Bva Decision, A Precedent - Yes Or No

[ken1939]

I filed a form 9 for a BVA hearing. I am claiming headaches secondary to SC cervical DDD and also for lower extremity pain secondary to SC Lumbar DDD. My headache diagnosis is tension headaches and contraction headaches SC at 0 %. I am appealing the rating and find many favorable BVA decisions where the diagnosis is not migraine and nearly duplicate my situation The ratings are as much as 30%. My lower extremity diagnosis is radiculopathy, denied because radiculopathy is a symptom not a condition. I have found literally hundreds of BVA decisions where the diagnosis is radiculopathy and not one was denied or remanded because of the diagnosis of radiculopathy. I have read somewhere in a forum that BVA decisions cannot set a precedent. But if there are many, many of these decisions, will this be enough to prove my claim?

[broncovet]

Gosh I know you want/deserve a "yes/no" answer, but it isnt that simple.

IMHO, if you can find CAVC or even Federal cases that support your case, then cite them instead.

However, if a search of CAVC cases comes up empty, you can normally read the BVA cases which sometimes cite CAVC cases as reasons or basis for their decision.

In a nutshell, I recommend NOT citing BVA decisions to support your position UNLESS there is nothing higher. (Supreme, Federal, or CAVC). I would like to note that even CAVC single judge decisions are usually not considered "precedential". They usually have to be PANEL CAVC decisions to be precedential.

I think by "precedential" they mean that if a previous precedential case ruled the same way, they have to also. But, in a BVA non precedential case the judge CAN rule the same way the previous judge did, or he can dissent and rule another way. Its just safer and a stronger arguement to cite precedential cases.

Edited November 6, 2010 by broncovet

[broncovet]

Remember, if you cite a BVA decision, and that BVA decision was overturned by a CAVC decision, then your citation has little, if any, credibility. But if you cite the supreme court decision, then that cant be overturned.

[ken1939]

Good answer Broncovet. I will do some more research following your advice. Thanks.

[Berta]

The best way to succeed in your claim is with your own medical evidence.

The VA is quick to say to anyone sending them BVA decisions that these decisions are based solely on the BVA claimants medical evidence and are not binding on the VA regarding any other claimant.****

One thing to keep in mind too is this-

In the 6 years the VARO farted around with my -ooops I mean continued to deny my claim----

by not acknowledging ANY of my evidence- I knew the BVA would grant the award I sought.

The evidence I had was preponderant ,undebatable, and overwhelming.I felt my claim could rest on it whether or not I had any IMOs but I did get 3 IMOs.

The BVA only seemed to highlight my IMOs in the decision breezing over the 6 years of medical and legal evidence I had compiled.

Of course that was not wasted efforts because I had no problem at all getting an IMO doc to immediately support my claim

because I presented a few bits of my evidence to him in email and he called me up right away and wanted the med recs.

I was disappointed that most of my evidence was not in the BVA decision because it might have helped someone else.

The point here is that even though a BVA decision could appear to be exactly like our own claim and even the evidence might be similiar, the BVA doesn't give us every nuance to the claim they have decided by any meansMy BVA award directly hinged on a prior FTCA matter.They might have mentioned that in the decision too-I forget or mentioned in the remand- but that too involved 3 years of hard and time consuming work and no IMO at all and was awarded at the RO level.

It revealed however that there were additional unmentioned factors to my award, thus a similiar widow's or widower's claim could not reply on my BVA decision.

My long point here is I wish BVA decisions were detailed as to everything that prompted the award but those decisions could leave out much they considered in the veteran's clinical record and this is why we cannot use them to support our own claims.

**** I do suggest that for CUE claims -=if the BVA makes a Legal statement in a decision-that is something you can use as evidence.I used four BVA cases and 2 General COunsel pres ops as well as 38USC 1114 and M21-1MR for my CUE claims.

The BVA cases pointed out that even 1151 disabilities could make a veteran eligible for SMC.This was based on a legal point.The basis of my CUE.

Edited November 6, 2010 by Berta

[ken1939]

I have 2 issues:

Issue 1) Headaches diagnosed as tension headaches or muscle contraction headaches secondary to SC cervical DDD. The headaches are SC at 0%. I am appealing for a higher rating.

Issue 2) Lower extremity pain diagnosed as Radiculopathy secondary to SC Lumbar DDD. Denied. I am appealing for SC at 30%.

For issue number 1 I have found favorable BVA decisions matching my headache diagnosis where the severity and frequency are the same. The headaches are not migraine. I understand now that the BVA decisions do not set a precedent and I need to pursue a different strategy.

However, issue number 2 is a different matter. Three C and P exams have a diagnosis of Radiculopathy and one IMO does the same along with an EMG and an MRI to back them up. The DRO says Radiculopathy is a symptom not a condition. I have been denied twice for this reason and have now appealed to the BVA. It seems to me that I have plenty of medical evidence to support my claim but the sticking point is the one word, Radiculopathy. I found literally hundreds of BVA cases decided on Radiculopathy, some granted, some denied and some remanded. I could not find one single case where it was remanded or denied because Radiculopathy is a symptom not a condition. I felt certain that with all those BVA cases on my side issue number 2 would be a no brainer. As usual, though, that does not appear to be the case. As of this writing I am trying to find a data base of the CAVC decisions that do set precedents. Is there such a data base?

[ken1939]

I might have answered my own question. As soon as I searched on opinions instead of decisions I hit the mother load. The web site is: http://search.uscourts.cavc.gov/search/