Determining Fair Process In A VA Disability Appeal
Here we cover the process for determining fair process in a VA disability appeal. Most VA disability claims involve at least one appeal, and many involve more than that. The BVA only rarely makes final determinations. Instead, it usually remands the matter back to a Claims Examiner. The Board’s instructions are not always clear, and they are sometimes contradictory. That was the situation in 2020’s Smith v. Wilkie.
So, persistence is one of the most important qualities a VA disability lawyer can possess. That persistence begins with a firm belief that the Veteran has a serious, service-related disability, no matter what evidence there is to the contrary.
The Veteran was in the Navy from 1988 to 1994. His SMR (service medical record) documented a knee injury and respiratory ailment, but no shoulder injury. In 2002, he visited a private physician, complaining of shoulder pain. At that point, the Veteran filed a claim for disability benefits. The Regional Office promptly denied that claim due to a lack of evidence.
At a subsequent appeal, the Veteran produced substantial lay testimony indicating he injured his shoulder in 1990, and he sought and received treatment for that injury. The Board of Veterans Appeals remanded the matter, instructing the RO to “accept as true and [sic] the Veteran’s credible lay statements regarding injuring his left shoulder in service while lowering a hatch, resulting in several weeks in a brace or sling and having intermittent shoulder pain ever since.”
Nevertheless, the RO once again denied the claim. A subsequent medical exam, which relied in part on the lack of SMR documentation, concluded that the Veteran’s shoulder injury was not service-related.
The dispute returned to the BVA. This time, that body ruled that the Veteran’s lay testimony was not credible because the additional medical evidence placed the onset of injury as 2007, more than a decade after the Veteran left the Navy.
The Veteran argued that he relied on the Board’s prior statements to his detriment. Since the Board instructed the RO to take the lay testimony into account, he “did not develop evidence or submit arguments to rehabilitate his testimony.” Furthermore, he claimed he was “denied fair process” because by the time the BVA reversed course, he was unable to present new evidence.
In response, the Secretary argued that the BVA merely told the RO to consider the testimony and not to consider it 100% credible.
The Court noted that fair process is at the heart of VA disability proceedings. Examples include the duty to assist Veterans with their claims and considering new evidence whenever possible. The Court held that the credibility determination reversal constituted a lack of fair process.
Additionally, the Court held that the BVA’s statements about lay evidence credibility were misleading. That finding underscores the point that the language in these decisions must be 100% clear and courts should resolve any ambiguity in favor of the Veteran.
Count on Effective Attorneys
Do not let one, two, or even three or more adverse decisions deter you from seeking the compensation you deserve. For a free consultation with an experienced Veterans disability lawyer, contact the Cameron Firm, P.C. at 800-861-7262 or fill out the contact box to your right. We are here to represent Veterans nationwide.
This article is for educational and marketing purposes only. Therefore it does not create an attorney-client relationship.