Constructive Possession

[Berta]

On Saturday AMs- as time allows-I continue to search my POA's cases at the BVA (in case I have to make formal complaint to the GC regardng their high remand situation due to VCAA violations-I already have an extensive list)

In three very recent cases I found this AM- where the vet had the same POA I have- the BVA actually had to do a remand of a past remand! I didnt search for more yet-double remands- this is unconscionable-

In one case the BVA on May 8, 2007 ,stated that they had vacated their past decision of Dec 27,2006 because they became aware of "additional evidence not in the claims file-but in the Board's constructive possession, when the board issued that decision. So it was based on an incomplete record."

http://www.va.gov/vetapp07/files2/0712321.txt

The evidence not in the c file but in their Constructive possession is this:

"REMAND

The most recent supplemental statement of the case (SSOC) was

issued on September 13, 2006. On November 28, 2006, relevant

evidence was added to the veteran's claims file for

consideration in his appeal, consisting of lay statements

from his wife and a fellow soldier. So as is evident, these

lay statements were not in his claims file when the RO last

considered his claims, and, as also mentioned, he did not

waive his right to have this additional evidence initially

considered by the RO. His representative made note of this

when submitting this additional evidence. So to avoid

potentially prejudicing him, the RO (AMC) must consider this

additional evidence prior to the Board. See 38 C.F.R. §§

19.31, 20.800, 20.1304 (2006); Bernard v. Brown, 4 Vet. App.

384 (1993)."

"His representative made note of this

when submitting this additional evidence" perhaps this is why the evidence did not get there within the 60 day SOC response time frame-I say submit it yourself and never depend on a vet rep to do it.

in any event-

the veteran-by not waiving his right for RO consideration ended up with this remand- as the BVA could not consider the evidence-the RO still has Jurisdiction over it-

What is intersting to me- here- and it often pays to ask for copies of these POA records- is that

the POA of record-on the case- NYSDVA-

I can prove-

only sends in 21-4138 with evidence when they want to-

They never sent any in on any of my claims for years-

This is a critical reason-unknown to me at the time- that the RO did not consider ANY of my evidence as it appeared the POA offered no formal support for my claims.

A 21-4138 calls attention to the claim and the evidence that is attached to it.

In the above case the veteran- like me and many others with this state POA- never got a legal VCAA notice.

The POA knew this and even if the specific vet rep handling the claim didnt know it- the POA at a higher level in the RO- (they have 4 senior VSRs there)

never checked at that point either before the claim went to the BVA- as MANY of this POAs claim do.

To only be remanded due to the VCAA violation.

Constructive Possession means that the VA has the evidence somewhere but it is not in the claims file.

A CAVC case I read -regarding the veteran raising the issue of constructive possession.

BUT the veteran was talking about private records that the VA had not obtained.

Thus the VA had no constructive possession at all.

Evidence is only what the VA has-not what they are unaware of or have not obtained.

The long point I am making is simply this:

1. If you respond to a SOC with additional evidence-make sure you send it to the RO yourself-

and within the 60 days (there is a proposed rule to change that to 30 and I mentioned this months ago-here-

The public comment time is over-and I sure griped about it in the Fed Register public comment section)

hope others did too-

2.Check your POA file from time to time to make sure they are giving you full support under their Missions statement- to include sending 21-4138s in support of your claim and additional evidence.

And make sure your NoDs are in their POA file on you as well as at the RO.

NEVER depend on a vet rep to send a NOD to the RO in your behalf. My rep lost my recent CUE NOD within a week. Luckily I had sent one also to the RO.

3.If you are at the BVA send any additional evidence to them as well as the RO-and waive your RO rights-if you want the BVA to consider this evidence and this way hopefully-you might not get a remand.The BVA could decide the claim- still it has to go back to the VARO for the proper rating etc-

but a remand is a time consuming re-do-

often involving the preparation of the VCAA letter that the vet should have gotten in the first place-

A BVA award is not at all as complex as a remand.

Edited August 25, 2007 by Berta

[Pete53]

After I had filed my NOD and filled out my Form 9 and sent to VA. I actually did that myself I kept getting a letter ever few months from VARO saying that I had 60 days to add evidence before my NOD was sent to BVA. I called 800 827 1000 several times and got nothing.

At that time I was a Member and went to most of the monthly meetings of DAV in Dallas and one of the Members who was also the Adjutant for the State DAV listened to me and went to Waco VARO and told them he wanted to see my file. The file was checked out to my so called SO who had been reassigned to Houston VARO and had a desk stacked with the files sitting with dust and cobwebs on it. These files had sat for almost 2 years.

I had made inquiries and no one had really done anything till this dear man made them look.

It seems that when you appeal and you have a Service Officer that the BVA requires the SO to write a letter stating what the claim is about and what they want to BVA to consider as issues.

[Josephine]

3.If you are at the BVA send any additional evidence to them as well as the RO-and waive your RO rights-if you want the BVA to consider this evidence and this way hopefully-you might not get a remand.The BVA could decide the claim- still it has to go back to the VARO for the proper rating etc- 

but a remand is a time consuming re-do-

often involving the preparation of the VCAA letter that the vet should have gotten in the first place-


A BVA award is not at all as complex as a remand.

Berta,

This is so important. I felt that if the Regional Office didn't have enough sense once to read the claims file, why expect them to a second go around.

I would definitely advise everyone to place that waiver.

I noticed from my Statement of the Case and the Supplemental. So many things were left out by both Regional Offices, but I did send everything to the BVA.

I am not sure if my S.O wrote a letter for me or not , but sure didn't trust mine too. I took it upon myself to make sure that all lies were out in the open. Now, they can tear them apart.

My claims seems to be progressing, but as you said " remands do take time".

Josephine

Edited August 25, 2007 by Josephine

[free_spirit_etc]

I think it about time someone started holding some of the SO's accountable. I remember reading BVA cases where the vet had sent their appeal form to the SO - and the SO never submitted them - They missed the dealines - ad the BVA would not waive the deadlines - as the SO is not employeed by the VA - therefore the VA is not responsible.

I have questions about "in the constructive possession" of the VA. I think that any Service Records are considered to be in the constructive possession of the VA - whether the VA had them or not.

I was thinking that might also be stretched to government records - as those are kind of within the realm of things the VA is supposed to get for you.

Private records are a different matter. You have more control over those. So failure of the VA to get those can be failure of duty to assit (of you have identified the records and asked them to obtain them.)..but those records wouldn't be within the "constructive possession" of the Va before they recieve them.

My husband's first denial for lung cancer was based on the VA determining that he was NOT exposed to asbestos - because he was not part of any occuaptional screening programs.

We did some detective work - and confirmed that there were NO such proagrams for asbestos when my husband was an electrician. OSHA was just formed in 1970 - and the first OSHA standards didn't apply to the construction industry. Most Air Force Bases didn't even START ANY type of screenings and abatement programs until the mid to late 80's.

So his lack of involvement in the asbestos programs did NOT "prove" he wasn't exposed to asbestos. In fact, they more likely showed his risk was GREATER because he was exposed BEFORE safety programs were in place. (No screenings, no training, no respirators - that are NOW REQUIRED for people doing the same type of work he did.) They did kind of acknowledge the POTENTIAL for exposure(being an electrician) but said "Though the record showed you worked as an electrican for 13 years, there is no evidence that you were part of any occuaptional survillience or screening programs.."

Well how in the world are you supposed to be a part of a program that didn't even EXIST at that time? Duh.

So we did get evidence of when those programs started.

I am going to ask that those be considered to be in the contructive possession of the VA.

They are government records. They are military records. And if the VA is going to use lack of involvement in such programs as evidence that you weren't exposed to asbestos - then they should dang well find out when those programs started before making such a decision.

So I will ask that they be considered "in the constructive possession of" the VA.

Actually - my husband was one of MANY MANY vets exposed to asbestos during this time frame - so the VA SHOULD actually KNOW when those safety programs started. After they started you can more easily assume:

1. People were better protected from dangers of exposure.

2. Records were kept regrading potential exposure.

Being in ANY career field that was LATER a field that was regualted for asbestos exposure - if you worked in the filed BEFORE such a time - should raise the likelihood of exposure.

We also obtained records of the asbestos management plan from the last base he worked as an electrician.

THis plan shows buildings that had significant asbestos - and many of those buildings are ones that match the work orders he submitted to the VA for rewiring, maintaining wiring, etc.

It took us MONTHS to get that - we had to fill out FOIA papers - and actually in 2007 the base has still not done a complete baseline survey for asbestos.

I am going to ask that THAT report be considered in the constructive possession of the VA. It is a military record which WAS availble to them.

These are not private records. They are records the VA should have obtained prior to making the decision.

And yes, the vet should prove their case - but it is in the realm of the VA to get government documents and military documents relevant to your case. If they do not do so - I think an argument can be made that such documents were within their constructive possession.

I am not quite as sure on my husband's post service medical records. These were also records from the military base. When we went to get my husband's records - they gave us those little digital brief things they now call medical records - that take your entire records and reduce them to little blurps.

When we raised heck about the brief records - they told us they also have DOCTOR NOTES - that are DIFFERENT than your medical records.

The doctor notes from the base medical records DO discuss his asbestos exposure and relative risks.

We have no idea of whether the VA obtained these doctor's notes. (as it takes 6 months to a year to get the C-file copy).

BUT - if they did not - I am going to ask that those also be considered to have been in the VA's constructive possession.

My husband signed a release for the VA to get his post service medical records from the Air Force Base.

They informed them that they had them.

There is NO WAY they should even expect a Vet to know that there are medical records and doctors notes and these are separate. Or that when you allow the VA to get your medical records you are supposed to specify they are also supposed to get the doctors notes... Or that after they tell you they HAVE your base medical records that you are supposed to check to see WHICH records they got - and if they are complete - etc. etc.

When you sign a release for the VA to get you MILITARY BASE medical records - you assume they will get them ALL. You also assume that if there is a special way to ask for them to get them all that they VA should know this. You also assume that when they say they have the records that they have ALL the records.

So if there are any military base doctors notes that are instrumental in my husband's case that were NOT part of his VA record before I sent them - I am going to ask that these also be considered to be in the constructive posession of the VA.

Free

On Saturday AMs- as time allows-I continue to search my POA's cases at the BVA (in case I have to make formal complaint to the GC regardng their high remand situation due to VCAA violations-I already have an extensive list)

In three very recent cases I found this AM- where the vet had the same POA I have- the BVA actually had to do a remand of a past remand! I didnt search for more yet-double remands- this is unconscionable-

In one case the BVA on May 8, 2007 ,stated that they had vacated their past decision of Dec 27,2006 because they became aware of "additional evidence not in the claims file-but in the Board's constructive possession, when the board issued that decision. So it was based on an incomplete record."

http://www.va.gov/vetapp07/files2/0712321.txt

The evidence not in the c file but in their Constructive possession is this:

"REMAND

The most recent supplemental statement of the case (SSOC) was

issued on September 13, 2006. On November 28, 2006, relevant

evidence was added to the veteran's claims file for

consideration in his appeal, consisting of lay statements

from his wife and a fellow soldier. So as is evident, these

lay statements were not in his claims file when the RO last

considered his claims, and, as also mentioned, he did not

waive his right to have this additional evidence initially

considered by the RO. His representative made note of this

when submitting this additional evidence. So to avoid

potentially prejudicing him, the RO (AMC) must consider this

additional evidence prior to the Board. See 38 C.F.R. §§

19.31, 20.800, 20.1304 (2006); Bernard v. Brown, 4 Vet. App.

384 (1993)."

"His representative made note of this

when submitting this additional evidence" perhaps this is why the evidence did not get there within the 60 day SOC response time frame-I say submit it yourself and never depend on a vet rep to do it.

in any event-

the veteran-by not waiving his right for RO consideration ended up with this remand- as the BVA could not consider the evidence-the RO still has Jurisdiction over it-

What is intersting to me- here- and it often pays to ask for copies of these POA records- is that

the POA of record-on the case- NYSDVA-

I can prove-

only sends in 21-4138 with evidence when they want to-

They never sent any in on any of my claims for years-

This is a critical reason-unknown to me at the time- that the RO did not consider ANY of my evidence as it appeared the POA offered no formal support for my claims.

A 21-4138 calls attention to the claim and the evidence that is attached to it.

In the above case the veteran- like me and many others with this state POA- never got a legal VCAA notice.

The POA knew this and even if the specific vet rep handling the claim didnt know it- the POA at a higher level in the RO- (they have 4 senior VSRs there)

never checked at that point either before the claim went to the BVA- as MANY of this POAs claim do.

To only be remanded due to the VCAA violation.

Constructive Possession means that the VA has the evidence somewhere but it is not in the claims file.

A CAVC case I read -regarding the veteran raising the issue of constructive possession.

BUT the veteran was talking about private records that the VA had not obtained.

Thus the VA had no constructive possession at all.

Evidence is only what the VA has-not what they are unaware of or have not obtained.

The long point I am making is simply this:

1. If you respond to a SOC with additional evidence-make sure you send it to the RO yourself-

and within the 60 days (there is a proposed rule to change that to 30 and I mentioned this months ago-here-

The public comment time is over-and I sure griped about it in the Fed Register public comment section)

hope others did too-

2.Check your POA file from time to time to make sure they are giving you full support under their Missions statement- to include sending 21-4138s in support of your claim and additional evidence.

And make sure your NoDs are in their POA file on you as well as at the RO.

NEVER depend on a vet rep to send a NOD to the RO in your behalf. My rep lost my recent CUE NOD within a week. Luckily I had sent one also to the RO.

3.If you are at the BVA send any additional evidence to them as well as the RO-and waive your RO rights-if you want the BVA to consider this evidence and this way hopefully-you might not get a remand.The BVA could decide the claim- still it has to go back to the VARO for the proper rating etc-

but a remand is a time consuming re-do-

often involving the preparation of the VCAA letter that the vet should have gotten in the first place-

A BVA award is not at all as complex as a remand.

[free_spirit_etc]

I am starting to believe it is better to have NO So than a poor one. Having a poor SO can really prejudice the vet's claim.

The VA is not responsible for what the SO does - so if your case is mishandled - they act like you had a private attorney or something.

But I have also seen many BVA cases and court cases where they vet isn't given the benefit of the doubt on something because they were represented by an SO.

(The vet states they were not made aware of ___, but they were represented by an SO ==== Or the court said that the VA is supposed to give a "sympathetic reading" to information submitted by pro se claimants -- but this vet was represented - thus he was not pro se...)

I don't know. It seems like having an SO can work both for you and against you.

Free

After I had filed my NOD and filled out my Form 9 and sent to VA. I actually did that myself I kept getting a letter ever few months from VARO saying that I had 60 days to add evidence before my NOD was sent to BVA. I called 800 827 1000 several times and got nothing.

At that time I was a Member and went to most of the monthly meetings of DAV in Dallas and one of the Members who was also the Adjutant for the State DAV listened to me and went to Waco VARO and told them he wanted to see my file. The file was checked out to my so called SO who had been reassigned to Houston VARO and had a desk stacked with the files sitting with dust and cobwebs on it. These files had sat for almost 2 years.

I had made inquiries and no one had really done anything till this dear man made them look.

It seems that when you appeal and you have a Service Officer that the BVA requires the SO to write a letter stating what the claim is about and what they want to BVA to consider as issues.

[Josephine]

It seems that when you appeal and you have a Service Officer that the BVA requires the SO to write a letter stating what the claim is about and what they want to BVA to consider as issues.

At the time my Service Officer told me not to go to the BVA. It is a good thing that I wrote that 11 page letter to the BVA and Advanced on the Docket at the same time, to tell them of the negligence of the VA over the last 30 years.

He was in Huntington, West Virginia and I in Virginia and he didn't do a dern thing for me. I couldn't even get him to get my claims file and discuss it over the telephone.

Mr. Rogers said that since I was a " Sensitive 6" file, the DRO would not allow him to touch the file.

I don't know if this is true or not?

He would make an appointment with me to review the file and then when I would call, he forgot that he was susposed to do anything.

Shorly afterwards, he was hospitalized for heart surgery and retired.

I guess I am up the creek again.

Josephine

Edited August 26, 2007 by Josephine

[Ricky]

Great post Berta and good advice. I am kinda at this stage with my claim. The NOD was filed in August 2005. SOC issued Jan 06; VA 9 filed in Mar 06; Although they just ignored my request for a DRO hearing I continued to scream like a baby about it. Finally in Apr 07 they conducted a DRO hearing. During the hearing I provided my arguments plus submitted new doctor statements. No action by VA as of this date.

However, I fully expect to be sent to the BVA. When the file goes although I do not have a SO I intend to write such a letter myself. It will summarize the claim and list all evidence submitted in support of the claim. I intend to attach a copy of the evidence also and provide a waiver statement just in case some of it is not in the file.

In my form 9 I provided the laws/regulations that I felt VA had failed to apply to my case along with my arguments and references to my evidence. I also told them what level of rating I wanted and that I wanted BVA to take all actions necessary on the claim without a remand. Can the BVA issue a rating decision and assign a level of disability without remanding to the RO for such an action? OR will they simply look at my request and think that I am stupid? Regardless I will do a summary letter once the file is transferred to the BVA - hope they do not mind.