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."
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 by Berta
GRADUATE ! Nov 2nd 2007 American Military University !
When thousands of Americans faced annihilation in the 1800s Chief
Osceola's response to his people, the Seminoles, was
simply "They(the US Army)have guns, but so do we."
Sameo to us -They (VA) have 38 CFR ,38 USC, and M21-1- but so do we.
Question
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 by BertaGRADUATE ! Nov 2nd 2007 American Military University !
When thousands of Americans faced annihilation in the 1800s Chief
Osceola's response to his people, the Seminoles, was
simply "They(the US Army)have guns, but so do we."
Sameo to us -They (VA) have 38 CFR ,38 USC, and M21-1- but so do we.
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