Veterans Disability Benefits: What is the Rule of Prejudicial Error?By Chris Attig | Permalink
January 30th in CAVC Appeals, VA Benefits.
In any case before the Court of Appeals for Veterans Claims (CAVC), the Rule of Prejudicial Error could well come into play. What is this rule?
Congress has written the so-called “harmless error” statute (28 U.S.C. § 2111), which requires courts to review cases for errors of law, without regard to errors that do not affect a party’s substantial rights.
The idea was to make sure that Federal Appeals Courts didn’t turn into “impregnable citadels of technicality”. In reality, it just creates one more hoop that Veteran and their surviving spouses have to jump through – a showing that a Board of Veterans Appeals (BVA) error effectively altered the outcome of the case (i.e., harmed the Veteran).
Here is a scenario that shows the Rule of Prejudicial Error in effect. A surviving spouse sought survivor’s benefits when her husband (a Veteran) committed suicide. She argued that her husband’s PTSD caused his suicide, and that the VA Regional Office failed in its Duty to Assist in providing her a medical opinion to determine whether this was the case. The court agreed that the VA Regional Office erred when it did not provide a medical opinion to the surviving spouse.
However, because the Court could find no evidence that the Veteran had been diagnosed with PTSD, it concluded that the error was harmless – essentially, it concluded that no medical opinion could connect an undiagnosed condition to the Veteran’s cause of death.
My problem with the Rule of Prejudicial Error is two-fold: first, it requires a Veteran or a Veteran’s survivor to deal with more legal mumbo-jumbo in a scheme that is already overwhelmingly inaccessible. Lawyers are taught to argue, and many of us are quite good (some better than others) at developing an argument that our client’s mistake really didn’t hurt another party. Vets and their survivors are mostly pro-se, and find these arguments overwhelmingly complex to challenge.
Second, the VA Regional Office is an administration built on error or mistake. (Seriously – look “error” up in the Dictionary, and there is a picture of the VA Headquarters building right there).
When talking to Veterans, I often tell them that the best advice is to assume that the VA Regional Office made an error; chances are greater than not that they did. In fact, pick 10 random ratings decision, or 10 random Board of Veterans Appeals (BVA) decisions, and I’d bet you can find an obvious error in 80% of them. Until the VA Regional Office shows that it can properly interpret and apply the law, and treat Veterans with fairness and quickly dispatch their claims, the Rule of Prejudicial Error should be suspended in VA Regional Office claims.
This will never happen, unfortunately – so ends my rant.
How does a Veteran or surviving spouse protect themselves from an unfair (or improper) application of the Rule of Prejudicial Error?
Hire an attorney.
Hire a good one that can articulate how the Board of Veterans Appeals (BVA)‘s error changed the outcome of your VA disability or survivor benefits claim.
The Attig Law Firm represents US Veterans in their disability benefits claims to the VA. The Attig Law Firm represents Veterans nationwide before the Board of Veterans Appeals (BVA), or the Court of Appeals for Veterans Claims (CAVC).
For claims at the VA Regional Office level, the Attig Law Firm focuses its efforts on Veterans (and the Surviving Spouses of Veterans) in Texas, Arkansas, Colorado, Pennsylvania, North Carolina, and South Carolina.
If you are a Veteran (or a surviving spouse of a Veteran) and have a claim before the Board of Veterans Appeals (BVA), or the Court of Appeals for Veterans Claims (CAVC), it is very important that you consider hiring an attorney with experience handling such claims. Even if you don’t hire the Attig Law Firm – find a reputable and competent attorney to help you with your Court of Appeals for Veterans Claims (CAVC) Appeal.
No post on this website is meant to be legal advice and the posts on this website do not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the Veteran, some power. This information is not widely or easily accessible to Veterans. The information presented on this website is a general description of law and processes; each case is different, and there may be approaches listed here that are not accurate or applicable to your case. Likewise, there may be information that is applicable to your case that is not provided on this Veterans Disability Compensation Blog.
It is very important that the Attig Law Firm notes that each and every Veteran’s claim is different. Just because the Attig Law Firm was able to secure substantial past-due benefits for one Veteran or Veteran’s spouse does not mean or imply that we will be able to do so for you. In some cases, the Attig Law Firm may not be able to secure any financial compensation or past-due benefits due to the facts or law of your particular case.
It is best to consult with a lawyer familiar with VA Disability claims and benefits or a Veterans Service Organization to examine your particular case. If you would like to discuss your VA claim with a lawyer who handles VA Benefits and Disability Appeals, contact the Attig Law Firm, PLLC, for a free consultation with a VA Benefits attorney.