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WHG recently won a significant remand from the Court of Appeals for Veterans Claims for a veteran seeking an earlier effective date for his Total Disability Individual Unemployability (TDIU) claim. The Board of Veterans’ Appeals had set an April 2019 effective date for the veteran’s TDIU benefits, failing to address evidence of his unemployability dating back several years prior.
The Board must consider all favorable evidence and provide clear reasons for its decisions. In this case, it overlooked key evidence showing that our client’s severe migraines, asthma, and jaw pain rendered him unable to work well before 2019. Statements from the veteran and his wife detailed his incapacitating headaches, inability to speak without jaw pain, and asthma attacks that forced him to stop all activity. This evidence, combined with a private vocational report confirming his unemployability since at least 2015, supported an earlier effective date.
The court’s remand directs the Board to thoroughly review this evidence and reassess the TDIU effective date. This ruling emphasizes that the VA must fully address all relevant records and accurately assess a veteran’s claims.
Our commitment to veterans means ensuring that every aspect of their disability cases receives fair evaluation. We stand ready to support our clients in securing the benefits they have rightfully earned.
Our firm recently achieved a critical victory for a veteran at the Court of Appeals for Veterans Claims (CAVC). The Court vacated and remanded a Board of Veterans’ Appeals (BVA) decision due to reliance on an inadequate medical examination. This decision ensures our client receives a fair review of their claim for service connection for a psychiatric disorder.
The VA must provide adequate medical examinations when evaluating veterans’ claims. VA and its attorneys agreed that October and December 2022 VA medical opinions were inadequate. The examiners’ conclusions failed to rest on correct facts or sound reasoning, as required by law. The examination dismissed key evidence linking the veteran’s in-service symptoms to his current diagnosis of bipolar disorder.
The VA examiner speculated that the veteran’s symptoms of depression and nervousness in 1981 were common reactions unrelated to bipolar disorder. However, the veteran’s service records revealed consistent reports of depression, anxiety, and sleep problems. These symptoms, documented during service, contradict the examiner’s assertion. Additionally, the examiner dismissed a private medical opinion as speculative without valid justification.
The VA examiner also incorrectly implied that the absence of an in-service diagnosis precluded service connection. This ignores established legal precedent allowing service connection even without a diagnosis during service. The examiner’s reliance on speculative reasoning rendered the medical opinion inadequate under VA standards.
The remand directs the Board to obtain a new, factually accurate, and well-reasoned medical opinion. This ruling emphasizes the importance of thorough and fair evaluations in veterans’ claims. Our firm remains committed to ensuring veterans receive the benefits they deserve.
The Court of Appeals for Veterans Claims recently remanded a case after VA and its attorneys agreed there were errors in the Board’s handling of a veteran’s claim. The Board failed to ensure compliance with its own July 2019 remand instructions, violating the veteran’s legal right to substantial compliance under Stegall v. West.
The Board directed the Agency of Original Jurisdiction (AOJ) to obtain a vocational assessment from a qualified Veterans Health Administration Vocational Rehabilitation Specialist. The specialist needed to evaluate how the veteran’s service-connected disabilities impacted his ability to work, including providing examples of feasible employment options. If such a specialist was unavailable, the Board required a professional with “appropriate expertise” to complete the evaluation.
In December 2019, a physician’s assistant conducted a Social Work and Industrial Survey. The examiner admitted they were not a vocational expert and lacked the necessary qualifications. They failed to evaluate the veteran’s functional impairments or provide meaningful insight into his occupational capabilities. Instead, the report focused on irrelevant factors, such as the veteran’s personal history and age-related issues, without addressing the service-connected disabilities.
The Board’s review of the report was superficial. It stated that the AOJ’s actions satisfied the remand directives without analyzing the report’s quality or explaining its reliance on the unqualified examiner’s opinion. The Board also ignored the examiner’s explicit admission of incompetence to perform the requested evaluation. This oversight contravened established case law, including Wise v. Shinseki, which requires the Board to address competency issues when an examiner acknowledges a lack of expertise.
The parties jointly determined that substantial compliance with the remand instructions had not occurred. At their request, the Court ordered a remand to obtain a proper vocational assessment from a qualified professional. This decision reinforces the VA’s duty to follow remand directives and underscores veterans’ rights to fair and thorough evaluations.
This victory highlights the importance of holding the VA accountable and ensuring veterans receive the benefits they deserve.
Our firm recently achieved a critical victory for a veteran at the Court of Appeals for Veterans Claims (CAVC). The Court vacated and remanded a Board of Veterans’ Appeals (BVA) decision due to a legal error that was conceded by VA. This decision ensures our client receives a fair review of their claim for visual impairment prior to October 1, 2014.
VA agreed the Board’s decision failed to adequately address favorable evidence of our client’s visual impairment. Under 38 U.S.C. § 7104(d)(1), the Board must provide clear and reasoned explanations for its findings. In this case, the Board relied solely on a May 2010 VA examination showing corrected visual acuity of 20/20 in both eyes. It ignored medical records indicating worse visual acuity in the right eye during the relevant period.
Key evidence included:
-A February 25, 2011, VA note reporting corrected visual acuity of 20/40 in the right eye.
-A May 5, 2011, VA ophthalmology note showing uncorrected visual acuity of 20/60 with no improvement.
-An April 25, 2013, VA record documenting uncorrected visual acuity of 20/70, also without improvement.
The Board failed to evaluate the probative value of this evidence or explain why it disregarded it. The remand requires the Board to fully analyze these records and provide a comprehensive rationale for its findings. This ensures our client’s rights are protected and that all relevant evidence is considered.
This decision reaffirms the importance of holding the VA accountable for thorough and fair evaluations. Veterans deserve decisions based on the totality of their medical evidence. We remain dedicated to fighting for justice on behalf of those who served our nation.
