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.

[JSM754]

Hi,

Thank-You for the meaning, boy do I feel Stupid . I just want to throw this out to you

asking that you give it some thought and tell me what you think:

Sorry I am starting over

* 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

[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,

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