Bva Denial..can I Just File A Request For Reconsideration

[emptyshell]

This may be a lame question but if you have a BVA denial...can you just file a request for reconsideration back to the BVA instead of going through the CVAC

The BVA denied my request for an increase on my L2-L3 fractures in Nov 2010. This issue was on remand and vacated several times throughout 1996-2008. BVA always vacated and remanded the issue back to RO stating they should afford me a Neurologist and a Orthopedic specialist to do the C&P exams. RO has never done this!! RO would send me back for a C&P exam with a general Physician. I was sure that when the BVA saw that RO still denied me what theyBVA) requested, they would remand it back to the RO...but this time they just denied me. BVA clearly are going against their own remand order.

While it was in BVA hands, we wrote a formal statement to my case requesting that BVA remand the issue back to RO for not following the BVA remand again.

BVA basically stated that RO had performed enough exams for them to make their decision of denial. This decision was based on a ARNP's statements.

The ARNP never read my medical history. ARNP stated that I had no surgery as of June 2008. I had just gone through surgery March of 2008 for Prostate Surgery. ARNP stated I performed actions I couldn't physcally have done. The number ONE issue for BVA's denial is that the ARNP stated I layed on a bed and raised my legs to a 90 degree angle. She stated I had no incontinence or erectile disfunction( had prostate surgery 2 months prior to this 2nd C&P Exam)

I had previously had a C&P exam for my lumbar issue 6 days prior to prostate surgery. This was done by a General Physician at the hospital. I feel the RO didn't like what he had to say so they sent me back to this ARNP who is notorious in weakening vets cases in an increase. Found out some vets were going to try and take out a class action lawsuit against this ARNP. I do not know what came of that...more and likely nothing.....

I wonder by proving I had Prostate surgery and showing ARNP made false statements as well as bringing up the fact BVA stated in their own decision to afford me a Neurologist and Orthopedic Specialist to carry out the C&P exam.

Previous examiners have stated that a Neurologist is the only one who can make a determinination on my soft tissue damage. But RO always denies these examiners. I just think it is a "No brainer" and wonder if I really need CAVC assistance....what would you do????

[jbasser]

Take your records and all medical information on your back and get the following IMO from either a Neurosurgeon, A Neuro Radiologist.

It will cost you some money but this is what it takes to win complex claims.

Once you get it done ask the BVA to consider the evidence as you are now on a very large hampster wheel.

You may stillhave to go to court and most likely the court will also remand it back.

Do you have an attorney. If I were you I would call Bergman and Moore.

J

[emptyshell]

I do not have an attorney at this time....wife and I have been working on my claim ourselves. This issue goes back to 1996.

I am going to call my primary care doctor at the VA hospital and ask her at my appt. if she will set me up with an Radiologist. I do not have a non VA general physician but if she will not allow me that...I will go and get one.An IMO is more and likely the right way to go.I will have to go and seek out a non VA general Physician first. Then have them request a Neurologist to get Medicare to cover part of it.

Thanks for your info J.

I will give the attorneys a call and see what they can do at this point and time. I do have proof that the ARNP falsfied my C&P exam. Also have proof that I sent out a DENOVO to RO when I received their statement of the case. I disagreed with their statement due to still not affording me a Neurologist and Orthopedic Specialist as well as using that ARNP who falsefied my C&P exam. This is interesting. I did not get the statement of the case in a timely manner. I have acknowledgement from their own AFC stating there was confusion on their part to getting it out to me on a timely manner which caused my DENOVO to go past the 30 days. But I have the name of the guy down there who states they messed up in getting it out to me in time. Statement of the case is dated October 8 2008. I received it November 14th, 2008 and did not get my DENOVO out till December 5th 2008. VA should allow me those 30 days since they were the ones that messed that up. I added this info to BVA

when RO sent it down to BVA for a decision but they never even addressed that. Wonder if they even read it.

If I file a request for reconsideration directly to BVA within these 120 days....will they allow a recent IMO substantiating my back issue and evidence that RO basically falsified my C&P exam. I would like them to overturn their decision and give me a higher rating. But wonder if all this will just send it back for a remand to the the RO. I just hate the fact that could happen....like you know..they will just sit on it for another 2-3 years before they will even act upon it. I personally feel they sat on my statement of the case and mailed it out late so I did not get it in time. They just burns me!!!!

[Berta]

http://www.bva.va.gov/docs/Pamphlets/010202A.pdf

Oh page 17 of the Appeals Pamphlet it says a Motion for Reconsideration at the BVA must be filed with a CUE basis.

I strongly suggest that you obtain an attorney with experience in practicing before the CAVC such as the firm John suggested.

Unless you feel you could prove BVA made a clear and unmistakable error in their denial- it would be best to file with the CAVC and have a lawyer representing you.

A lawyer could possibly get you a joint remand -allowing an IMO to come into the record.

I was asked by a CAVC lawyer to help with a difficult CAVC case he had.There was a BVA error that I hinged on but the case had,in my opinion, no merit at all (long story)

and the lawyer saw this error as well as me and he got a joint remand for the vet from the CAVC allowing more evidence to then come in.

But the veteran had already had years to supply the VA with evidence so I dont think he had anything he could continue to support the remanded claim with.

His case was different then yours as it did not require an IMO.

The IMO criteria is here in our IMO forum.

I too suggest getting one but that will depend on whether a lawyer can get you a joint remand from the CAVC.

The lawyer will want to read over carefully any VCAA letter you got and all of the SOCs/SSOCs.

As the BVA Appeals pamphlet says, you could re-open the claim with new and material evidence at the RO level ( using the IMO) but that will, of course, give you EED of the re-opened claim and not the past claim filing date.

[Berta]

Just to add- if a formal Motion for Reconsideration is filed with the BVA under claim of CUE in the BVA decision, this can usually stave off the 120 day CAVC filing deadline.

However I don't recommend filing this type of Motion unless you are 100% sure the BVA committed a legal error detrimental to your claim.

The CAVC web site contains information for non represented parties as well as those who have lawyers on their POA.

Lawyers are quite familiar with the CAVC Rules of Practice so they save a novice CAVCer from reading and attempting to decifer lots of CAVC legalize.

http://www.uscourts.cavc.gov/

Edited January 6, 2011 by Berta

[emptyshell]

Thanks Berta for all your information...My wife and I discussed it and just decided to break down and let the Attorney handle it. Just getting so overwelming with so much legal mumbo jumbo.

I called Bergmann and Moore and am sending them my BVA decision and starting ball rolling.

I think at this point and time I need professionals..I will let you know how this all comes out...

[Chuck75]

Was the same ARNP used for multiple C&Ps covering the same conditions? (That's actually a technical no no!)

Do you have any medical evidence that shows the ARNP was in error? or failed to consider existing evidence?

Do you have IMOs from board certified (in the appropriate specialties) doctors? (It sounds like you might need them.)

It will likely take an expert to judge if you have cause for CUE.