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JSM754
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Posts posted by JSM754
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I ask for a reconsideration/NOD on a DRO denial and was told they were reveiwing it. Is what you are refering to a dro denial?
Hi,
I am way past the DRO stage. I was Granted a Motion for Reconsideration of a BVA Decision,my Issue was about an Earlier Effective Date of Claim. If you want more details let me know.
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"When I called the VARO office on Friday I was told that a decision was made and I should hear something within 30 days..and I was also told that if I received a favorable outcome and was rated higher that the retro pay would not go back to the date of the original claim of 05 but by the date of the reconsideration which would be march of 07 because the decision would be based on new and material evidence (doctor statement) that was not present during the inital determination. "
That is a lot of info to get out of an 800# vet rep at the VARO-
If VA did have sufficient medical evidence of higher rating-then I feel the retro should go back to the filing date-if the rating should hacve been higher when the claim was filed.
The 800# rep could be right- then again they could be wrong-
it all depends on what I call the Watergate question-
WHat did the VA know and when did they know it-
If VA could have awarded higher rating due to evidence they had-which you have a doctor's opinion on-I feel the retro should be when the VA had this evidence that supported the higher rating.
I hope you hear something soon-
"after my doctor reviewed the C/P and the VA criteria on how they rate my disability she stronly felt I rated higher and wrote a statement of fact in support as to why I medically met the criteria set forth by the VA"
In my opinion she supported medical evidence VA already had- thus- the EED shoud be the date of the claim-
that is only my opinion and best to see what VA does and what rationale they would use as I dont see this as "new and material" as to the date of disability-
The VA usually never gives a retro date as the same date as receipt of an IMO.
The retro is based on when the clinical record showed the disability/and/or an increase in its affect to the veteran.
The 800# person might have been talking out of their
hat
Hi Berta,
As I was reading the Information that you/or whoever received from the mentally challenged Consumer Repreps at the 1-800 number is exactly one of the reasons I am where I am today. Read Carefully and check the Reg's:
**A veteran files for an Increased Evaluation dated 01 January 2004. (DATE OF CLAIM) The Veteran disagrees with every Rating Increase Denial, which at some point more likely than not puts the Issue into BVA status. As the Veteran waits for their BVA Review, they continue to request a Reconsideration at the RO Level.**
For arguement sake the Veteran is granted an Increased Evaluation Rating Decision dated 28 August 2007. It does not matter that the Veteran coninued to request a Reconsideration by the RO while waiting for a BVA Review.
**THE BOTTOM LINE IS THAT IF AN ISSUE IN PENDING APPEAL STATUS IS RESOLVED BEFORE BVA REVIEW IS TO BE GIVEN THE ORIGINAL DOC (I.E. 01 JUNE 2000)
Please get back to me
JSM754
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As some of you may know my Motion for Recon had been Granted. It went before the Expanded Review Panel on 16 July 2007. I found out today 8/28 that it has now been sent to the 3rd. Panel Review Member on 21 August. Please give me some Insight. Rapid movement may not be such a good sign, and then again????. Just give your Thoughts.
I'm currently online and will be for a while for anyone who may be awake
Thanks
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On the VA website site, it says 662 this year. I normally get mine right around Aug 28th.
Hi,
Thank-You very much for your answer.I'll gladly accept it no matter what the date.
Later
JSM754
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Hi,
Anyone out there know when the Clothing Allowance will be paid and how much. I normally get mine around the 25th-26th of August
Thanks
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OK, you wanted options and you are angry. Find a lawyer and ask the lawyer who you can sue.
Hi,
As of today I've gone beyond Angry. In calling the NYRO, I now find out that the Congressional Rep from Hell Joanne Hurley, is now in training for Rating Specialist. Just when I thought things couldn't get any worse.Although it really doesn't surprise me, because the more INCOMPETENT the DVA Employee is the Better they are able to jerk the Veteran. The NYRO said I could indeed File a Suit. Which is exactly what I think I just may do. It's easier to File against the people I feel are responsible than it is to File against than it would be to Sue the DVA as a whole. I am researching my options right now. It may not go anywhere, but if nothing else it will w/o a doubt put a spotlight on them and the NYRO. fAIR EXCHANGE AIN'T NO ROBBERY.
JSM754
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"My Motion for Reconsideration has been Granted, and as of 16 July 2007 it is now before the Expanded Reconsideration Panel. I've only won Half of the Battle, and now all I can do is await the Final Decision"
That tells you that all you can do at this point is to wait.
Did you call the BVA -as I suggested before-to ask them if you needed to send them anything else?
The docket number is not coming up at the BVA search-do you have the citation number?
I have no idea what the BVA will do -regarding all this-
I also have an open issue claim filed 4 years ago-regarding a claim filed 13 years ago by the veteran which I re-opened after his death.
The VARO upon receipt etter from me- regarding this claim-said it had been decided as part of my 1998 award under 1151.in 1998.
If that is the case, and this came stated in writing came from the VSM, I raised next issue-so where is the direct SC death award for my husband's death?
and where is the refund of all of my offset money under FTCA?
This is in addition to my AO death claim.
This appears to have prompted a Motion before the BVA in my behalf filed by the RO itself-a year ago August.
I have no idea of any status nor do I even think about it as- without a decision on that from the BVA-there is nothing I can do-
As I mentioned before BVA is user friendly-
the law clerk had this Motion and asked me what claim I had at BVA in the past that the RO filed to Motion on?
I think it was an older CUE denial I had-
there was something there that raised this open 1151 issue-
Unfortunately I do not believe the BVA can even act on the VARO motion because VARO failed to identify the BVA decision-it was filed on-
I could certainly find it but why bother- this is only more ammo for me to challenge any additional illegal or erratic decisions from this RO-
I appreciate that you dont know what the outcome of the reconsideration will be.
I sure dont know what you can expect.
You will still have full appeal rights, I believe, if you dont like the reconsideration results.
I certainly can understand your position and that the BVA obviously saw something that caused the reconsideration motion to be granted.
I dont know what they or what you should do next.
The BVA will determine that.You would still have appeal rights at the CAVC and also the BVA could even remand the claim to NYRO for further development based on their decision.
My husband, me and even my daughter as veteran have had every single claim we ever filed denied-
then they were all awarded - not to include the ones I have at RO now and after 4 1/2 years I actually expect my medical evidence will be thoroughly reviewed.
If a veterans or widow feels they are right legally on any position they take against a VA decision-they certainly should do what you did and fight it diligently throughout the appeal process.
Berta, Berta, Berta
First and foremost, I have followed all of the advice you have given me. I intend to take this all the way. With that said it should not have gorten to this point. What angers me the most is the fact that the NYRO's Congressional Liasion (Joanne Hurley) who is the last Defense for the Veteran did absolutely nothing to make a wrong right. Tell me if I cannot sue the DVA can I sue the people I feel are at fault??
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JSM:
Looks to me like you have a full grasp and are managing your case well. The main thing is at least you have 100% now and have money coming in every month. Hopefully, you will prevail and get paid back to 1991.
I lost 27 months cause of VA tricks so I know a little about what you are going thorugh. I wish you the best.
Hi Pete,
I've had money coming in since 1990, which is really not the point. I want someone held accountable, truth be known I really want someone's Job that is how angry I am. What they have done is not only wrong but was done intentionally.
JSM754
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Hi,
I know that if no one else replies "Berta" will.(Berta please review and Reply). Anyone who can advise and help please do so. My Motion for Reconsideration has been Granted, and as of 16 July 2007 it is now before the Expanded Reconsideration Panel. I've only won Half of the Battle, and now all I can do is await the Final Decision. I would be lying if I didn't admit that I am Thinking the Worse and Praying for the Best. There is no doubt in my mind that what has been done to me, has also been done to other Veteran's,I just have refused to go away. In addition to which I refuse to allow the NYRO (245 West Houston Street) to try to Cover their Butts at my or any other Veteran's Expense. If this has happened to me, at some point it will happen to you. If you want to Review the BVA's Decision the Docket Number is 00-13-664. Keep in mind that the Dispute has nothing to do with Percentages,Ratings because all had already been resolved. The Dispute amounts to nothng more than "DATE OF CLAIM" as it Pertained to my Cervical Spine Condition.
Here is the Scenario, and is probably what led to my Motion for Reconsideration to be Granted:
*The NYRO allowed my Cervical Spine Condition to remain (by their Admission) in an Open and Active Appeal Status unresolved for 13 Years. They did not Dectect and Admit their Error until they had already Granted P&T IU. Which I had not Applied for until July 2002. After they granted 3 different Effevtive Dates the last being 10 March 1998. At this point the NYRO is making IU an Issue. Realizing that there was no way in Hell I wasn't going to go away the DRO(Joe CORRETJA) and the Congressional Liasion from Hell Joanne Hurley and their knowing that the NYRO would have one Hell of a problem, so let the BVA make the Decision.
After admitting that I was indeed right and that my Cervical Spine Condition was indeed still in Open Appeal Status with an Effective Date of 1 June 1991. Trying to make this long story short this what the NYRO resorted to:
1. On 8 September 2004 they Certified my Case as Appeal Ready for BVA Review, with the Evidence of Record showing VA Form 8 signed by the DRO (Joe Corretja)
2. On 4 October 2004 the NYRO sent a SSOC (SOC dated 27 January 1995), Included was a Cover Letter that the my disagreement for an EED having an Effective Date of 1 June 1991, which I had Contended all along.
3. On 12 October 2004 the NYRO responded to my Request that they Correct their Error which they Denied, taking the position of letting the BVA make the Decision.
Just when you think it couldn't get any worse, it indeed does. Because I needed to submit a Statement to the BVA, his is when I found out the Docket Number. I knew I had a problem, and it did not come as a surprise when the BVA handed down a decision dated 14 March 2005 denying my Claim. So much for "All Evidence of Record has Been Considered. I knew some thing was not right, I just had to prove it. It just so happens that I applied for SSD and Binder&Binder needed Specific documentation from my C-File, which was and still is in Case Storage in D.C. Under the Freedom of Information Act I was sent a Copy of my Entire C-File. (1,156 Pages) The first thing I find is a VA Form 8 unsigned by the DRO (Joe Corretja) and dated 11/16/2004 that had not been Certfied for the Board. No matter how you slice it I got Screwed. The NYRO took away my Right to a Fair and Unbiased BVA Review.
I'm going all the way no matter the Cost. Help by telling me what to do??? What you are reading now is exactly what I argued in my Motion. Help Me Please!!!!!
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Other vets and widows have had Motions for Reconsideration granted.
"Whether a BVA reconsideration granted is at the BVA Chairman's discretion. The request for reconsideration must be in writing and must specify an "obvious error of fact or law". Again, you must point to evidence of the record or a specific law or regulation that you believe the BVA either ignored or misapplied. Newly discovered service medical records or previously unconsidered changes in service records by a board for the correction of military records are examples of evidence that can support a BVA reconsideration. If the Chairman grants reconsideration, the original BVA decision is nullified and a new decision will issue based on the reconsideration request. If the request is denied, it's time to go to court !."
from:"Vets First Self Help Guide" United Spinal Org.
Here is one of them- WT Sumner
The CAVC publishes the appeallants name address and phone number or ,if they had counsel, the lawyer's info instead.
Mr. Sumner's lawyer might be able to advise you or even give you Sumner's phone number-it is most probably in the Fort Worth area if it is listed.
His counsel was (for CAVC matter generated by th Motion for Reconsideration) Clayte Binion, Esq
Fort Worth Tex 1-817-927-1800
as of 1999
from:http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=fed&navby=docket&no=027019
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After the BVA denied his claim for veteran's benefits, Sumner appealed to the Veterans' Court. While his appeal was pending, Sumner submitted a motion with the BVA to reconsider his claim based on newly acquired material evidence. He also filed a motion with Veterans' Court to stay his appeal pending the BVA's decision on his motion for reconsideration. The Veterans' Court granted the stay and ordered the VA Secretary to advise the court on whether the BVA was inclined to grant the motion for reconsideration and, if so, to file a motion for a "Cerullo remand." See Cerullo v. Derwinski, 1 Vet. App. 195 (1991). After advising the appeals court that it was inclined to grant reconsideration, the BVA granted Sumner's motion for reconsideration, stayed the order pending remand from the Veterans' Court, and filed an unopposed motion for remand in accordance with the prior order. After the Veterans' Court remanded, Sumner filed an EAJA application for award of attorney fees"
If I were you I would go to CAVC site and look for any case in which a Motion for Reconsideration was granted.Obviously if the case is at CAVC the motion request did not produce the benefit sought.
Then I would go to the Docket sheet with the vets or widow's name and call them up and ask them what happened after the Motion request was granted.
Or call the lawyer they had on the brief.
The BVA is having trouble determining what past decision my RO filed this type of request on. The VARO wants the motion to CUE an older decision.
It would potentially produce a SC death award but it is not the award I want.
Believe me I do understand your position- you want to know what is what-
but if the error is based on fact or rule of law there may be nothing you need to do at this point.
I felt when I called the BVA they would have willing told me the whole circumstances of the RO Motion in my behalf-
but the VA failed to give them the decision date and I told BVA I have two old BVA decisions as well as a CAVC writ thing and I cannot determine at all which one the VA meant.Neither could the BVA determine that.
They have my older BVA dockets right there on the PC.
I know it has nothing to do with the CAVC writ I filed.
I have accessed CAVC dockets and called either the vet or the widow at the number they gave on the docket (some phone numbers do change in time) or I called their attorney of record-in a few situations -over the years-
As long as CAVC makes this info public we can call anyone there we want.
Unfortunately a vet with a CAVC decision who I have tried to reach listed no phone number and no attorney-and not even his address.
I am extremely interested in his case there.
Hi,
I spoke with the Lawyer listed. What he told me was to call him as soon as I get the Reconsideration Decision, be it Favorable or not. What he did agree with is that I am either very Luckey or I must have made one hell of an argument. The BVA very seldom Grant Motions for Reconsideration and that I have only won half of the Battle. With that said, something very strange has happened. I called the BVA status Line to find out what out what Month they were up to for Cases having 2005 Docket Number which she said was June. 0Being not quite sure of the Month of I was not quite sure what the Month of my 2005 Docket Number, I asked her to check. I had already known that my Motion went before the Judge on 16 July 2007, here's what baffles me according to the BVA's Status Line's Computer System it seems that Both Issues are being Reviewed by the Judge. I want to know if this is standard because it doesn't make any sense to me. Please help me out by giving me your thoughts.
I almost forgot, the Texas Lawyer told me that should my Review be Denied he will at that time put me in touch with who would the Best Lawyer for the Job. Because if I am Issued a Denial, and have to go before the Highest Court I am going to need the best. Question,??? what's uph that, and does that fact make it a Good or Bad thing. Let me know.
JSM754
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Sorry I am starting overHi,Thank-You for the meaning, boy do I feel Stupid
. I just want to throw this out to youasking that you give it some thought and tell me what you think:
* Here is the scenario:
Due to an extremely gross Error made by the NYRO and thrir Refusal to Correct it, because and only because they failed to find that they had allowed an Issue to remain in an Open and Active Appeal Status un resolved for close to 13 Years until after I had been granted P&T IU (By their Own Admission, they made a Mistake). When IU was granted I questioned the Effective Date of Claim. After three(3) diiferent Effective Dates the Last being 10 March 1998, and My continuing to Disagree, arguing that my Cervical Spine Condition was still in Appeal Status. Upon receiving a SSOC w/a Cover Letter dated 4 October 2004 pertained to the SOC dated 1/27/95. This the point where they Admit the the Dispute as it pertained to the Cervical Spine and only the Cervical Spine was still in Appeal Status with an Effective Date of 1June 1991.
I will fast forward, On 12 October 2004 the NYRO responded to my 6 October 2004 Disagreement with the Effective Date. Please pay Close Attention to the Dates I am giving you. The letter of explanation dated 12 October 2004 that the Issue would have to be decided by the BVA. At this point I fgured that it couldn't get any worse, so I opted for a Video Conference by the BVA. The Hearing was scheduled for 22 January 2005, having had just had Cervical Spine Surgery and believe it or bad weather I did not attend the Hearing. I immediately notified the NYRO, and was instructed to Notify the BVA Status Line, who in turn instructed me to Notify my Service Representative which I did not have because for the past 14 Years I had been Representing myself. (I did pretty good by the way. I was told that I could submit a Statement to the Board.
Hold on it just gets better from here ;) . I was absolutely livid when I was given the Docket Number 00-13-664. I knew immediately that I had a big problem. I contacted the the worse Congressional Liasion in all of the DVA (I had been throgh Four (4) of them).
The BVA's Decision dated 14 March denying an EED came as no surprise. So much for ALL EVIDENCE OF RECORD HAD BEEN REVIEWED. I knew that I had been Screwed with no Grease. From the date of the of the BVA's Decision handed down on 14 March 2005 until I filed (On My own Behalf) a Motion for Reconsideration dated January 2007, I knew I had to find out what went wrong. Because I would have rathered go to Hell and walk with the Devil, before I would allow the NYRO to cover their Asses at my expense.
Now we get to the good part. I applied for SSD and was denied. I then Hire Binder & Binder for Help. They needed my Medical Records, Award Letters etc etc. My C-File was locked in Case Storage pending Appeal Decision. In my attempt to get only what Binder&Binder actually needed, I find out that I was entitled to one Free copy of my Entire C-File under the Freedom of Information Act, which totaled 1,156 pages. As I am placing the File into Binders I found what I needed.
Here is what I would like for you to think about what I discovered:
1. In my C-File thre was Two (2) VA Form 8 (Certification of Appeal). One was signed and dated 8 September 2004, (00-13-664). The other one was placed in my C-File with a date of 11/16/2004 and unsigned, and not Certified to the BVA's.
2. The SSOC&Cover Letter dated 4 October 2004 and the Letter of Explanation dated 12 October 2004 and having a 1995 Docket Number was never submitted to the Board.
This is my thinking, there was absolutely no way in Hell I would get a Favorable BVA Decision here's why the NYRO had Certified my Case as Appeal Ready on 8 September 2004. When the information mentioned in item #2 was mailed to me that would have given me a Effective Date of 1 June 1991 was never Certified to the Board. I pondered my options for quite a while and took a Chance by filing a Motion for Reconsideration which was Granted. Just tell me your thoughts, now that this matter is now before the Expanded Reconsideration Panel, believe me no one is more shocked than I am. All I keep hearing is that Granting a Motion doesn't happen often
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Hi, I first have to ask you what the Heck does "BTW" mean.????
JSM754,
I think that it means:
By the Way.
Good Luck with you Reconsideration!
Josephine
Hi,
Thank-You for the meaning, boy do I feel Stupid
. I just want to throw this out to youasking that you give it some thought and tell me what you think:
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The VA WANTS us to panic Veteran- and then get in to a state of mind that makes it impossible for us to even deal with our claims rationally-
I used to get into a state of frustration myself-
Dont waste your energy on panic---
Go to the left and click on court case, then click on decisions , then put Reconsideration into the search feature-
I will try to find something there later today for you if I can- I am preparing for a battle-
there might be some crap hitting the fan today at my POA's office-regarding the negligent way they have handled my claims-
We are both NY claimant- I am at Buffalo- both these ROs are in a state of "panic"
in my opinion because vets are getting tired of the lousy way they handle our claims-
Calm down and try to access the CAVC- I will too for you if time allows today-
I DO UNDErstand how you feel- been there many times-
and then I took action BTW-who is representing you on this?
Hi,
I first have to ask you what the Heck does "BTW" mean.???? Please explain. As it turns out, my Issue went before the Expanded Panel on 16 July. I can only hope and wait. But, here is something for you to consider and to tell me what you think:
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This might get you there faster:
http://search.vetapp.gov/search/
put Reconsideration into the search- 1719 claims will pop up-
90-89 Breslow might help show the way these things can go-
BVA granted Breslows Motion for Reconsideration, July 23,1990
then denied basis of the recon request.
A stay proceeding put this in limbo for a short time then BVA filed a Motion to dismiss the claim.
The vet had filed the NOA-Notice of appeal to CVA-
(COVA sa as CAVC now a days)
COVA overruled the BVA's motion to dismiss and meantime the BVA granted the vet 30% SC.
Dont know if all that will help you-
you must be prepared to find that the Reconsideration might bring a denial to you-
you will have full appeal rights at the CAVC.
But you must file the NOA there fast- the CAVC web site will tell you all you need to know as to how to do that-
Ask for a fee waiver-I think that form is there-years ago COVA didnt have a form but they almost always waiver the filing fees.
You will hear from lawyers if you put you name, address and phone number on the docket- as I might have mentioned _ I heard from 10 or 12 or maybe more-
This matter rests solely on what is in the file now-
You could succeed to get your benefits via the BVA reconsideration process-meaning this baby could fly!
But no one can predict what the BVA is doing about that.
And no one here can really comment on your chances as we would have to study the whole shibang-
The BVA will do that.They are doing it now I think.
Any vet with a BVA case might well review the CAVC web site in the event they need to file there.
It never hurts to be amply prepared for the next warfare maneuver in the paper battlefield of V
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Other vets and widows have had Motions for Reconsideration granted.
"Whether a BVA reconsideration granted is at the BVA Chairman's discretion. The request for reconsideration must be in writing and must specify an "obvious error of fact or law". Again, you must point to evidence of the record or a specific law or regulation that you believe the BVA either ignored or misapplied. Newly discovered service medical records or previously unconsidered changes in service records by a board for the correction of military records are examples of evidence that can support a BVA reconsideration. If the Chairman grants reconsideration, the original BVA decision is nullified and a new decision will issue based on the reconsideration request. If the request is denied, it's time to go to court !."
from:"Vets First Self Help Guide" United Spinal Org.
Here is one of them- WT Sumner
The CAVC publishes the appeallants name address and phone number or ,if they had counsel, the lawyer's info instead.
Mr. Sumner's lawyer might be able to advise you or even give you Sumner's phone number-it is most probably in the Fort Worth area if it is listed.
His counsel was (for CAVC matter generated by th Motion for Reconsideration) Clayte Binion, Esq
Fort Worth Tex 1-817-927-1800
as of 1999
from:http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=fed&navby=docket&no=027019
"
After the BVA denied his claim for veteran's benefits, Sumner appealed to the Veterans' Court. While his appeal was pending, Sumner submitted a motion with the BVA to reconsider his claim based on newly acquired material evidence. He also filed a motion with Veterans' Court to stay his appeal pending the BVA's decision on his motion for reconsideration. The Veterans' Court granted the stay and ordered the VA Secretary to advise the court on whether the BVA was inclined to grant the motion for reconsideration and, if so, to file a motion for a "Cerullo remand." See Cerullo v. Derwinski, 1 Vet. App. 195 (1991). After advising the appeals court that it was inclined to grant reconsideration, the BVA granted Sumner's motion for reconsideration, stayed the order pending remand from the Veterans' Court, and filed an unopposed motion for remand in accordance with the prior order. After the Veterans' Court remanded, Sumner filed an EAJA application for award of attorney fees"
If I were you I would go to CAVC site and look for any case in which a Motion for Reconsideration was granted.Obviously if the case is at CAVC the motion request did not produce the benefit sought.
Then I would go to the Docket sheet with the vets or widow's name and call them up and ask them what happened after the Motion request was granted.
Or call the lawyer they had on the brief.
The BVA is having trouble determining what past decision my RO filed this type of request on. The VARO wants the motion to CUE an older decision.
It would potentially produce a SC death award but it is not the award I want.
Believe me I do understand your position- you want to know what is what-
but if the error is based on fact or rule of law there may be nothing you need to do at this point.
I felt when I called the BVA they would have willing told me the whole circumstances of the RO Motion in my behalf-
but the VA failed to give them the decision date and I told BVA I have two old BVA decisions as well as a CAVC writ thing and I cannot determine at all which one the VA meant.Neither could the BVA determine that.
They have my older BVA dockets right there on the PC.
I know it has nothing to do with the CAVC writ I filed.
I have accessed CAVC dockets and called either the vet or the widow at the number they gave on the docket (some phone numbers do change in time) or I called their attorney of record-in a few situations -over the years-
As long as CAVC makes this info public we can call anyone there we want.
Unfortunately a vet with a CAVC decision who I have tried to reach listed no phone number and no attorney-and not even his address.
I am extremely interested in his case there.
Hi,
Berta, I am in a state of Full Blown Panic. For the past three days I have poured over more than 1100 Pages of my claims file. The more I read the madder I get. It has gotten to the point that I truly want someone's job at the NYRO and I don't care who's job it is. But without a doubt I will start with the Congressional Representative Joanne Hurlie. I have over the years gone through at least 5 Congressional Reps, and she is by far the worst. Be that as it may, I was reading your Post and as soon as I send this to you I am going to attempt to access the CAVC site. It would help if I knew exactly what that was, but I am gtoing to give it a shot.
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My question is related to my claim that is in appeal status. I received a call from NSO (who BTW is not local and local chapter usually can't answer questions for me because they "don't know") informing me that my C-file is with the "Appeals Officer." NSO went on to suggest that this is good because "we" are right where we should be at this point. Stated "Appeals Officer" will review the file and has the authority to decide the claim, if I have a case, without the need for a hearing. I've been waiting to be assigned to the list for a travel board hearing. Did not make the list this year but was informed I should be on it for next January 08.
So, my question is: how often does an Appeals Officer or DRO, if the terminology is interchangeable, decide a claim in favor of the veteran without the need for a BVA hearing?
I've searched the hadit.com website in order to avoid a new thread on an old topic. But I was unsuccessful in finding anything that specifically addressed my question. So, if this is a repeat question, in advance, please forgive me. Thanks for your assistance.
I had a FLASHBACK while reading your question. If you reply please explain what the Heck does "BTW" mean. At any rate, I find it hard to believe that you are waiting on the Traveling Board, has no one told you about Video Conferencing? The Board is in Washingon and you are where you are. Your NSO never told you about this Option.??? Be that as it may,the Appeals Team/DRO, are indeed one in the same. Take a Fool's Advice, if you are not Satisfied with the Decision of the DRO, continue with your Issue on Appeal.
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Good Luck
Don't be surprised if you get a remand. If its remanded and the VARO makes the final decision it is like they never messed up in first place.
I am hoping that you are still online, so that you can respond right away.Truth be told I had hoped for a Remand when this Matter was before the BVA in 2005. Please explain, rather help me to understand. If I get a Remand,I more than likely will get Favorable Relief which I should have gotten anyway. But just by this Issue possibly being Remanded it gets the NYRO off the hook from having to justify a 13 Year Error. It makes sense to me. If you are still there please respond. :D
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:D
Hi,
This is from JSM754.Earlier I found out that my Motion for Reconsideration that had been Granted went before the Expanded Panel for Review on 16 July 2007, with me having no chance to submit any further argument. This may or may not be a Good Thing. I can only hope that whatever Error the Reviewer found causing my Motion to be Granted will be upheld by the Expanded Panel.
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I replied before to you-
call the BVA- and ask them what's next-I posted many numbers- I have about 17 desk phone numbers there-
BVA is very use friendly
Hi,
Make no mistake i followed-up on what you gave me.The Decision itself nor the BVA system states what Error was found that caused my Motion to be Granted. The one thing I do know for a fact is that it was not a Rating/Percentage Issue, because that was not my arguement. I only argued two points in my Motion:
1. The NYRO certified Docket Number 00-13-664 to the BVA in September 2004, as ready for BVA Review
2. They then put into the Evidence of Record a VA Form 38 (CERTIFICATION OF APPEAL) dated 4 November 2004 unsigned by the DRO and never submitted to the BVA.
In addition to which the BVA own Records would show that Docket Number 95-30-377 was not closed as Advanced Allowed in the Field until 10 October 1998. So no matter how you slice it the Second Appeal was taken when the first one was still open. That's the reason it took me two years to file the Motion, I knew something was not right, I just had to find it. So the bottom line is whether or not to file a further argument, or is the fact that I made a good enough argument to get my Motion Granted enough.????
Hope to hear from you soon
JSM754
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I replied before to you-
call the BVA- and ask them what's next-I posted many numbers- I have about 17 desk phone numbers there-
BVA is very use friendly
Hi Berta
I did exactly as you suggested, what Error they found is not given. It is not stated in the Decision nor is in the BVA system as to what the Error is. The best explanation I could get was they definitely overlooked something. The one thing I do know is that it is not a Rating/Percentage Issue for those had long been resolved. When I filed my Motion, I only argued two things:
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JSM754,
You're correct, the VA is out to screw you! There's no question about it! Hell, the New York RO is even out to get you since they, and not the BVA, were the ones that awarded the IU retroactive back to 1998!
I wish you the best of luck with your issues with VA.
Vike 17
Thanks now that you fully understand the issue, I still would like an Opinion as to whether I should submit further argument, or is just thye fact that my Motion was Granted should be enough.??? (Sometimes less is more) I've been told, just because my Motion was Granted when it goes before the full Reconsideration Board it can at that point still be denied. Just so you know I feel at this point I have nothing to lose. Which doesn't mean I've closed my mind to any and all advice I am given. Another thing has happened since our last contact. The Motion was granted on 31 May, yet I did not receieve Official Notification until I received the letter dated 22 June 2007, am I correct in assuming my 60 Days does not expire until August.??? Hope to hear from you soon.
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Hi,
The Reconsideration Board granted my Motion for Reconsideration. I am either lucky or I made one Hell of an Argument. Because from I have been reading this does not happen very often. I have until Monday to answer as to whether or not I have anything more to say. I have gotten this far, but what concerns me is the fact that the Reconsideration Review Panel found some kind of Error of Fact or Law. Their ruling does not state what Error of Fact or Law they found. Please someone help me determine exactly how to go forward.
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Sorry it has taken so long to get back to you. The Board's Decision dated 14 March 2005, denying an Earlier Effective Date as it pertained to the Cervical Spine Condition,was nothing more to me than temp setback. As soon as found out that the issue before the BVA for review, I knew I had a problem. I knew for a fact that the NYRO had screwed me, and there was absolutely no way I would get a Favorable Decision. You may be missing the point, I was issued Docket Number 95-30-377 in September 1995, and was closed as Advanced Allowed in the Field 21 October 1998, no matter how you slice it, 10 March 1998 was taken as a Second Appeal in Error because the first Appeal was still open. In addition had it not been for the Social Security Administration needing Medical Records from Claims Folder which was and still in Washington this is when I found an unsigned Certification of Appeal, dated 11/24/2004, that was never filed with the Board. So much for All Evidence of Record has been considered. This is no longer about any percentages those issues had long been resolved, it's about and only about the Date I Filed for an increased rating. The Cervical Spine Condition was still in Appeal Status at the time it was upgraded from 20% to 30% and made the Effective Date 5 October 2000, the Date of a Personal Hearing where in Error they took the Cervical Spine Condition as a reopened Claim. The more I disputed the Effective the worse things got. Once I was granted P&T IU I was given three different Effective Dates the last one being 10 March 1998. Once they realized that my Cervical Spine Condition was still in an Active and Open Appeal Status they made IU an issue which I could not understand because I never argued about an earlier Effective Date for IU.What I didn't know at the time, is that they couldn't grant the 60% back to June 1991 it all would have to be moved as a whole, 13 Years at 100%. It now has become Cover Up time at my expense. So this is the reason I am where I am today. I knew I had been screwed, but I just had to prove it.
I'm not sure you received my reply. There seemed to have been a problem when I tried to reply to you. I have until Monday 16 July 2007 to present further argument.(With Overnight Mail) There is no doubt that this has not happened to only me. What angers me the most and should anger every Disabled Veteran, is the fact of errors being made at the Veteran's Expense. The VA screws up and I and you are left to pay the price. I mean no disrespect to you, but you read the Board's Decision and decided I was the one confused just as they had. The Issue that was Certified as Appeal Ready for Review by the NYRO, there was no way in Hell I would be granted favorable relief. As far as "All Evidence of Record," has been considered if thatwere true the NYRO would have caught their Error 13 Years ago. Make no mistake I intend to go all the way.
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JSM754,
http://www.va.gov/vetapp05/files2/0507182.txt
After reading the BVA decision, it looks like you are confusing the issue of being reduced from 40% to 20% in one evalution. The VA decided to do this because it was mor beneficial to you as a whole (rating wise) to rate you under multiple disabilities which affected different bodily etiologies rather than one seperate rating. The BVA decsion stated;
"In a rating decision of November 1996, the RO discontinued
the previous 40 percent evaluation under Diagnostic Code 5293
for the postoperative residuals of spondylolysis of the
cervical spine with radiculitis to award a more favorable
combined evaluation by separating the symptoms, effective in
June 1991. In place of the single evaluation, the RO granted
a combined 50 percent evaluation for the veteran's cervical
spine disorder and its various related disabilities, which
consisted of a 20 percent evaluation for the postoperative
residuals of spondylolysis of the cervical spine with
limitation of motion; a 20 percent evaluation for radiculitis
of the left lower extremity; and a 20 percent evaluation for
radiculitis of the left upper extremity"
Also the 20% rating was increased to 30% in a rating decision from your RO in 2002 with an effective date of Oct. 5. 2002. Then two years later your RO conceded the effective was March, 1998, in another rating decision.
Futhermore, this wrangling over the 20% to 30% to an eventual 40% actually is a moot point because your RO granted 100% due to IU retro back to March of 1998 also. I don't see any way finacially this appeal could be of any benefit. There isn't the possibility of an SMC according to your medical records such as LOU and your 40% was initially reduced to 20% so the VA could assign a more favorable overall evalution which ultimately resulted in more monthly disability pay. I would also venture to guess that this more favorable combined rating probably enabled the VA to consider IU which wouldn't have been possible under the sole 40% evaluation. The only way this could benefit you is if the VA determined that you should have been receiving a 40% instead of the 20% and 30% combined with the two 20% prior to March 1998. Based on whatthe BVA stated in their decision;
"The Board notes that the 30 percent evaluation now in effect
for the veteran's service-connected residuals of
spondylolysis of the cervical spine was based primarily on
the results of a VA examination in May 2002. The effective
date established for that evaluation was March 10, 1998,
considered the date of receipt of the veteran's claim for
increase. Based on a review of the entire record, there is
no evidence that, for the period prior to March 10, 1998, the
veteran was suffering from orthopedic symptomatology
associated with her cervical spine sufficient to warrant the
assignment of an evaluation in excess of the 20 percent then
in effect. Accordingly, the veteran's claim must be denied.
In reaching the conclusions above the Board has considered
the applicability of the benefit of the doubt doctrine.
However, as the preponderance of the evidence is against the
veteran's claim, that doctrine is not applicable in the
instant appeal. See 38 U.S.C.A. § 5107( B) ; Gilbert v.
Derwinski, 1 Vet. App. 49, 55-57 (1991)."
... your Motion to reconsider was probably based on additional evidence that the BVA was unaware of and they want to take another look see.
Vike 17
Sorry it has taken so long to get back to you. The Board's Decision dated 14 March 2005, denying an Earlier Effective Date as it pertained to the Cervical Spine Condition,was nothing more to me than temp setback. As soon as found out that the issue before the BVA for review, I knew I had a problem. I knew for a fact that the NYRO had screwed me, and there was absolutely no way I would get a Favorable Decision. You may be missing the point, I was issued Docket Number 95-30-377 in September 1995, and was closed as Advanced Allowed in the Field 21 October 1998, no matter how you slice it, 10 March 1998 was taken as a Second Appeal in Error because the first Appeal was still open. In addition had it not been for the Social Security Administration needing Medical Records from Claims Folder which was and still in Washington this is when I found an unsigned Certification of Appeal, dated 11/24/2004, that was never filed with the Board. So much for All Evidence of Record has been considered. This is no longer about any percentages those issues had long been resolved, it's about and only about the Date I Filed for an increased rating. The Cervical Spine Condition was still in Appeal Status at the time it was upgraded from 20% to 30% and made the Effective Date 5 October 2000, the Date of a Personal Hearing where in Error they took the Cervical Spine Condition as a reopened Claim. The more I disputed the Effective the worse things got. Once I was granted P&T IU I was given three different Effective Dates the last one being 10 March 1998. Once they realized that my Cervical Spine Condition was still in an Active and Open Appeal Status they made IU an issue which I could not understand because I never argued about an earlier Effective Date for IU.What I didn't know at the time, is that they couldn't grant the 60% back to June 1991 it all would have to be moved as a whole, 13 Years at 100%. It now has become Cover Up time at my expense. So this is the reason I am where I am today. I knew I had been screwed, but I just had to prove it.
. I just want to throw this out to you
Motion For Reconsideration Granted
in VA Disability Claims Research
Posted
Hi,
I've been gone for a while,and I'm still waiting for Decision from the BVA Reconsideration Panel.Some of you may already know that in May 2007 the BVA granted my Motion for Reconsideration that denied me an earlier date of claim.Here's the latest:
1.It went to the Expanded Panel for Review on 16July2007.
2.On 21August2007 it was forwarded to a Judge.
Which is where it is now. I was told that because I already had another Issue awaiting a BVA Decision I suspect I'm going to get two screwings for the price of one. If anyone has been in the same position please weigh in.
Thanks