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?

[IrishKing]

There is a caveat on all BVA decisions stating they are not to be used as precedent.

 

 

[Mr cue]

45 minutes ago, IrishKing said:

There is a caveat on all BVA decisions stating they are not to be used as precedent.

Doesn't say they can't be used as evidence or a road map to the rating a veteran feel they should get.

So I really feel it is up to the veteran on how or if they use a bva decision as evidence.

Any law the bva use to granted one case should be use to granted all case.

So if they choosing to not follow the law on one case.

It will be a easy win at the court.

My opinion on using bva decision 

[harry59]

I went through a similar situation about 9 months ago. I did a lot of research prior to submitting my claims and referenced every BVA decision I could find that was similar to mine and put it in my Veteran Statements with my claims. Some decisions were nearly identical to mine. It did absolutely nothing for my claims. The raters completely ignored the references and denied every one of my claims. The claims I submitted were based on my weight due to my SC back issues, so I stated in my statements that I was using my weight, which was caused by my back, as "the bridge" to my claims. The VA decision letter didn't even mention that I used a bridge to my claim. Connecting a claim to an already SC condition is referenced in VAOPGCPREC 1-2017. Unfortunately, I found that memo after I received my decision. Probably wouldn't have helped anyway. 

In any case, referencing BVA decisions didn't help me at all in my claims. 

[Phury & Rhage]

7 hours ago, harry59 said:

about 9 months ago

Unfortunately, I found that memo after I received my decision.

Good morning,

If you are still in the appeal period (sounds like you are) then you could file a Board appeal on VA Form 10182 DECISION REVIEW REQUEST: BOARD APPEAL (NOTICE OF DISAGREEMENT).  I would pick option 10B and include the memo as additional evidence.  You can also write a statement that you don't believe the VA adjudicated your claim using the applicable caselaw and that they didn't address your theory of service-connection.  They are required to give a direct decision on your theory whether they believe it is applicable to your situation or not.  For instance, if you claimed your left shoulder condition was caused by burn pit exposure in the Gulf War, the VA would have to address (in its decision) each of the 3 elements required for service connection even though there doesn't appear to be a logical link between the condition and the exposure.  It doesn't mean that you'll trigger the Duty to Assist since (absent some really good evidence submitted by you) the claim is "inherently incredible" under M21-1, I.i.1.A.4.c.  Claims That Are Inherently Incredible or Lack Merit.

Just because something is a long shot doesn't mean it isn't valuable.  I doubt there have been a bunch of claims that were properly adjudicated and that included the Bridge theory since that decision.  Your claim could help force the proper and regular application of that caselaw.

Good luck to you,

Phury

[harry59]

Thank you for the advice. It's much appreciated. 

[Lemuel]

The BVA is the sole decider of FACTS.  List a statement of facts.  "IT IS A FACT THAT..."  State the fact including referenced evidence of the fact and "precedent" decisions related to the FACT.  If the BVA decision is not stated as precedent or referring to a precedent decision it is worth mentioning but is not controlling.

CAVC Decisions are listed as NON PRESEDENTIAL or PRESEDENTIAL.