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Board of Veterans Appeals Errs If It Merely Adopts Negative C&P Opinion

I’ve been thinking a lot lately about this comment made last year by the Court of Appeals for Veterans Claims in the Briggs v. Shulkin decision:

The [Board of Veterans Appeals] decision reads as though the Board merely regurgitated the VA opinion’s medical history and rationale. Here, the VA examiner did not provide a substantive discussion detailing how he arrived at his conclusions. Although VA examiners do not have an obligation to provide a statement of reasons or bases for their opinions, Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012), the Board does, and it cannot avoid this responsibility by simply adopting a medical examiner’s opinion as its own. McKinney v. McDonald, 28 Vet.App. 15, 34 (2016). Briggs v. Shulkin, No. 16-4204, 2018 U.S. App. Vet. Claims LEXIS 275, at *7 (Vet. App. Mar. 8, 2018)

Maybe it’s their increased workload, but lately I’ve seen many BVA decisions where the Board does little more than adopt the opinion of an unfavorable C&P exam. Remember, the C&P exam is just one piece of the evidence. The Board must account for any evidence in the record favorable to the veteran, and must weigh that evidence in its decision. This includes statements made by the veteran, who is generally competent to observe symptoms of a medical condition.

When reviewing your BVA decision, remember that the Board cannot merely adopt the opinion of a C&P examiner. The Board has an obligation to consider all relevant evidence, explain how it weighed that evidence, and render an opinion based on all available evidence. If the Board does not, that is an error which should earn the veteran a redo of the Board’s decision.

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About the Author

Adam Werner is a partner and practicing attorney at WHG. He specializes in personal injury cases, workers’ compensation claims, and veteran disability benefits. He routinely writes about personal injury and workers comp topics for the Werner, Hoffman, Greig & Garcia blog

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