1. Duty to Notify- While processing a disability claim, the VA must notify the Veteran, prior to making a decision on the claim, of any missing evidence from the file. This includes any information or evidence necessary to substantiate the claim. Typically, such "missing evidence" includes medical records; employment information and lay evidence. If the VA's failure to notify or advise the VA of the missing evidence, can be shown to have "prejudiced" the outcome, the CAVC may remand or reverse to the VA.


2. Duty to Assist- The general rule is that the VA must make "reasonable efforts" to assist every claimant in obtaining evidence to substantiate a claim for benefits. Examples would include assisting the Veteran to obtain service records; a medical examination/opinion; relevant records held by any Federal department, including Social Security.


3. Adequate Reasons or Bases- The Board of Veterans Appeals (BVA) MUST provide an adequate reason or basis for all decisions, favorable or unfavorable for the Veteran. The four major types of BVA violations include:


• Failure to rely on independent, medical opinions.
• Failure to explain reliance on unfavorable evidence.
• Rejection of lay evidence without basis.
• Failure to base a decision on all evidence and applicable law.


4. Inconclusive Medical Opinions- The Board of Veterans Appeals sometimes makes its decision based upon an inconclusive medical opinion that does not articulate a reasoned explanation of its determination. Examples include an inaccurate factual premise; absence of a medical rationale.


5. The Veteran Gets Benefit of Doubt- Under the law, the Veteran must be given the benefit of the doubt regarding issues where the evidence is evenly split. If there is a balance of "positive" and "negative" evidence, the BVA must accept the positive evidence in favor of the Veteran's disability claim.

Veterans Disability Appeal Attorney and Lawyer, Randy Zeldin, Esq. is proud to be a member of the Court of Appeals for Veterans Claims and represents Veterans in appeals throughout the 50 States

Contact us online or call (561) 613-0101 today for a free and confidential consultation!