of all, force VA counsel to settle the case and offer the veteran a more favorable compensation rating. Because the strategies, structure, and arguments in an appeal to the CAVC can be so critical to whether the BVA grants a veteran benefits, it is vital that the veteran’s advocate be thoroughly familiar with how to make an effective appeal.

The attorneys at West & Dunn have years of experience and success crafting these appeals, and have been able to obtain benefits and compensation for veterans previously denied by the BVA. If you or a family member want to pursue an appeal of a BVA denial, or have other claims related to seeking VA benefits, please feel free to contact us at (608) 490-9449 or reach out online.

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