Client Win: CAVC No. 20-6914 (BVA failed to consider regulation for earlier effective date for Parkinson's disease)
This case involves the BVA judge's failure to consider whether a VA regulation required an effective date for Parkinson's Disease earlier than May 2017.
The appeal was resolved through a joint motion to remand.
ISSUE ON APPEAL TO THE CAVC (BVA failed to consider regulation for earlier effective date for Parkinson's disease).
In this case, the question before the Court was whether the BVA judge failed to act in accordance with the law when he denied an earlier effective date for Parkinson's disease without consider a VA regulation that extended an earlier effective date for Parkinson's disease in certain types of cases.
RESOLUTION AT THE CAVC.
This case was resolved through a Joint Motion to Remand.
The parties agreed that the BVA judge failed to consider 38 C.F.R. §3.114(a)(1), which applies when service-connected disability benefits are granted pursuant to a liberalizing law approved by the Secretary.
The standard of review in cases involving the BVA's failure to consider a regulation is whether the BVA acted in a manner that is arbitrary & capricious, or not in accordance with the law, when it failed to consider a potentially applicable rule that would have afforded an earlier effective date for Parkinson's disease.
Specifically, the regulation says that “[i]f a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue.” 38 C.F.R. §3.114(a)(1).
In this case, the VA issued a liberalizing law in 2010 that recognized Parkinson's disease as a condition presumptively associated with Agent Orange exposure. See 75 Fed. Reg 53202 (August 31, 2010). The veteran filed a claim for service connection of Parkinson's disease (due to Agent Orange herbicide exposure) in September 2010. Evidence of the veteran's diagnosis and its nexus to service were in the record at the time of the May 2012 denial, and when the VA ultimately granted service connection in a subsequent decision, it should have considered whether the liberalizing law effective date rule yielded an effective date for Parkinson's disease equal to the date of the Sep 2010 claim to service connect Parkinsons.
Effective dates in VA disability claims and appeals are tricky.
The general effective date rule is that the claim is "effective" on the later of two dates: the date the entitlement arose or the date the claim was filed. But there are many exceptions to this rule. Some of those rules come from regulations, some from caselaw. Some apply only to certain conditions, like the rules that allow an earlier effective date for Parkinson's disease and other agent orange herbicides in certain unique scenarios. Some earlier effective date rules apply to different elements of the service connection claim.
The only way to know for sure if the VA gave you the earliest effective date for Parkinson's disease - or for any condition in your VA claim or appeal - is to talk to an attorney whose entire work-life is spent studying these rules.
If you believe the VA or BVA issued a decision that failed to consider a regulation or did not give you the earliest effective date for Parkinson's disease or its residuals, click here to have Attig | Curran | Steel take a look at your case.
OGC Attorney: Debra Bernal (link to attorney's bio on LinkedIn)
Veteran Representation at CAVC: Haley Smith (link to bio)
Board of Veterans Appeals Veterans Law Judge: M.H. Hawley (link to blog posts involving this BVA VLJ)
Attorney for the BVA: S. Ferguson
Vets’ Rep at BVA: Carol J. Ponton, Attorney (link to attorney's bio on Linked In)
Date of BVA Decision: June 9, 2020
Date of CAVC Joint Motion to Remand: May 5, 2021
Link to CAVC Joint Motion to Remand