CAVC Case 03-0506: Back

CAVCReal U.S. Court of Appeals for Veterans Claims (CAVC) decision · October 28, 2004 · STEINBERG

This is a decision of the U.S. Court of Appeals for Veterans Claims — the federal court that reviews Board of Veterans' Appeals decisions, one level above the Board. Court decisions can vacate, reverse, or affirm what the Board did.

What would this rating pay you? (2026 rates)

Official 2026 VA monthly compensation, including the 2.8% COLA increase.

Rating Married Children

per month · per year, tax-free

Dependent add-ons start at a 30% rating. Child-only and dependent-parent rates: see the full 2026 pay chart.

2026 base rates, all ratings (veteran alone)

Rating	Monthly (2026, incl. 2.8% COLA)
10%	$180.42
20%	$356.66
30%	$552.47
40%	$795.84
50%	$1,132.90
60%	$1,435.02
70%	$1,808.45
80%	$2,102.15
90%	$2,362.30
100%	$3,938.58

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Outcome

Remanded / Vacated

Decision Date

October 28, 2004

Judge

STEINBERG

Service Era

Not specified

Conditions Claimed

Back Headache TDIU Eye Hypertension

Issues on Appeal

BackHeadacheTDIUEyeHypertension

Why It Was Decided This Way

The appellant also asserts that even if his headaches did not satisfy all criteria for a 50% rating, the Board erred by requiring total satisfaction rather than determining which rating criteria his disability picture "more nearly approximates" in 5 accordance with 38 C.

demonstrates a frequency of headaches that corresponds with the 'very frequent' criterion", the Board's determination that the benefit-of-the-doubt doctrine was not applicable was clearly erroneous.

The appellant also notes that the Secretary did not address the appellant's argument that the Board failed to apply properly 38 C.

Applicable Law and Regulation The assignment of a rating to a particular disability is a question of fact, which is reviewable in this Court under the "clearly erroneous" standard set forth in 38 U.

305, 313 (2003) (applying "clearly erroneous" standard to assess, as directed by 6 38 U.

To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.

Reversal Argument Although the appellant argues that the Board's denial of a rating higher than 30% was clearly erroneous because the severity and frequency of his headaches satisfied the requirements for a 50% rating (Br.

Accordingly, the Board erred by failing to consider and discuss that letter, especially in light of the RO's finding that the appellant's "diary is credible, is consistent with other independent evidence of record, and is therefore accepted as more accurate than the perhaps garbled history at the VA examination" (R.

Authorities Cited

Allday v. BrownAnderson v. CityCharles v. PrincipiConary v. DerwinskiCottle v. PrincipiDavenport v. BrownFaust v. WestFletcher v. DerwinskiFortuck v. PrincipiGabrielson v. BrownGilbert v. DerwinskiGonzalez v. PrincipiLovelace v. DerwinskiMariano v. PrincipiPelegrini v. PrincipiQuartuccio v. PrincipiSanden v. DerwinskiSchafrath v. DerwinskiSee Brown v. GardnerSee Butts v. BrownSee Caluza v. BrownSee Kay v. PrincipiSee Marsh v. WestSee Stegall v. WestSimmons v. PrincipiThayer v. PrincipiTrilles v. WestUnder Francisco v. BrownWeaver v. Principi

Regulations Cited (38 CFR / 38 USC)

38 CFR 3.10238 CFR 3.102 (2003)38 CFR 3.159 (2003)38 CFR 3.321(b) (2002)38 CFR 4.124a38 CFR 4.129 (1996)38 CFR 4.16(a) (2002)38 CFR 4.16(b) (2002)38 CFR 4.21 (2002)38 CFR 4.3 (2002)38 CFR 4.738 CFR 4.7 (2002)38 USC 111038 USC 510038 USC 5107(b)38 USC 7104(a)38 USC 7104(d)(1)38 USC 711238 USC 7261(a)(4)38 USC 7261(b)(1)

Denial Type

Credibility|Inadequate Exam|Rating Criteria

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