Client Win: CAVC No. 21-0394, (BVA erred in denying past-due benefits in claim for an increased rating)
This case involves the BVA judge's inadequate reasoning of his denial of a veteran's past-due benefits in a claim for an increased rating due to an increase in the severity of the veteran's PTSD.
The appeal was resolved through a joint motion to remand.
ISSUE ON APPEAL TO THE CAVC (BVA erred in denying past-due benefits in claim for an increased rating)
In this case, BVA Judge David Gratz was required to decide if the severity of a veteran's PTSD symptoms worsened in the year prior to his claim for an increased rating.
Generally, in a claim for an increased rating for a service-connected disability, the effective date of the claim is up to one year prior to the date of the increased rating claim. 38 U.S.C. §5110(b)(2); 38 C.F.R. §3.400(o)(2). The key factual inquiry is whether it is "factually ascertainable" that an increase in disability had occurred within the year prior to the filing of an increased rating claim. Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010)
In this case, the BVA Judge laid out the facts of the case in the decision.
Immediately after doing so, the BVA Judge concluded that it was not factually ascertainable that the veteran's PTSD had increased in severity in the year prior to the claim for an increased rating. BVA Judge David Gratz provided no reasoning for his decision, an error that the Veterans Court acknowledged in vacating the decision and setting it aside.
This is a very common BVA error. Anytime you see the same mistake made by the BVA, year in and year out, bucking established and basic veterans law, the question is begged: why?
In this case, worst-case scenario, we have an example of the VA and BVA putting money ahead of veterans.
Best case scenario, this sort of repeated error demonstrates the flaw in logic espoused by those politicians who think government should be run like a business.
Because the regulation at issue in this case yields higher past-due benefits for veterans, the VA and BVA typically look past its effective date rule.
From the BVA's perspective, though, this is about saving money. Here's why:
Over 70% of BVA decisions contain either an error of fact or an error of law. In 2021, the BVA claims to have issued approximately 50,000 decisions. Putting these two numbers together tells us that it is reasonable to expect that at least 35,000 BVA decisions in 2001 had an error fact or law. But only about 8,300 appeals were filed at the Veterans Court in 2021. What if each of those "errors" saved the government $10,000? That's $270 million in benefits that the VA did not have to pay to veterans. Just by a Veterans Law Judge making "one" mistake. Repeatedly. Over a BVA judge's 20-year career, this simple "mistake" can "save" the taxpayer (i.e., and cheat veterans out of) over $5.4 billion dollars.
So you can see, from the VA and BVA's perspective, that the better "business" decision is to grant the smallest benefits only where you have to, and deny wherever you can. (Such a system, very much a part of the VA and BVA culture).
Bottom line: most veterans don't even know that the effective date for an increased rating claim is up to one-year prior to the date of the claim itself. If the VA or BVA issued a decision that assigned the date of the increased rating claim as the effective date, there is a good chance the VA or BVA made a mistake.
RESOLUTION AT THE CAVC.
This case was resolved through a Joint Motion to Remand.
The parties agreed that the BVA judge merely listed the evidence and then stated a conclusion, in violation of the law. 38 U.S.C. §7104(d). The parties acknowledged that the BVA has an obligation to provide a statement of reasons and bases for its decisions. On remand, the BVA judge now has to redo their work - the Court's order requires the BVA to "provide an analysis of whether an earlier effective date for a 70% rating for PTSD is factually ascertainable in the year prior to May 24, 2019."
If you believe the VA or BVA issued a decision that improperly rated your PTSD, or assigned the wrong effective date, click here to have Attig | Curran | Steel take a look at your case.
OGC Attorney: Timothy Campbell (link to attorney's bio on LinkedIn)
Veteran Representation at CAVC: Haley Smith (link to bio)
Board of Veterans Appeals Veterans Law Judge: David Gratz (link to attorney's bio on LinkedIn)
Attorney for the BVA: Athena Hemphill (link to attorney's info on "Open Payrolls" website)
Vets’ Rep at BVA: Carol J. Ponton, Attorney (link to attorney's bio on Linked In)
Date of BVA Decision: October 1, 2020
Date of CAVC Joint Motion to Remand: November 4, 2021
Link to CAVC Joint Motion to Remand