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rakkwarrior
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Posts posted by rakkwarrior
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I am truly sorry to hear all of the negative experiences people have had with DAV. I know most DAV staff spend a considerable amount of their time dedicated to their mission, however, this does not mean that people who are upset with the service provided do not have merit, quite the opposite, most issues are quite often related to miscommunication or lack of communication. I would always advise a person represented by any organization who feels as though their experience was lacking to speak to a supervisor. I appreciate seeing these comments in such a transparent manner, it helps to assess where we can improve.
I have provided an extensive discussion of Precedent Decisions of the CAVC and the higher Courts and their application upon BVA decisions.
Please feel free to review and ask any questions, this information is intended to assist those so inclined in understanding the relevance of Court precedent and how it is applies to claims.
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Attached is a copy of the We Don't Love You letter the VA sent me.
Can any of you suggest to me a "Why" they discounted my doctor's exam and opinion?
I am so totally frustraited right now - I really thought I had my ducks all lined up. They seemed to have really messed up what my intentions here were. The headaches are seperate from the vertigo, yet both secondary to the DDD. I few minutes of research will give all the probibility that they can be related to DDD. Eating Tums and pressing send:
Opps - had to break into three files due to size.round 3 results - redacted old word doc 1 of 3.docround 3 results - redacted old word doc 2 of 3.docround 3 results - redacted old word doc 3 of 3.doc
"The examiner reported that your radiculopathy to the left shoulder is noy caused by or a result of..." However you did have narrowing at the C3-C4 neural foramen. I would request an opinion as to whter or not there is definate impingement, and if so, if this consistent with your current complaints of radiculopathy. Again for the issue regarding the dizziness, the examiner opined it was due to other etiology, and there are reported differential causes for the disorder insomuch as there was a prior report of labrynthitis "resolved".
A rebuttal medical opinion from you doctor, specifically where HE notes his prior reports was not included in the "Evidence" Section will suffice. The request reconsideration of the decision using the FDC method via VA form 21-526EZ. Hopefully they will get the point they don't get a free pass for a sloppy rating. A reminder, the medical opinion has to complete, and professionally/medically refute the VA examiner's findings.
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In preparing a case to be submitted to the Board of Veterans' Appeals (BVA or Board), one must consider the application and discussion of standing Court precedents. Specifically, pursuant to Title 38 U.S.C. §7104© "The Board shall be bound in its decisions by the regulations of the Department, instructions of the Secretary, and the precedent opinions of the chief legal officer of the Department."
The Board's mission, as set forth in 38 U.S.C. § 7101(a), is "to conduct hearings and consider and dispose of appeals properly before the Board in a timely manner." The Board's goal is to issue quality decisions in compliance with the requirements of the law, including the precedential decisions of the United States Court of Appeals for Veterans Claims (CAVC) and other federal courts.
Some links have been provided by Hadit regarding VA Fast Letters (FL's) and Training Letters (TL's), however, I did not notice an index of Decision Assessment Documents (DAD's) and other internal circulars which describe how the VA Regional Office's adjudicators may apply Court Precedent. The Board, however, is comprised of Veterans Law Judges and Staff Attorneys who are not necessarily bound to the confines of such legal guidance. However, they may use the quasi-legal material to inform their decision.
The the United States Court of Appeals for Veterans Claims (CAVC) is an Article I Court codified under Chapter 72, Title 38 U.S.C. to decide all relevant questions of law, interpret constitutional, statutory, and regulatory provisions, and determine the meaning or applicability of the terms of an action of the Secretary; hold unlawful and set aside decisions, findings which are found to be: (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C ) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or( D) without observance of procedure required by law, pursuant to Title 38 U.S.C. § 7261.
This Federal Circuit Court has limited jurisdiction in reviewing the decisions of the CAVC. Their authority is limited to deciding all relevant questions of law, including matters of statutory interpretation. See 38 U.S.C. § 7292(d)(1). We can set aside a regulation or interpretation of a regulation relied upon by the CAVC that we find to be "(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, privilege, or immunity; © in excess of statutory jurisdiction, authority, or limitation, or in violation of a statutory right; or (D) without observance of procedure required by law." Id. In general, however, this court may not review factual determinations or the application of a specific set of facts to a law or regulation. See 38 U.S.C. § 7292(d)(2); Anglin v. West, 203 F.3d 1343, 1345 (Fed.Cir.2000).
The Federal Circuit Court also has authority to review decisions of the Veterans Court regarding the "validity of any statute or regulation or any interpretation thereof" and to "interpret constitutional and statutory provisions, to the extent presented and necessary to a decision." 38 U.S.C. § 7292©; see Flores v. Nicholson, 476 F.3d 1379, 1381 (Fed. Cir. 2007). [They] review the interpretation of statutory provisions without deference. Stanley v. Principi, 283 F.3d 1350, 1354 (Fed. Cir. 2002); Howard v. Gober, 220 F.3d 1341, 2007-7306 4 1343 (Fed. Cir. 2000). "In cases where the material facts are not in dispute and the adoption of a particular legal standard would dictate the outcome of a veteran's claim, we treat the application of law to undisputed fact as a question of law." Conley v. Peake, 543 F.3d 1301, 1304 (Fed. Cir. 2008); see Groves v. Peake, 524 F.3d 1306, 1310 (Fed. Cir. 2008).
In regard to the aforementioned, BVA decisions may not be cited as precedent setting in any instance, and incorporation of specific BVA decisions in individual claims often detracts from the probative value of the claim, namely because the BVA ruled on specific findings of fact to that veteran's case, and while the legal precepts which provided the reasons and basis for the Board's decision offer significant insight into the application of the law, it does not alleviate those citations to have specific bearing on your case.
In a recent February 2009 hearing before the U.S. Senate Committee on Veterans' Affairs Richard Cohen of the NATIONAL ORGANIZATION OF VETERANS' ADVOCATES properly assessed, "In the vast majority of cases, a BVA staff attorney is the first person to review a veteran's claim with even a basic understanding of relevant CAVC case law and its potential application to that claim. RO adjudicators are almost completely untrained in and unaware of CAVC jurisprudence, and the low quality of their decisions reflects this ignorance." I cannot agree more, in most cases, however as noted before, VA Regional Office adjudicators are guided by internal guidance or DAD's.
A precedent decision is a court decision that is cited as an example or analogy to resolve similar questions of law in later cases. Precedent decisions are made by en banc (full bench), or a panel of three or more judges. It is the similarity of the Court's precedent to the individuals case which will compel the Board's persuation on the issue at hand. This means that the legal rules applied to a prior case with facts similar to those of the case now before a court should be applied to resolve the legal dispute.
As a National Service Officer (NSO) of the Disabled American Veterans (DAV), I am accredited to practice VA law as an attorney-in-fact up to the Board of Veterans' Appeals, and currently we are the only organization to have a non-attorney practitioner allowed to practice before the Court. NSO's are internally trained in VA law, we do not require yearly cerification by VA's ridiculous and often inadequate testing, or seek outside assistance from other sources. This is achieved through a 16 month OJT program, and a three year Structured and Continuing Training program which covers not only regulation, and U.S. Code, but also precedent decisions of the CAVC, Federal Circuit, and as it pertains to VA law, Supreme Court Decisions such as that found in Shinseki v. Sanders (2009). The latter training is ongoing and continuous throughout an NSO's career. We use this independent knowledge and precepts of law to prepare briefs in lieu of VA form 646's and supplemental appellate briefs pending before the Board.
Here are some references in assisting the readers in locating Court Precedent:
U.S. CAVC:
http://www.uscourts....ns/Opinions.cfm
The U.S. Court of the Federal Circuit;
http://www.cafc.usco...vc/all/p/p.html
The U.S. Supreme Court: (search "Court of Veterans Appeals")
http://www.supremeco...ket/docket.aspx
It is the Court's review and discussion of relevant case law which will guide successful argument before higher appellate bodies, although I have been known to write briefs to the VARO, I usually constrict these to the confines of the internal Manual provisions, FL's, TL's, and DAD's. I had learned that aggressive posturing only confused the VARO and compelled furtherance of certain cases to BVA.
One thing a claimant must understand is that not all issues will be won at the Regional Office level, some claims are too complxes, or are outside their legal authority to grant. In these cases it is better to prepare for VLJ review than to continue the case going in circles at the VARO, with redundant Statements and Supplemental Statements of the Case (SOC/SSOC's). It is wise to understand when the case can reasonably granted at the RO level, and when it cannot.
*Other VSO's have training programs that I am not completely privy to, but most include training from the NVLSP, NOVA or other attorney groups. I do not disparage other VSO's but do routinely analyze whether or not their methods and prosecution has been effective. I also do not intimate that all DAV NSO's which members of this forum may have encountered are always and infallibly right, or that they correctly demonstrated the organizational values, and mission to the veterans' community. For a bit of candidness, I will tell you it is difficult to recruit for an NSO position, and because we are all disabled, some do not make it, or cannot achieve the level of concentration to maintain the pace at which we are required to initiate, develop, and prosecute claims. I can only say the majority of our staff are dedicated to the mission, and most definitely supervisors want to know if there issues with a staff member.*
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Let me see the actual decision, but I suspect that the VA did not have the xrays of the lumber spine, and the medical opinion as you noted should have supported the claim. If yuo have a copy of the C&P's I'll review them as well, and then see what needs to be done.
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In a perfect world, the VA would infer a claim for TDIU if the evidence of record suggests evidence of unemployable, i.e. a medical opinion relating the conditions which are SC'd as being so severe that they render the claimant unemployable. If not they are in error. (See Fenderson v. West (1999), and Rice v. Shinseki (2009))
The VA will in most cases re-evaluate all conditions, even if recently evaluated if a claim for TDIU is now claimed without a current medical opinion and properly filed VA form 21-8940 of record. Did your VSO ask you to start working on the VAF 21-8940 and additionally advise you to obtain 4192's from your prior employers to expedite the claim?
You may want to clarify the intentions of your representative, and if needed seek a second opinion before consulting an attorney. If the VSO is developing your claim, and is working diligently, then try to appreciate the tremendous workload these men and women bear. I have often seen cases where the veteran appointed an attorney after the VSO did the majority of the work in reviewing the claim and often arguing for the 70% evaluation, and was working to develop the claim for TDIU. I think a good VSO, should always tell their clients what we are doing and what the end goal is. You don't have to understand the law involved to appreciate the strategy.
This is best I can tell you without more precise info. This is giving your rep the benefit of the doubt that he or she knows what they are doing and why. There is internal guidance in VA Training Letter 10-07 which states:
"VA examinations are generally undertaken in conjunction with original disability
compensation claims and claims for increase in accordance with VA’s statutory duty to
assist a Veteran in developing his/her claim. See 38 U.S.C. § 5103A(d); 38 C.F.R. §
3.159©(4).
In such claims, if a request for a TDIU evaluation is expressly raised by the
Veteran or reasonably raised by the evidence of record, a general medical examination is to
be scheduled. Specialty examinations (Eye, Audio, Mental, Traumatic Brain Injury, and
Dental) may also need to be scheduled. These specialty examinations are only to be
ordered when the Veteran is service connected for an eye, audio, mental, or dental
condition that is not already at the schedular maximum, even if this condition is not one
that the Veteran is claiming as causing his or her unemployability. Additionally, the
examiner should be requested to provide an opinion as to whether or not the Veteran’s
service-connected disability(ies) render him or her unable to secure and maintain
substantially gainful employment, to include describing the disabilities’ functional
impairment and how that impairment impacts on physical and sedentary employment."
If no medical opinion is of record, a solid one may be needed addressing the SC'd conditions to ensure the Rating Board is provided with more than one assessment as to "unemployability". The Gen Med examination will not exclude those disabilities found which are not service connected, and this in-and-of itself presents a potential problem to a favorable outcome. As far as the phone calls, I know most full-time, working (emphasis added) VSO's carry a high demand. I stress to my counterparts how, no matter how many man-hours you spend on a case, not returning phone calls will kill any faith, trust, or gratitude your client may have had in you and/or the Organization.
In the end you need to evaluate the communication and relationship you have with your advocate, and whether or not your needs are being met, and if they can be met, however, if I understand properly, he was trying to do the right thing.
Hope this helps.
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I am considering filing a CUE claim to increase my original TMJ rating percentage from 10% to 20%. I am asking for public feedback and advice. If this looks promising, I am considering whether or not to involve a lawyer. Thank you in advance for responding!
Below, I refer to a very interesting BVA case from earlier this year, my C&P dental exam and radiology, and my award letter.
The Veteran in the BVA case
Problem: Knee
Rating Schedule: Musculoskeletal System (http://www.benefits....ART4/S4_71a.DOC)
ROM: 120 degrees (0% rating)
ROM where pain begins: 30 degrees (20% rating = Flexion limited to 30 degrees)
The Veteran had full ROM, but was awarded based on where painful motion began.
Me
Problem: TMJ
Rating schedule: Dental and Oral Conditions (http://www.benefits....ART4/S4_150.DOC)
ROM: 42 mm (0% rating)
ROM where pain begins: 29 mm (20% rating = 20-29mm ROM)
1994 - Army extracted all third molars and dislocated my jaw
1995 - Left the service and filed a claim
1997 - C&P exam and arthrogram which showed anterior dislocation of right TMJ
2000 - Awarded 10% effective 1995, but 'minimum rating' granted when ROM is not rateable, instead of rating at 29 mm where painful motion begins.
2010 - Awarded TMJ increase to 20% and ratings secondary to it (migraines, GERD due to meds, etc...)
Title 38 C.F.R. §4.150-Schedule for Rating Dental conditions-DC9905 Temporomandibular articulation, limited motion of:
Inter-incisal range:
0 to 10 mm.......................................................................................................... 40
11 to 20 mm ....................................................................................................... 30
21 to 30 mm........................................................................................................ 20
31 to 40 mm........................................................................................................ 10
Range of lateral excursion:
0 to 4 mm............................................................................................................ 10
Note: Ratings for limited inter-incisal movement shall not be combined with
ratings for limited lateral excursion.
The Rating Criteria hasn't been revised or amended since the Federal Registry notice at 59 FR 2530, Jan. 18, 1994. This means the criteria can be applied longitudinally across your period of evaluation. However, the painful motion criteria generally applies to TMJ has not yet been studied for application of Deluca Criteria where, "limitation of motion is determined after consideration of functional loss due to flare-ups, fatigability, incoordination, weakness, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995); 38 C.F.R. §§ 4.40, 4.45.
Title 38 C.F.R. §4.40 states, "Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like."
Title 38 C.F.R. §4.45 primarily discusses the joints and describes the criterion upon which consideration will be given. Interestingly the VA Examination Worksheet does not specifically provide for Deluca Criteria. http://www.vba.va.gov/bln/21/Benefits/exams/disexm12.pdf
It would be an interesting Case to argue before the BVA or CAVC.
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It seems that though you may need a medial opinion relating all of the various reports into a consistent disability picture.
"It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history."(38 C.F.R. 4.1) Whereas, 38 C.F.R. 4.2 states, "Different examiners, at different times, will not describe the same disability in the same language. Features of the disability which must have persisted unchanged may be overlooked or a change for the better or worse may not be accurately appreciated or described. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present." However, the responsibility of the Rating Specialist is not to opine as to medical levels of severity on their own if confronted with a competent opinion as to medical opinions from competent medical professionals."
Probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, physician’s knowledge and skill in analyzing data, and medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet.App. 467 (1993). Equally, the [VBA] is :is prohibited from asserting its own unsubstantiated medical opinion, and thus when the [board,VARO] doubts weight or credibility of medical evidence offered by the veteran, the BVA should cite or seek advisory opinion or recognize medical treatises in its decision that clearly support its ultimate conclusion. Guerrieri v. Brown, 4 Vet.App. 467 (1993). In the worst case scenario the VA could seek a secondary advisory opinion regarding the medical evidence but if properly done, this would only conclude the same results.
The cited precedent does not only serve for service connection but also claims for increased ratings, if the examiners knows the exact criteria for the "staged" evaluations under 38 C.F.R. Part 4 for your specific disorder under it's relevant DC code. Medical opinions as to severity are powerful, specifically when they encompass a period of years based on contemporaneous review of the record. The Court held in Massey v. Brown, "Consideration of factors which are wholly outside of the rating criteria provided by regulations for rating of disorders is error as a matter of law; thus, when adjudicating or rating cases, the agency cannot use a standard which exceeds that found in the regulation." Massey v. Brown, 7 Vet.App. 204 (1994).
How would we do this, if it were a PTSD evaluation rated at 30, which we feel more closely approximates a 50%, we would request a for a physicians review of the medical records citing:
- Whether or not the severity and current level of functioning the veteran experiences due to his PTSD results in reduced reliability and productivity due to such symptoms as:
- flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.
[*]Whether or not the aforementioned cluster of signs and symptoms were evident by a review of all pertinent clinical records from November 2008 through the present.
Kindly provide your medical opinion as to whether our client symptoms met the current level of severity, over the time period indicated above. Please substantiate or reconcile your medical opinion with medical reasoning based on a review of all available records to include service medical and personnel records where appropriate.
This would help build the case and refute the thoroughness and purposeful review of the decision maker, especially under judicial review from a VLJ. Eqally, this is a much easier method to prosecute than alleging an CUE. Essentially, you would have to Rate the decision for them, and prove it was not a difference of opinion but a legal error on their part, CUE's are only usually won with disorders which are not subjective to rate, like a orthopedic issue, or a Hearing Loss eval.
- Whether or not the severity and current level of functioning the veteran experiences due to his PTSD results in reduced reliability and productivity due to such symptoms as:
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Yeah but I haven't learned how to edit in these forums yet. :-) Good catch
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Thank you everyone for their warm welcome. I have already added some posting which I hope will enhance the content of this forum. Some info regarding CUE's discussion of continuous prosecution of claims, and medical opinion templates. I am giving you my authored work here, anything not of my original content will be properly cited, given it's another's idea. I am not here to write college papers though so cut me some slack on lack of APA or MLA formatting.
Seriously, though, there are some very knowledgable people here who have obviously began this from the base of their own knowledge and diligence. I am not here to "be the expert" and shove anyone aside. Just the opposite, legal practice, and the concept of applied law requires discussion on not only the basics of service connection, application of Fast Letters and the M=21 guidelines (which i think are a joke..but sometimes useful)., but also how to best navigate the VA's system to the benefit of those who have to navigate the labyrinthine process.
I really thank all of you for your hard work, and those who come here have much to value.
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Earlier this month, I was talking with my RO (1-800 number). They told me that several letters were sent out, but they were unable to tell me the purpose of any letter. I received one a week later, but it was unimportant. I have not received any other letters. I am concerned that they might be related to my NOD/DRO and a couple of pending claims.
Any letters/envelopes I receive from my RO are always 'bulk rate postage paid' and are not postmarked, so I cannot tell when they were shipped. Important letters always say 'respond within x days'. Because they keep copies in my c-file, they automatically assume I received the letter. If it is something date sensitive, it could turn into a big problem.
Any recommendations?
Thanks
Conduct an IRIS inquiry to the VA and keep a copy of the confirmation and "ticket" number", the VA does argue the "Presumption of Regularity" involving mail sent to home addresses which is serviced by the U.S.P.S., however, if you retain a record of your contact to the VARO via the IRIS system that you have not recieved said documentation, they would have to consider in rebuttal that your inquiry as "clear evidence to the contrary". Another method would be obtain signed statements (notarized) from your Postal Delivery man/women asserting that they only delivered X envelope from VA on X date. In the future have all VA communications go to a registered P.O. Box.
There is a "presumption of regularity" under which it is presumed that government officials have properly discharged their official duties. Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307 (1992) See Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (VA need only mail notice to the last address of record for the presumption to attach). This presumption of regularity in the administrative process may be rebutted by "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307, 310 (1999).
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If you seek the assistance of a VSO, you need to ask them the following questions:
What is the legal framework I need to be aware of, and that you will apply in order to win my case?
What do I need to do, and what will you do?
Will you provide a written plan of action, and what are our options of the claim is denied?
If a VSO can answer the first question, the next two should be housekeeping to ensure all parties are on the same page.
If a VSO cannot answer the first question, you need to look elsewhere.
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Many individuals, agents, attorneys, and VSO's will withdraw representation because the claimant is not being cooperative in their efforts to prosecute the appeal, or in some rare cases the claimant withheld facts material to the case which made the claim unethical, inherently incredible, or otherwise in conflict of interest. In other cases, I have found a claimant who is pending a BVA hearing and his representative is sick, cannot show up, and we take representation to assist the veteran. The latter is on a cases by case basis. The regulation, and Rule of Practice governing representation is found below, and must be filed as a motion as noted.
DAV does not withdraw representation but in rare cases, however others will withdraw if you file an appeal/NOD without them knowing, or otherwise exclude them from the claims process in which they are otherwise obligated to be involved in.
Title 38 C.F.R. § 20.608(2) Procedures. After the agency of original jurisdiction has certified an appeal to the Board of Veterans' Appeals, a representative may not withdraw services as representative in the appeal unless good cause is shown on motion. Good cause for such purposes is the extended illness or incapacitation of an agent admitted to practice before the Department of Veterans Affairs, an attorney-at-law, or other individual representative; failure of the appellant to cooperate with proper preparation and presentation of the appeal; or other factors which make the continuation of representation impossible, impractical, or unethical. Such motions must be in writing and must include the name of the veteran, the name of the claimant or appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf), the applicable Department of Veterans Affairs file number, and the reason why withdrawal should be permitted, and a signed statement certifying that a copy of the motion was sent by first-class mail, postage prepaid, to the appellant, setting forth the address to which the copy was mailed. Such motions should not contain information which would violate privileged communications or which would otherwise be unethical to reveal. Such motions must be filed at the following address: Office of the Senior Deputy Vice Chairman (012), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. The appellant may file a response to the motion with the Board at the same address not later than 30 days following receipt of the copy of the motion and must include a signed statement certifying that a copy of the response was sent by first-class mail, postage prepaid, to the representative, setting forth the address to which the copy was mailed.
(Authority: 38 U.S.C. 5901–5904, 7105(a))
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If development is complete and the case is in Ratings then no it shouldn't be long, the effective date should reflect the date of the original claim, in most cases, otherwise the date the evidence supports the claim. (Ref 38 C.F.R. 3.400, 3.400(o)(2), and (q))
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Once a claim is reopened within the appellate period, the claim is considered to have been continuously prosecuted. This means there will be no expiration of the prior claim for failure to respond or file an NOD, because in essence, you have and the request is governed by 3.156b, and 3.160.
In my VARO appeals take 2 years for De Novo or Traditional Review, the latter of which is merely a review if the prior decision and is IMHO useless. Reopened claims take 6-9 months currently.
We coomunicate with our VA counterparts to gain an understanding of current workflow, and actively work to streamline our clients claims to be "Ready to Rate". We also use the FDC claim process to expedite new claims and claims for reconsideration with additional evidence.
***FDC claims will not work for issues which have become final and require N&ME to be considered formally reopened, this is due to VCAA notification requirements.***
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I understand veterans' frustrations towards VSO's. I once felt the same frustration, and still cringe at the lack if knowledge or commitment some of my counterparts possess.
I can say that as in any business endeavor if you discuss and map a plan of action, provide written assessments and recommendations, and provide assistance via written requests for medical opinions ect. it lessens the uncertainty of the person you are assisting.
This is the practice my staff adheres to, however we also hold our clients to working with us and through us, and in the long-term to understand that we can most effectively those who are willing to see this as a combined effort.
The VARO's vary greatly in the competence level of their staff, and this includes attention to detail, responsiveness to VSO's congressional inquiries, and even adherence to STAR reviews and VACO guidance and directives.
These instances of ineptitude require a concerted effort if those affected and representative organizations to bring deficiencies to the VAIOG's attention.
I don't take personal the frustration felt by veterans towards VSO's because much of it is valid to some degree, and in my experience most of our clientele come in upset but walk away satisfied with the discussion and ultimate outcome.
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I am a 7 year veteran of the U.S. Army. I served in the Infantry, with the 101st Airborne Division and the 1st Infantry Division. I conducted two deployments to Eastern Europe and a third 14 month deployment in Iraq (OIF II) from '04 through '05. I have been a student of IWU's Bachelor of Science in Management APS program since 2006; in 2007 I took a hiatus for other professional career requirements, and am now looking forward to completing my bachelor
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Often veterans become upset with a VA Rating Decision, see the appellate rights and opt for filing a Notice of Disagreement (NOD). This will typically invoke a long and arduous appeals process. Appeals within the VA system often last 2-6 years, not including BVA remands.
A much easier way to continiously prosecute claims is by filing for reconsideration/readjudication of a prior VA decision. Typically, claimants have one year from the date of notification of a VA decision to either file an appeal or request reconsideration of the prior decision with new and material evidence. This is evidence which has not previously been considered and may serve to overturn prior decisions.
If new and material evidence is received within the appellate period for any decision which has not become final the provisions of 38 C.F.R. 3.400(q) would be for application whereas the Court held, "VA must consider any new and material evidence received during the one-year appeal period following an RO decision as having been filed in connection with the claim which was pending at the beginning of the appeal period." See also Rice v. Shinseki, 22 Vet.App. 477 (2009).
Generally claimant's are unaware of the evidence required for a favorable decision, however, a proper VA Rating Decision (VARD) should provide adequate reasons and basis for the denial of any condition. Within a VARD there should be discussion of evidence considered in the service medical records, the evidence submitted, and findings of any VA examination to include rationale of the examiner as to why or why not a nexus opinion is given in regard to service connection.
Equally, the most common reason for a denial is not for lack of in-service treatment, or evidence of a current disability, but the medical opinion relating that condition to service.
Generally service connection requires (1) evidence of an in-service, injury, disease, or event, whic was caused, incurred or aggravated in the line of duty, (2) a current chronic or disabling condition, and (3) a competent medical opinion relating the two to service.
Of the claimant can overcome a VA medical opinion with a competent medical opinion, which is as equally thorough or greater in probative value than that of a VA examiner, then the claim should be reconsidered and granted. This can be accomplished by asking for reconsideration of the prior decision, and effective dates should be assigned accordingly. This technique can win cases in a much faster fashion than electing to file an appeal, which in the send will requires the same type of evidence for a claimant to prevail.
Bva Decision, A Precedent - Yes Or No
in Appealing Your Veterans Compensation Disability Claims NOD, DRO, BVA, USCAVC
Posted
We generally review BVA decisions on cases we argued and compare the decision/grant with the Representative's Legal Brief. In many cases, we can contrast and see the similarities. It is really interesting to see how similar they are in substance and comparison.
If the many grants I've received, I've seen in a few cases where the Staff Attorney saw my brief as a challenge but instead of a denial it was a greater dicussion for the grant. I take parts of those too and ad them for my repertoire. This process of advocacy is a never ending period of learning, analyzing, and application. I really do thank everyone for their comments and discussion.
Maybe I'll provide Court cases from time to time for review and discussion. I really liked Sanders v. Shinseki, Comer v. Peake, Rice v. Shinseki, and Clemmons v. Shinseki of course.
Also closely look at Fenderson v. West for increased applications, and Norris v. West for TDIU claims to be inferred. The latter I bet your RO could get slammed for several CUE's on. i.E. failure to infer a TDIU claim for the schedularly entitled is fairly common place.