Case Law

[Coffee123]

Are previous BVA rulings effective information/ arguments to prove one's own case?

I have a claim submitted. I found a BVA decision in favor of the veteran that is very similar to my own. Cause of injury, situation surrounding the event, and other details are very similar to my own claim. 

If these rulings are submitted with the claim or at the C and P, will they carry any weight?

[Vync]

If they reference a precedent ruling or laws/regs, they might help. However, the specific details of the decision may vary compared to your claim. I have referenced them before, but typically focus more on the precedent rulings and laws/regs instead.

[pacmanx1]

2 minutes ago, Vync said:

If they reference a precedent ruling or laws/regs, they might help. However, the specific details of the decision may vary compared to your claim. I have referenced them before, but typically focus more on the precedent rulings and laws/regs instead.

A lot of veterans focus on BVA Decisions but fail to see or catch the precedent rulings within the BVA decisions. The BVA do not have to recognize or consider another BVA decision, but they do have to consider a precedent ruling even if they deny the claim, they should mention they considered it. 

[brokensoldier244th]

BVA decisions are for the veteran, but CAVC decisions are for the veteran AND the VA as a while (pacmax's "precedent setting decisions" up above). BVA's are good seeing IF a set of criteria- contention, secondary connections, locations served, symptoms, etc are plausible. If that series of criteria apply to you then you at least have a good idea of if others have prevailed or if your theory of SC or causation is barking up the wrong tree, and you can get some ideas of how to approach your own claim by seeing what others have done.

It helps you to filter out what may not be as strong a claim because you can look for the results of similar claims. You also can get the names of other decisions used to help decide that claim- and THOSE are the ones that you can cite for yours as well, if a similar situation applies. 

[Richard1954]

I don't think BVA decisions can not be depended on to determine how your case will br rated  no matter how simulair it is to the BVA case. I say this because I think  two  decision makers a the BVA will decide the same case differently.  It should not be this way, but my expierence tells me it is. 

For example when I was first awarded service connection for sleep apnea, Dr. Anise had written me an IMO ( the IMO did not help me gete the award). Along with the IMO, he cited a case he had won at the BVA where the veteran was awarded a 50% rating separate and apart from his asthma.  This is unusual since the VA states that certain respiratory disease must be combined into one rating, sleep apnea and asthma  by va rules can only have one combined rating. So I found this  case Dr. Anise was so proud about. I cited it in my claim for a separate rating, and the decision maker said just because someone else made a mistake doesn't mean he will make the same mistake. So I have since decided the decision makers at the BVA do what they want rather than what the rules state they should do.  

Its interesting to review the cases, but they do not have precedent.

 

[Mr cue]

Well my opinion on using a bva decision is this a lot of rater don't follow law or address cases right.

I used one when I apply for tdiu and the 60% for my neck condition.

I highlighted the condition and rating.

I also highlighted my doctor reports of the condition.

I say this because they can be used as a road map when the rater refuse to do there job or is just lazy.

An it becomes part of your record so if you have to appeal to bva . The decision like your is there.

 

[Dustoff1970]

Although it did no harm to my successful claims and appeals for past 35 years I have always among other evidence and arguments included Fed Appeals Circuit and U.S. CAVC veterans court precedent decisions that I believe supported my claim and although not supposed to I have also included some BVA decisions that were favorable with appeals similar to my claim/appeal.

VA raters probably ignored my court case references but it cost me nothing to include the cases with the claims.  More is better is my practice.  Works for me but may not for others.

I have also used identical wording found in similar to mine BVA and court cases that granted vets their appeals to argue my case for VARO or BVA to approve my claim or appeal.  No harm no foul and won my claims and appeals often in timely manner.

Must of course also have strong medical and other evidence to support your claims.

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