Bva Decision, A Precedent - Yes Or No

[ken1939]

I filed a form 9 for a BVA hearing. I am claiming headaches secondary to SC cervical DDD and also for lower extremity pain secondary to SC Lumbar DDD. My headache diagnosis is tension headaches and contraction headaches SC at 0 %. I am appealing the rating and find many favorable BVA decisions where the diagnosis is not migraine and nearly duplicate my situation The ratings are as much as 30%. My lower extremity diagnosis is radiculopathy, denied because radiculopathy is a symptom not a condition. I have found literally hundreds of BVA decisions where the diagnosis is radiculopathy and not one was denied or remanded because of the diagnosis of radiculopathy. I have read somewhere in a forum that BVA decisions cannot set a precedent. But if there are many, many of these decisions, will this be enough to prove my claim?

[broncovet]

I agree with Berta. "To Vetrep or not to Vetrep" that is the question. I think if you dont know the answer to that question, then you probably need a Vetrep (VSO). Of course, people like Berta do not need a Vetrep, and I am not really sure whether she has one or not. If she does, I am sure she keeps him squared away.

When you do a search of CAVC decisions, I think you can seperate the "precedential" or "non precedential" CAVC decisions based on whether they are "single judge" (non precedential) or "full panel" (precedential). As already said, BVA decisions are non precedential, and Federal court decisions/supreme court decisions are precedential. The dividing line of precedential/non precedential seems to be divied up at the CAVC.

[Philip Rogers]

On the question of using BVA decisions in your appeals - remember you are dealing w/adjudicators. Most would be willing to award the benefit if you can show them how. I used BVA cases in my appeals, quoting info that was identical to my claim. What needs to be done is for you to show the adjudicator how to come to the correct conclusion. The VA says you can't use non-precedential cases but I believe you can. They just may not hold up on appeal, to the CAVC, but for the average adjudicator, it points them in the right direction. jmo

pr

[carlie]

Ditto on pr.

[ken1939]

Thanks all.

I have to do a lot of research based on the info you provided. I'll check back after I think it through.

I do have a vetrep. DAV represents me, but not very well. I honestly don't mean any disrespect to DAV, maybe their workload is overwhelming. When I had my BVA hearing in Washington (Dec 2007) I had to ask the DAV to please just get out of my way. I believe they simply thought I had no chance of proving a nexus back to 1961. I insisted at the hearing that I present my own case which I did and I won. In 2008, at the suggestion from DAV, I filed for secondary conditions. It seemed like a good idea but, again, I found the DAV to be a hindrance rather than a help. I was denied because I did a poor job of developing my claim. Answers to the questions I am asking in this forum should have been provided by DAV without being asked. They have never said: This is how you should proceed, this is the evidence you will need and this is how you present it.

[deanbrt]

I used the DAV. they are a joke, Everything I got was on my own....

Thanks all.

I have to do a lot of research based on the info you provided. I'll check back after I think it through.

I do have a vetrep. DAV represents me, but not very well. I honestly don't mean any disrespect to DAV, maybe their workload is overwhelming. When I had my BVA hearing in Washington (Dec 2007) I had to ask the DAV to please just get out of my way. I believe they simply thought I had no chance of proving a nexus back to 1961. I insisted at the hearing that I present my own case which I did and I won. In 2008, at the suggestion from DAV, I filed for secondary conditions. It seemed like a good idea but, again, I found the DAV to be a hindrance rather than a help. I was denied because I did a poor job of developing my claim. Answers to the questions I am asking in this forum should have been provided by DAV without being asked. They have never said: This is how you should proceed, this is the evidence you will need and this is how you present it.

[john999]

That is the problem with most VSO's is that they don't lay out a plan for a vet to get the highest benefit. They just deal with what you give them. When I was awarded 70% the DAV discouraged me from appealing the denial of TDIU. I don't understand that except they wanted a clean win. I stopped using them after that. If you do a good job of laying out the evidence and pointing the RO in the right direction you can win. I got a really good IMO and the VA liked it so much they just incorporated it into the decision word for word. They did not question one premise of the IMO because it looked good. You want to present a good argument backed up by strong evidence.