76.4% of BVA decisions are wrong (and not in the Veterans favor, either!)


Nope.  I did not make this up.  This is Bart Stichman’s testimony to Congress who said it.  For those of you who dont know Bart Stichman,  he is the Executive Director of the NVLSP, and the author of much of the Veterans Benefit Manual.     (VBM)   You could look far and wide and you are unlikely to find anyone more knowledgeable of VA law than Mr. Stichman.   This VBM is not to be confused with the vA’s Dick and Jane book on Veterans Benefits.    Bart is the author of “the good VBM” not the Dick and Jane benefit manual published by the VA.

Here is the quote from Bart’s testimony to congress:

For more than a decade, the Court’s annual report card of the BVA’s performance has been remarkably consistent.  The 14 annual report cards issued over the last 14 years yields the following startling fact: of the 23,173 Board decisions that the Court individually assessed over that period (that is, from FY 1995 to FY 2008), the Court set aside a whopping 76.4% of them (that is, 17,698 individual Board decisions).  In each of these 17,698 cases, the Court set aside the Board decision and either remanded the claim to the Board for further proceedings or ordered the Board to award the benefits it had previously denied.  In the overwhelming majority of these 17,698 cases, the Court took this action because it concluded that the Board decision contained one or more specific legal errors that prejudiced the rights of the VA claimant to a proper decision.”   End of Bart Stichman quote

I note these 76% wrong decisions are NOT in the Veterans favor, because Veterans are highly unlikely to appeal a fully favorable decision!

The question that begs to be answered here is that if 76 percent of BVA decisions are wrong, what percent of RO decisions are wrong?    Would the number not be even higher than 76%, reminding you that Board Decisions have already been decided by the RO, and, in many cases.  also by a DRO who is supposed to be an experienced decision maker.

Huh?  Do you realize many of these “wrong decisions” that go to the BVA went through a DRO and a “regular” decision maker first?  So 3 wrongs make a right, right?  Wrong.

After the (wrong decision) was made by the rater, it is repeated by the DRO, and repeated again by the BVA.  Finally, at the CAVC level the error is “noticed”…and fixed, right?  Nope.  Its on to the hamster wheel, of course!

Again quoting Stichman:

“There are at least three aspects of the BVA’s and CAVC’s decision-making process that contribute to the Hamster Wheel phenomenon: (1) the high error rate that exists in BVA decision-making, which delays the decision-making process by requiring disabled veterans to appeal to the CAVC to correct these errors, which, in turn, leads to further VA proceedings on remand; (2) the policy adopted by the CAVC in 2001 in Best v. Principi, 15 Vet.App. 18, 19-20 (2001) and Mahl v. Principi, 15 Vet.App. 37 (2001); and (3) the CAVC’s reluctance to reverse erroneous findings of fact made by the Board of Veterans’ Appeals”   end of Stichman quote.

And the last question?  Since this testimony to Congress was in 2009, why hasn’t congress fixed the broken hamster wheel?

Nod’s note:

Joseph, as usual, has discovered a horrible consequence of vA jurisprudence. By not  making a decision on all the errors and just vacating with a remand to cure all the deficiencies, the Court allows the BVA to run each error through a new decision cycle like washing a shirt again and again. Result? A twenty year adjudication before we win. Ugly and unnecessary. The Court is asinine in this respect.

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4 Responses to 76.4% of BVA decisions are wrong (and not in the Veterans favor, either!)

  1. Harold Berndt Gross says:

    I was rated 20% for IBS. All of the Medical & Hospital Data from VA & Outside sources indicated a condition that should have been rated 30%. After an Appeal, it was re-rated at 30%. Does this mean the benefit starts from the original date of claim? VA will only pay from date of Appeal from 20 to 30% What should my Attorney do?

  2. Pingback: I'm not the ONLY one writing eBooks about the VA Benefits Claim Process. - I Teach What Others Keep a Secret.

  3. Jason says:

    My Physicians Assistant at the Dallas VA Hospital, Vietnam Green Beret, told me that it was all about the Money! Anything that the U.S. Government controls, will be throttled and spun in a lifetime struggle for the Veteran. Semper Fi (0311/8621-Disabled)

  4. Randy says:

    If the rater, DRO and BVA say it is a duck then it must be some fashion of duck, right? The system is yet again glaringly upside down. I see nnothing new for xxxxx amount of years. You can fill in the x’s or just add to them.

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