Jump to content
  • Latest Donations

  • Advertisemnt

  • 14 Questions about VA Disability Compensation Benefits Claims


    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
    Continue Reading
  • Ads

  • Most Common VA Disabilities Claimed for Compensation:   


  • Advertisemnt

  • Advertisemnt

  • Ads

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

Sponsored Ads

  • Searches Community Forums, Blog and more

  • Donation Box

    Please donate to support the community.
    We appreciate all donations!
  • Available Subscriptions

  • 0

Referencing BVA Decisions


My disability claim is currently at the DRO level and I am trying to gather additional facts and information to support my claim. While conducting research, I came across several BVA decisions that support my claim. While discussing my claim with my VSO, she informed me that I am not able to reference BVA decisions in my claim. Is this true? I understand that each BVA case is specific to each veteran, however in my case it doesn't make much sense.

Amongst other things, I am service connected for a rare terminal disease called Aggressive Systemic Mastocytosis. Since there is no rating code for this disease, the disease must be rated analogous to a ratable condition within the Hemit and Lymphatic System. The VA rated my disease under anemia and assigned a 0% rating. I discussed this decision with my doctor who was outraged that the VA would rate my condition under Anemia, which she stated is not even close to being analogous to Aggressive Systemic Mastocytosis. I provided my doctor with the Hemic and Lymphatic rating schedule which she determined that the only analogous condition on the list was Leukemia. In fact, many times Aggressive Systemic Mastocytosis will actually progress to Acute Myeloid Leukemia.

My doctor wrote a detailed letter explaining why my disease should be rated as Leukemia vs. Anemia, as well as a detailed explanation of my disease progression, constant need for aggressive treatment, and continuous medical observation. Additionally I discovered a couple of BVA decisions where the BVA rated Systemic Mastocytosis under rating code 7703 (Leukemia). When I provided these documents to my VSO today, she informed me that I am not able to reference BVA cases in my claim. Is this accurate? Am I able to reference BVA cases in support of my claim?

Share this post

Link to post
Share on other sites

5 answers to this question

Recommended Posts

  • 0

Not exactly.  BVA case law is "non precedentail" which means its law is non binding.  However, 2 kinds of CAVC cases are precedenial:  En Banc, and Panel decisions.  The idea is this.  When all the judges (en banc) get together and render a decision, that decision is binding on other judges, that is, precedentail.  However, neither single judge CAVC decisons, nor BVA decisions are precedential.  

What all this means.  READ the applicable CAVC decision.  They often cite case law from Precedential case law, and you can do that also.  

In my opinion, your new letter from your doc is "new and material evidence" and should help your appeal.  However, even tho Berta sometimes uses BVA case law, just understand that another judge does not have to honor what that judge decided.  Its non precedential.  

Share this post

Link to post
Share on other sites


  • 0

I appreciate the response as it clarified everything for me. One question I do have is this: My VSO refused to accept the BVA case as a reference in support of my claim. Knowing that the DRO does not have to accept the findings in the BVA case, I still think it would have a some sort of influence on my claim, showing what others have rated this rare disease under in the past. I think my VSO was wrong in refusing to accept the reference (whether it has any weight on my claim or not). What are your thoughts? Do you think a non-precedential case would have any weight in the support of a claim?

Share this post

Link to post
Share on other sites
  • 0

Do you have an IMO/IME that follows the IMO criteria here at hadit, from a private doctor.

BVA- their decisions ,based on the medical evidence, are decisions for individual veterans. Every disability is unique to the specific veteran based on a thorough review of all evidence.

However legal statements by BVA are binding on all decisions. And those in CAVC decisions.

A diagnostic code is a legal entity. It sounds like they will give you an analogous DC.

This is a personal example of what I mean.

Decades ago I had filed an I-9 appeal. I had subsequently won that claim at the VARO level. I didnt withdraw the appeal...didnt even know I could do that.

The BVA stated correctly that appeal was a moot issue. But they went on to say that if I succeeded in a direct service connected death ( This was a Section 1151 /FTCA death), then the VARO would have to refund to me a very large offset amount to my 1151 DIC.

I subsequently proved 3 separate direct SC death issues. The first issue was an award for direct SC death of my husband due to undiagnosed and untreated DMII from his exposure to AO in Vietnam.

This was not part of my FTCA case. It was filed about 5-6 years after the 1151/FTCA matter was settled.

I sent eh VARO the whole BVA case highlighting their statement as to the offset refund.They refused to pay me. They had also refused to reply to letter I had stating that the offset amount had been recovered but still they were taking my DIC check and I had never received a proper DIC check at that point.

I then called up General Counsel and got the lawyer who had settled with me on behalf of the USA.

I faxed him the BVA decision. Some big honcho from OGC called my VARO. The check was in the mail.

Regional Counsel also had my files and had to confirm my FTCA case info.He called CUE on them beause when he saw my letters about the offset, and checked into it, he got them to pay me about 40,000 more, solely do to their error on the DIC offset. OGC DC got them to pay the FTCA offset refund.

This is what I mean....the BVA had made a legal statement in the moot claim decision.

Nothing had changed in VA case law on that since the older decision. 1999-2000?

The BVA decision I used was legal evidence. The OGC squared this away immediately with the RO. The VA OGC and the BVA can read.

One other point......I had so much medical and legal evidence for my AO DMII claim that, like all of my past claims, the RO could have awarded it.

Unfortunately the BVA stated some of it- the whole list could have helped others- and said the claims was "at least "in Relative Equipoise" because the evidence FAR outweighed the RO C & P examiners crap.

Also I asked BVA for a Remand because my VCAA rights were violated.

They remanded instead for one more C & P exam and I knocked that down myself with my already established viable lay medical opinion. and sent my rebuttal directly to the BVA  who agreed the exam was too speculative, did not consider it , stated I was correct as to the VCAA violation, but rendered that issue moot because they awarded the claim.

What you might want to do is this----search the CAVC web site or maybe the case is still here....

years ago a veteran had a heck of a time  with his AO disability- of a leukemia nature was not on the AO presumptive list. With a strong IME ,after years of denials, the CAVC awarded his claim.

I will try to find it because in that CAVC case the entire decision was of a legal nature in regards to the veteran;s medical condition.

Edited by Berta

Share this post

Link to post
Share on other sites
  • 0

This member might have his email addy open...it has been years since this post:

in his profile----is story might help you.Dis regard the argument in the posts........it has nothing to do with the subject.

Perhaps there is something at CAVC that can help- CAVC cases that are deemed precedent decisions are acceptable evidence for the VA.

Share this post

Link to post
Share on other sites
  • 0

I cant find what I was looking for---a CAVC award for a similar situation. I posted the story here years ago....

Can you scan and attach here the VA decisions that prompted the DRO hearing?

We need to see the VA rationale for denying the claim, the evidence list from the decision and it would be great to see the C & P exam too.

Cover C file # and your name

Is the IMO/IME new evidence that VA has not seen yet? Or did they have that but ignored it in the decision?

This is a DRO review that can change everything for you. Is this an in-person DRO hearing?

Will someone on your POA be at the hearing with you?




Share this post

Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now

  • Ads

  • Ad

  • Latest News
  • Our picks

    • SHOW YOUR SUPPORT: Ad Free Subscriptions to the Forum available
      Ad free subscriptions are available for the forum. Subscriptions give you the forums ad free and help support the forum and site. Monthly $5 Annually $50 https://community.hadit.com/subscriptions/

      Every bit helps - Thank you.

      • 0 replies
    • Choosing a VA Disability Attorney Means Learning What Questions to Ask
      Choosing a VA Disability Attorney Means Learning What Questions to Ask. Chris Attig - Veterans Law Blog 

      <br style="color:#000000; text-align:start">How to Hire an Attorney For Your VA Claim or Appeal Free Guidebook available on the Veterans Law Blog

      I got an email the other day from a Veteran.  It had 2 or 3 sentences about his claim, and then closed at the end: “Please call me. So-and-so told me you were the best and I want your help.”

      While I appreciate the compliments, I shudder a little at emails like this.  For 2 reasons.

      First, I get a lot of emails like this.  And while I diligently represent my clients – I often tell them we will pursue their claim until we have no more appeals or until we win – I am most assuredly not the best.

      There are a LOT of damn good VA Disability attorneys out there.  (Most, if not all, of the best are members of the National Organization of Veterans Advocates…read about one of them, here)

      Second, I don’t want Veterans to choose their attorney based on who their friend thought was the best.  I want Veterans to choose the VA Disability attorney who is BEST for their case.

      In some situations, that may be the Attig Law Firm.

      But it may also be be Hill and Ponton, or Chisholm-Kilpatrick, or Bergman Moore.  Or any one of the dozens of other attorneys who have made the representation of Veterans their professional life’s work.

      There are hundreds of attorneys that are out there representing Veterans, and I’m here to tell you that who is best for your friend’s case may not be the best for your case.

      How do you Find the Best VA Disability Attorney for your Claim?

      First, you have to answer the question: do you NEED an attorney?

      Some of you don’t...
      • 1 reply
    • VA Emergency Medical Care
      VA Emergency Medical Care
      • 3 replies
    • Veterans Appeals Improvement and Modernization Act
      Veterans Appeals Improvement and Modernization Act
      • 0 replies
    • Thanks Berta for your help. I did receive my 100% today for my IU claim on 6/20/2018. It only took 64 days to complete and it is p&t. Thanks for your words of wisdom. 

Important Information

{terms] and Guidelines