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VA General Counsel Precedent Opinions |
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PREC 11-97 Application of Amended Rating Schedule Provisions in Pending Claims involving Ratings for Mental Disorders
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PREC 11-97 Application of Amended Rating Schedule Provisions in Pending Claims involving Ratings for Mental Disorders Citation: Vet. Aff. Op. Gen Couns. Prec. 11-97, VAOPGCPREC 11-97, 1997 QUESTIONS PRESENTED: a. Do any of the amendments to the Department of Veterans Affairs (VA) Schedule for Rating Disabilities pertaining to ratings for mental disorders, which became effective November 7, 1996, contain liberalizing criteria? b. Must the Board of Veterans’ Appeals (Board) remand claims involving ratings for mental disorders which were pending on November 7, 1996, to permit the agency of original jurisdiction (AOJ) to consider the effect of the amended regulations in the first instance?
HELD: a. Questions as to whether any of the recent amendments to VA’s rating schedule pertaining to mental disorders are more beneficial to claimants than the previously-existing provisions must be resolved in individual cases where those questions are presented. The determination as to whether a particular amended regulation is more favorable to a claimant than the previously-existing regulation may depend upon the facts of the particular case. b. Where a regulation is amended during the pendency of an appeal to the Board of Veterans’ Appeals (Board), the Board must first determine whether the amended regulation is more favorable to the claimant than the prior regulation, and, if it is, the Board must apply the more favorable provision. Under VAOPGCPREC 16-92 (O.G.C. Prec. 16-92) and Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993), the Board may consider regulations not considered by the agency of original jurisdiction if the claimant will not be prejudiced by the Board’s action in applying those regulations in the first instance. With respect to claims pending on November 7, 1996, which involve ratings for mental disorders, the Board may determine whether the amended regulations, which became effective on that date, are more favorable to the claimant and may apply the more favorable regulation, unless the claimant will be prejudiced by the Board’s actions in addressing those questions in the first instance. The Board is free to adopt a rule requiring notice to a claimant when a pertinent change in a statute or regulation occurs prior to a final Board decision on a claim and permitting the claimant to waive the opportunity for a remand to the agency of original jurisdiction for initial consideration of the new statute or regulation. |
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