Citing BVA Decisions

[JKWilliamsSr]

Has anyone cited BVA decisions in an appeal?  The reason I ask is I found some BVA decision that are very relevant to my appeal.   I know that BVA decision are not precedent setting and my citing is not claim that.  Only to point out that recent appeal grants speak directly to the issue I have. 

I tried searching the forum because I thought this was asked before but could not find anything.

[broncovet]

You can do that, BUT, Instead I recommend citing the CAVC or Federal Circuit cases "which the BVA cites".  

 

[Dustoff1970]

Yes the Federal Appeals Circuit court and CAVC court precedent decisions of 3 or more judges are fine to cite in both your claims and appeals and I have done so on many occasions to support my claims and appeals. 

Even though BVA decisions are not precedent for supporting your claims/appeals I still do so on  some occasions also. They can and probably do  ignore the prior BVA decision I use in addition to other favorable evidence in my favor.  Doesn't hurt one bit as I am not concerned about the so called "work load" on the well paid "hard working VARO raters".  You come first over and above VSOs and raters.

I also often use same written arguments, statements, reasons given by the courts and BVA in their favorable decisions granting vet benefits in supporting my own appeals and/or claims. Works for me.

My comment is not legal advice as I am not a lawyer, paralegal or VSO.

 

[Richard1954]

I have cited BVA decisions,  one in particular was a veteran who received separate awards for Asthma and sleep Apnea, his IMO was written by Dr. Anise.  I tried to get separate ratings and even paid Dr. Anise to write my IMO. The BVA stated that just because one veteran gets an award  based on the same issue doesn't make his award correct.  When I contacted Dr. Anise and sent him a copy of my denial, he would not respond. His silence told me that while he braggs about this case on his web pages, he must really think he was just lucky to get the award granted. Anyway, I get creative, I cite BVA and the courts as well a provide medical articles.  Anise was the first and only time I paid for an IMO, and frankly it was a waste of money and I will never do it again. I even tried to get Dr. Bash  to write an IMO for the same issue,   he wanted thousands of dollars and his staff was really hard to work with. 

[Vync]

Also, don't forget M21-1 (for compensation claims). I have cited them at all levels, primarily because it shows how the legal concepts were applied. In one phone call with a DRO, when we discussed application of a BVA decision, they actually told me that they learned something new and confirmed it was reflected in the M21-1 application guidelines.

[broncovet]

You can cite the opinion of your three year old neighbor kid, but its unlikely to change the outcome.  I like to cite precendential  decisions, but some do cite BVA decisions. 

I dont like giving VA an "easy out"..to say "Phoey on those BVA opinions..they dont matter".   

[Dustoff1970]

Sorry for your disappointment Richard but in my two Appeals to the BVA Dr. Anaise medical nexus opinion was extremely helpful in my winning my OSA Sleep Apnea 50% claim due to my long term PTSD and ptsd meds.  This successful OSA appeal resulted in my receiving SMC-S status with over 5 years back pay of around $18,000. And he won a remand from BVA heart disease increase appeal that is still pending and I fully expect to win that claim eventually.

I did send him extensive amount of copies of VA medical records since 1985 and Army Nam and Japan records of 1970 plus prescription medicine copies and relevant family doctor medical records since I was a teenager.   My records helped him write a very detailed 12 or 15 page nexus opinion plus he included many pages of medical references to support his nexus.

He only charged me $1500.00 (dirt cheap to me) for both two separate medical nexus opinions for two separate claims. The BVA search site and even Google search will find those BVA decisions he won and few he lost such as yours.

These additional ratings assisted by him helped me change from P&T TDIU to P&T 100%.  All other many claims and appeals I have won over 37 years has been own my own without a doctors MO.  One important PTSD claim the VA examiner did issue a favorable opinion (1999) that gave me 70% PTSD and TDIU.

Over the years I have read numerous BVA decisions granting vets their appeals based upon entirely or in part Dr. Anaise's opinions and is reason I chose him.  You must have a very weak case so save your money and go pro se as by now you know how to.  Search all thru your records again for supporting items in VA, private and military STRs or find if you can free doctor's opinions.  I hear they are out there somewhere.  If you post a copy of the reason and basis for the denial/s then others on here may be able to assist you

My comment is not legal advice as I am not a lawyer, paralegal or VSO

 

Edited May 25, 2022 by Dustoff 11