The Court of Appeals for Veterans Claims (CAVC) decision in Murphy v. Shinseki, 26 Vet.App. 510 (2014), gives veterans and VA claimants legal precedent to respond to the Department of Veterans Affairs (VA) when VA mischaracterizes their claimed issues on appeal. In Murphy, veteran filed an appeal on VA’s denial for an increased rating for his sinusitis as greater than 10 percent disabling. During the appeal process, his case was remanded by the Board of Veterans’ Appeals (BVA) for a medical examination. The Appeals Management Center (AMC) determined the symptoms of his sinusitis were more consistent with a 30 percent rating, issued a supplemental statement of the case (SSOC) and veteran began receiving increased compensation payments as a result of the AMC decision.
The case was then sent back up to the BVA for further review. BVA mischaracterized the issue on appeal as entitlement to an increase in a 10 percent rating for sinusitis. When AMC granted 30 percent for sinusitis and began paying compensation for veteran’s claim, the baseline of the claim had changed from 10 percent to 30 percent and BVA was instead deciding the issue of entitlement to an increase in a 30 percent rating for sinusitis. Once AMC made a determination veteran’s sinusitis was 30 percent disabling and began providing him with compensation, any decision for a reduction in compensation would have had to be preceded by proper due process or veteran’s opportunity to present additional evidence in support of his 30 percent rating. BVA failed to do this. Therefore, BVA’s decision not only failed to properly characterize the issue on appeal according to law; it also failed to provide veteran with due process.
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