Hunt v. Wilkie: Inadequate Reasons for Credibility Finding
This case involves the BVA's rating of a veteran's service connected knee injury and a BVA credibility finding; our client appealed the BVA's decision to the U.S. Court of Appeals for Veterans Claim (CAVC).
The appeal was resolved through a joint motion to remand: the government's attorney agreed with Chris Attig's arguments that the BVA erred when it found our client "lacked credibility" and failed to consider diagnostic codes in 38 C.F.R. Table 4 (the VA Schedule of Rating Disabilities) that might have resulted in a higher knee rating..
ISSUE ON APPEAL TO THE CAVC:
There were two major issues in this appeal.
The first involved the BVA credibility determination. The BVA is required to provide a foundation for ANY adverse credibility finding in its decision. Here, the BVA noted a long history of the veteran’s lay testimony, and lay observation, of instability in his right knee. The BVA gave lesser weight to Mr. Hunt’s competent testimony of instability in his own knee joint because it was a “subjective feeling of what he considers to be “giving way” or “instability”, and “instability may be observable on diagnostic testing”. Then the BVA found the Appellant’s statements “with respect to the origin, progression, and current severity of the right knee disability lack credibility” based in part on a 2012 VA psychiatrist's note who stated Appellant was not a reliable historian about his mental health condition.
If the BVA is going to find a veteran lacks credibility - an event that we at Attig | Steel should be as rare as a tsunami in Nebraska - the BVA has to lay a very specific evidentiary foundation. That foundation involves identifying the two (or more) pieces of evidence that call the veteran's credibility into question, an explanation how they call credibility into question, and an explanation how the BVA decided which view of the facts it was going to rely on.
Because the BVA did not do any of that, and had little or no evidence to support its finding that the veteran lacked credibility, the VA's attorneys agreed the BVA erred.
The second BVA error in this CAVC appeal involved the rating of the veteran's service-connected knee injury. When the BVA rates a knee condition, it should consider a variety of factors: limitations on the range of motion, functional loss, pain and its impact on the range of motion, pain and its impact on functional loss, whether the veteran experiences flareups, the frequency of flareups and how they affect the range of motion and function of the knee joint under the conditions of daily living, and more.
The BVA decision that properly evaluates knee ratings is about as rare as snow in Houston. Sure, it can happen, but its incredibly unusual.
RESOLUTION AT THE CAVC.
The Secretary agreed that the BVA credibility determination and its knee rating were inadequately reasoned by the BVA Veterans Law Judge.
The veteran and the VA Office of General Counsel joined an agreed motion to vacate and remand the appeal back to the BVA to fix its errors.
Does this case sound like your VA Rating Decision or BVA Decision? Attig | Steel is very interested in challenging BVA credibility determinations. This issue has not been the focus of much Court precedent, and there are a lot of ways the law can be tightened up to ensure that veterans don't have to be branded with such a harsh challenge to their integrity.
If you have an adverse BVA credibility determination from the BVA and would like help appealing to the CAVC, click here to have Attig | Steel take a look at your case.
OGC Attorney: Amande Radke (link to attorney's bio on LinkedIn)
Veteran Representation at CAVC: Chris Attig (link to bio)
Board of Veterans Appeals Veterans Law Judge: M.C. Graham
Regional Office: Chicago, Illinois VA Regional Office
Vets’ Rep at BVA: Vietnam Veterans of America (VVA)
Date of BVA Decision: March 22, 2017
Date of CAVC Joint Motion to Remand: March 9, 2018
Link to CAVC Memorandum Decision