Motion For Reconsideration Of Bva Decision

[JSM754]

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.

[Berta]

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

[Pete53]

Wow that really is something. Good Luck and the fact that they are looking at a legal error could mean big retro in my opinion.

[JSM754]

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:

[JSM754]

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

[Berta]

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.

Edited July 18, 2007 by Berta

[JSM754]

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.