Precedent: Green — BVA Decisions Aren’t Evidence (Also: Discretion to Remand Under AMA)

BVA decisions issued outside an evidentiary window are not evidence and can be considered by BVA.

Decision

Facts

• Veteran continuously pursued both service connection for an acquired psychiatric disorder and a TDIU based on that disability. He eventually opting into the AMA for an appeal to the Board.
• The Board granted service connection for the psychiatric disorder, but stated that as a matter of law it could not grant or remand TDIU because at the time of the decision on appeal service connection was not granted for the disability underlying the TDIU claim. The Board declined to remand, stating that AMA only allowed for remand for a pre-decisional duty-to-assist error.
• While the Veteran’s appeal from the Board decision was pending at CAVC, VA assigned a staged rating for the psychiatric disorder and then granted a TDIU from the date the Veteran first met schedular criteria.

Relevant Law

• 38 USC 7113(c)
• 38 CFR 20.303
• 38 CFR 20.802(a)
• Aviles-Rivera v. McDonough, 35 Vet. App. 268 (2022) (defining evidence).
• Hime v. McDonald, 28 Vet. App. 1 (2016) (a Board decision is not evidence).

Court Analysis

1. The Board was not required to deny a TDIU. Evidence obtained within the proper evidentiary windows supported service connection for the underlying disability. But the BVA’s service connection decision itself was not evidence. Thus, per the Board’s own reasoning about what it would have done if it could consider the grant of service connection, it should have remanded–which it is empowered with discretion to do “for correction of any other error by the [AOJ] in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the appellant’s claim.” 38 CFR 20.802(a).
2. The appeal to CAVC was not moot. Although TDIU was granted by the RO during the CAVC appeal, the effective date was set years after his initial claim for a TDIU. The Court determined that the Board decision denied TDIU as a matter of law prior to the current effective date, so the issue wasn’t moot.

How We Use This:

1. This case indicates the CAVC’s leaning that there is still a legal requirement to remand inextricably intertwined claims under the AMA and that 20.802 permits the Board to do so even absent a duty-to-assist error.
2. The Court’s determination that the appeal was not moot suggests that we should always appeal the Board’s denial of TDIU even if we could still pursue it other ways at the RO.