This case involves the application of a duplicitous legal standard by the BVA to a veteran's TDIU appeal, in what is called a "reasons and bases" error by the Board of Veterans Appeals.
While it favored a VA C&P medical opinion that the veteran was employable, the BVA recited law that medical opinions are not dispositive of a veteran's TDIU appeal.
The appeal was resolved through a joint motion to remand negotiated by Attig | Curran | Steel attorney Alexandra Curran.
The veteran had a total VA disability compensation rating of 80-percent for PTSD, a right should disability and tinnitus.
The BVA found that medical and lay evidence indicated the veteran's inability to use his right hand or arm, and his inability to work due to PTSD.
The BVA appeared to reject this evidence on the grounds that a medical professional's finding on employability is not dispositive of a TDIU claim.
Did the BVA err, then, when it relied on a VA C&P medical opinion to deny TDIU and find that the veteran was employable?
The parties agreed that the BVA erred when it failed to explain why it favored a VA C&P opinion that the veteran was employable, while relating the rule of law that a medical professional's opinion is not dispositive of a TDIU claim.
This kind of error is called a "reasons and bases" error, and is by far the most common mistake made by the attorneys who work as BVA Veterans Law Judges.
In a reasons and bases error, the attorney who wrote the BVA opinion violated 38 U.S.C. §7104(d) by failing to provide basic legal and factual reasoning that explain how it reached a certain conclusion on the law or the facts.
There are a lot of reasons that more than 75% of the BVA decisions appealed to the Veterans Court are returned to the BVA because of a reasons and bases error.
First, the BVA is spewing out nearly 80,000 (or more) decisions a year. Given the small number of attorneys serving as BVA judges, this means that the BVA judge spends, on average, less than an hour on each appeal. When flying through claims and appeals so fast, it is impossible for a BVA veterans law judge to provide adequate reasons and bases for a BVA decision.
Second, BVA judges do not appear to receive training or updates on the law from the Veterans Court or the Federal Circuit. When these Courts issue a precedential opinion, the BVA is slow to learn about them, slow to understand them, and slow to apply them.
Third, there is a culture of indifference at the BVA. For decades, the VA's leadership has tolerated - and some would say rewarded - employees serving as judges who are racist, sexist, and homophobic. BVA judges know that far less than half of its decisions will be appealed to the Court of Appeals for Veterans Claims, so they don't have to worry about being careful and thoughtful in their decisions. I am not saying the BVA judge or the BVA attorney in this case are racist, sexist or homophobic - I do not know them. I am speaking merely of the culture that is tolerated at the BVA.
If they don't provide adequate reasons and bases for their decision, there's a good chance that nobody will hold them accountable.
If your AMA or legacy appeal is denied by the BVA, there is a really good chance that the BVA inadequately reasoned its decision. If you would like help appealing a BVA decision that lacks adequate reasons and bases to the CAVC, click here to have Attig | Curran | Steel take a look at your case.
OGC Attorney: Jonathan C. Scruggs
Veteran Representation at CAVC: Alexandra Curran (link to bio)
Board of Veterans Appeals Veterans Law Judge: B.T. Knope
Attorney for the BVA: Zaheer Maskatia (link to LinkedIn Bio)
Vets’ Rep at BVA: pro-se
Date of BVA Decision: July 30, 2019
Date of CAVC Joint Motion to Remand: June 25, 2020