Veterans Law Judge no longer works for VA and my appeal

[Treymon]

I entered a claim in April of 2009 for secondary service connection, claim to my lower back. As a result of my appeal, I got a letter stating that the Original Veterans Law Judge is no longer with the VA and that according to USC 7107(c); 38 CFR, 20.707 my case has been reassigned to a new Veterans Law Judge. They say that they have a transcript of the original hearing and can make a decision based on this transcript. I asked my Vets Advocate, VFW, to assist me in this matter. The original hearing was looking for service connection in my service record. There was only one entry in my Service sick call record that was  accordingly un-readable. My claim was refused. I've had the lower back fusion after 8 knee surgeries (service connected) and my neurosurgeons said that my back was condition was due to my compensatory gait from my knee surgeries. My question is: The original hearing was for service connection from my back and not secondary service connected from my knee. I've been unable to find the shipmate who saw me carry the 250 lb. radar motor up the mast for replacement and then went to sick call for my back injury. The VBA is asking me to choose as to whether I want them to go ahead and make a decision based on transcript, (which is for service connection and not secondary service connection) or if I should request another hearing or teleconference video. The VBA states that this will take a whole lot longer to wait. My Vet Advo, the VFW stated, that they could not find out what was in the transcript because the VBA would not give them a copy of the transcript. All they said was that appeal was not for secondarily connected service issues and that the only way to get the transcript was to  file an entirely new claim? I'm confused. Any advice out there would be appreciated. (The VFW doe snot know what evidence I have submitted for this claim.) Thanks

[Gastone]

You should address this question to AskNod!

Semper Fi

[Berta]

" my neurosurgeons said that my back was condition was due to my compensatory gait from my knee surgeries"--if they have put that in writing,in your medical records  or better yet ,if you can get an IMO that makes a full medical statement and rationale as to the nexus from the SC knees to your back, you can succeed on a secondary claim.

Unfortunately, the back claim, as I understand what you said, lacked proof of the inservice nexus..

Do you have a copy of all of your medical records? I would think that there might well be the nexus statement the Neurosurgeon made in the records. I do agree that you might have to file a new claim

because this open claim was for direct service connection and not secondary service connection.

 

[Berta]

I always re-read these posts because sometimes I see something else-----

In April 2009 you DID file a secondary claim..is that correct?(for the back)

But it appears the back fusion was done after you filed this claim?

"The VBA is asking me to choose as to whether I want them to go ahead and make a decision based on transcript, (which is for service connection and not secondary service connection) or if I should request another hearing or teleconference video."

I would ask for another hearing or telephone video conference" to have the VA re-characterize what you are claiming.

"The VBA states that this will take a whole lot longer to wait."

If they deny the claim pending, that will still mean a long wait anyhow.

"Vet Advo, the VFW stated, that they could not find out what was in the transcript because the VBA would not give them a copy of the transcript. "

I would try to contact the BVA ombudsman if I were you. 

And also send the VA an IRIS inquiry ( I would do it as a complaint) the complaint area is in a drop down box.

Their email addy used to be bvaombudsman.va.gov

 "if they keep they said was that appeal was not for secondarily connected service issues and that the only way to get the transcript was to  file an entirely new claim? I'm confused. Any advice out there would be appreciated. (The VFW doe snot know what evidence I have submitted for this claim.) Thanks"

Does the BVA know what evidence you have submitted since it was transferred to the BVA?

I assume they gave you a C & P exam for this but was that exam done prior to the back surgery?

Do you have copies of any C & Ps they did for the back or knees?

"they said was that appeal was not for secondarily connected service issues and that the only way to get the transcript was to  file an entirely new claim?"

 

But you DID file for  I entered a claim in April of 2009 for secondary service connection, claim to my lower back !!!!!

Something is sure wrong here...Do you have a copy of exactly what you filed for in 2009?

 

Others will chime in as well.......

 

 

 Like this

•  
• Quote

[Berta]

Did the VARO make the award for your service connected knees?

Prior to your filing for the 2009 claim?

Can you scan and attach here  the last decision you received from your VARO? 

an you also scan and attach a copy of their VCAA letter ( aka 5103 waiver) telling you what evidence you needed?

(Cover the C file # , name [prior to scanning it.)

" I got a letter stating that the Original Veterans Law Judge is no longer with the VA and that according to USC 7107(c); 38 CFR, 20.707 my case has been reassigned to a new Veterans Law Judge."

I will check that citation in 38 CFR but, if they assigned a new law judge, why would they want to accept an older transcrip fron a former BVA judge, that seems to be based on an inaccurate assessment of what the 2009 was for?

 

sorry for so many replies....the VA can confound and confuse and I know others here will be willing to try to straighten this all out.

I am concerned about the evidence you said the VFW has not seen.

VAROs do not care about evidence submissions they get AFTER a formal transfer to the BVA occurs. I was sure the VARO had shredded some of my evidence so I sent copies of the main submissions I had made, after the BVA transfer ( because than I had a docket # they could associate my evidence with)  directly to the BVA. The VA didn't shred it however, the BVA fopund all of the evidence hey ignored, when they adjudicated and award my claim. ( DMII contributing to death of husband -USMC Vietnam AO).

Where did you send this evidence?

 

Edited June 30, 2017 by Berta

[Buck52]

Not sure what to do if a Judge steps down from the BVA  or retires from it?  but I would think they need to finish adjudicating  a claim?

but to get his transscripts  he can use the 

38 CFR 20.714 - Rule 714. Record of hearing.

[Berta]

I checked out the regulation they used and then I went to the BVA to get some clarification:

"The Veteran testified at a March 2010 travel Board hearing before the Board.  While the matter was pending, the Veterans Law Judge (VLJ) who conducted the hearing retired.  Generally, the law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal.  38 U.S.C.A. § 7107(c); 38 C.F.R. § 20.707.  Because the VLJ who conducted the hearing has since retired, he cannot participate in the adjudication of the Veteran's claim.  As such, in December 2015, the Board sent the Veteran a letter requesting that he indicate whether he desired another opportunity to testify at a hearing before the Board before a new VLJ, or if he wanted the Board to proceed with the adjudication of his appeal.  The Veteran did not respond to this correspondence.  Therefore, the Board will proceed with addressing the appeal.  The Board also notes that the Veteran requested a hearing before a Decision Review Officer at the RO, but he withdrew this request in September 2009."

https://www.va.gov/vetapp16/files1/1606195.txt

It would be most beneficial to you to request this additional hearing or tele -conference.

I am going to assume that the past VLJ 's transcript will not award the claim.I assume ,because of your post here, that they were not interpreting the actual 2009 claim correctly.

In  a few other cases I read at the BVA, whereby the original VLJ retired or left VA for other reasons, those claimants who did not request the additional hearings ,were denied.

For all we know this VLJ you had might have thought he was on the Supreme court , meaning he might have been 87 years old and had problems with interpreting the work he was assigned.

I dont mean to sound like I am discriminating against the elderly- but we had a C & P doc here in NY ,in his late 80s, many years ago, who screwed up a lot of C & P exams.

If you cannot get a rationale response from IRIS ( hit the Contact us button at the main VA web site (www.va/gov) I suggest you call

1-855-848-2311

The White House VA complaint hot line.

Tell them it is a claims issue and someone will help you.

They will contact you within 14 days after you make that call.

Others will opine here too but it seems to me that they are ignoring the actual 2009 claim that was based on a back condition as secondary to your service connected knee condition....and trying to say it was a direct SC back claim.

 

 

 

 

 

 

Edited June 30, 2017 by Berta