5 Common Errors in Veteran Disability Claims to appeal to the Court of Appeals for Veterans Claims

Posted about 3 years ago. 2 helpful votes

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1. Common BVA Error #1: Stegall Violations

Many Veterans disability claims have to travel through a roller coaster ride before their claim is granted - from the VARO (VA Regional Office) to the BVA (Board of Veterans Appeals), to the CAVC (Court of Appeals for Veterans Claims), and back down and up that chain several times. In the course of that roller coaster ride, both the CAVC and BVA issue orders to the VA Regional Office on how to correct certain errors in the claim. If the BVA fails to follow an order of the CAVC when it issues a subsequent decision, or if the VARO fails to follow an order of the BVA when it reviews and decides a claim on remand, then it is possible that a "Stegall" error has occurred. The solution for a "Stegall" violation is for either the BVA or CAVC to vacate the decision containing the error and remand it to the offending level (VARO or BVA) for correction. If you have a "Stegall" violation in your BVA decision, this can often be a viable grounds for appeal to the CAVC.

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Common BVA Error #2: BVA and/or VARO improperly evaluated a Veteran's Claim to Reopen his request for service connection (New Evidence)

The VARO and BVA frequently deny many Veteran's claims for lack of evidence on one of the key elements of the claim. In many cases, the Veteran is able to find new evidence relating to the element that the VARO and the BVA claimed was missing. When this happens, the Veteran should file a "claim to reopen" a prior claim as soon as possible. Oftentimes, the VARO and the BVA improperly decide that evidence was either not new or not material. Here is the correct law: 1) Evidence is new if it has not been previously considered by the VARO or the BVA. The question is whether the VARO or the BVA have seen and considered it before in prior claims. When you receive a VA Ratings Decision, look at the list of "evidence considered". If the evidence you have is not listed on the "evidence considered", and the evidence does not appear in your C-File, you have a good argument that the evidence is "new"

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Common BVA Error #3: BVA and/or VARO improperly evaluated a Veteran's Claim to Reopen his request for service connection (Material Evidence)

In Error #2, we discussed how the VARO and the BVA often fail to properly evaluate a claim to reopen a prior denied claim for veterans benefits. In a claim to reopen, evidence must be both new and material. New evidence is discussed in "error #2", above. Material evidence is "...evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to the claim." 38 C.F.R. ? 3.156(a). What does that mean? If a prior claim was denied because the Veteran failed to provide evidence of a link between a military injury and a current condition, and the new evidence (a doctor's opinion providing medical linkage, for example) tends to prove (or bears upon) that missing element, it is material. A Veterans disability attorney may be able to help you argue that a certain piece of new evidence is material to many different elements, thus improving a Veteran's chance of reopening a claim.

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Common BVA Error #4: BVA and/or VARO denied a claim that was "inextricably intertwined" with another pending claim

The most common situation for this type of error occurs when a surviving spouse seeks both DIC (Dependency and Indemnity Compensation) and AB (Accrued Benefits) after the Veteran passes away. Frequently, both the VARO & the BVA will decide (typically deny) the DIC claim, while deferring the decision on the AB claim. Because the outcome of the AB claim - which is by its very nature a claim for service connection of illnesses, diseases and injuries that should have been service-connected during the Veteran's life - can affect the outcome of the DIC claim (especially where the cause of the Veteran's death was a condition that should have been service-connected during the Veteran's life), the claims should be decided together....they are "inextricably intertwined". If you are a Veteran's surviving spouse, & the VARO or BVA deny a claim for DIC while deferring a decision on an AB claim, you may have error appealable to the CAVC.

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Common BVA Error #5: Failure to provide an inadequate statement of "reasons and bases".

The BVA can't deny your claim without explaining why. The BVA's explanation why it dismissed or denied your claim is called the "Reasons & Bases". The BVA is required by law to provide an adequate statements of Reasons & Bases for all material findings of fact &/or conclusions of law. The BVA must also provide adequate Reasons & Bases for why certain evidence was persuasive/unpersuasive, or why it found a witness credible/not-credible, and in many more situations. There are 2 reasosn for the Reasons & Bases requirement: 1) The Veteran must be able to understand the PRECISE reason a claim was denied. If you find yourself scratching your head while reading a BVA decision, or thinking "The BVA totally ignored this evidence", there is a good chance that the BVA committed a Reasons & Bases error. 2) The decision must be precise enough for the CAVC to review the decision - the Veteran cannot get justice if the CAVC doesn't understand the BVA Decision.

Additional Resources

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