Court Of Appeals For Veterans Claims

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.

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.

In a recent case before the Court of Appeals for Veterans Claims, we achieved a significant remand for a client’s Dependency and Indemnity Compensation (DIC) claim. The Board of Veterans’ Appeals improperly denied this claim by relying on an insufficient 2015 VA examination for our client’s chronic obstructive pulmonary disease (COPD).

The 2015 VA examiner linked the veteran’s COPD to tobacco use, dismissing possible links to his Vietnam-era toxic exposure. However, the examiner failed to provide any detailed rationale for this conclusion. The court has established that a medical opinion’s value relies on clear, fact-based reasoning (Nieves-Rodriguez v. Peake). Yet, this examination only offered an unsupported opinion, lacking the analysis required to guide the Board’s decision.

The Board further assumed that our client’s lack of in-service medical records on respiratory issues proved the absence of any service-related respiratory condition. However, the Board overlooked our client’s field treatment for a shrapnel wound, which he received without leaving his unit. The Board failed to explain why the absence of in-service records implied the absence of respiratory issues, given his combat circumstances.

The court’s remand directs the Board to reassess the case, requiring an examination that thoroughly considers all relevant facts and the potential impact of toxic exposure in Vietnam. This outcome highlights the VA’s duty to provide veterans and their families with comprehensive and reasoned medical evaluations. We remain committed to fighting for veterans and their loved ones, ensuring they receive the compensation they deserve.