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

[Berta]

Free wrote:

"I think it about time someone started holding some of the SO's accountable"

If a Vet rep or SO costs a vet or widow money they can be sued in a state court.

A few months ago I posted a case like this here-

The veteran's vet rep had somehow caused him to loose retro money.

He sued the rep. He won the retro amount-awarded by the state court due to his reps negligence.

Also-recently I had to make something clear to my POA-NYSDVA-

I have to pay NY state taxes so I ultimately pay their salaries.

I made it crystal clear-in email

If the VARO does not acknowledge and assess my medical evidence properly regarding the pending decision in my Agent Orange claim- I will file a full complaint with the General Counsel under auspices of

"Termination of Agents, Attorneys, and Representatives":

Title 38, Volume 1 July 1 2002 and 38 CFR 14.633.

The evidence I mentioned I will use to support that complaint is all from the State of New York itself- emails and letters which reveal a lack of basic VA case law

and I will also bring up something they would never expect me too-

I witnessed them intimidate an elderly Navy vet to rescind his POA because the rep did not understand his claim.

I took immediate action and got that squared away-however-

the fact remains that intimidation and then lack of prosecution of a valid claim are only two of many instances where a rep can commit negligence and malpractice.

The reg above is a good one-

I have evidence under parts one and four of the regs-

for myself and this veteran.

My evidence for my complaint comes from the State Division Director himself and others employed as reps. I naming about 4 or 5 employees who also "mislead" me and/or failed to "prosecute" my AO claim-as well as their "refusal to comply "with "regulations governing practice before the Department of Veterans Affairs." 38 USC Chap 1, Part 14, Sec 14.633.

If the VARO properly assesses my medical evidence I will not file a complaint.

It was this POAs fault that my medical evidence was not considered during a DRO conference

and they refused to support my request for an immediate remand from the BVA which I got myself in weeks-

(all above documented)

And the Director insisted in two letters to me that I received a legal VCAA letter on my AO death claim.

I did not and this was confirmed recently by one of their own vet reps who pulled my 2003 "VCAA" letter out of my POA file and read it and this is the first rep on their POA I know of-in the entire division-NYSDVA-who actually knows what a VCAA letter is.

I heard scuttlebutt that the Buffalo VARO heard my whole radio conversation with Cong. Filner in which I specifically named them as violating the VCAA-

maybe this is why I just got my first legal VCAA letter yesterday from the Buffalo VARO.

It is in Archives at SVR -Stardust Radio August 1, 2007.

We have more power then we think sometimes-

Lousy vet reps who get paid well and the fact that federal VARO employees can easily deny the prime law we have--the VCAA-

diminish and stymy attempts of the unpaid volunteers like those here at hadit-

who- on their own time -try to help vets to succeed in their VA claims.

Congressman Filner definitely said he would consider proposing my amendment to the VCAA.

It will put responsibility onto vet reps, agents, and attorneys as well as the claimant too- to challenge an illegal VCAA letter and give the VA 60 days to comply by a legal one.

I found in minutes yesterday 3 recent 2007 double remands on my POA from the BVA-

Double remands- two re-dos-for each claim.

due to violation of the VCAA!

Years added to a claim -twice- because the RO failed to comply with the VCAA and NYSDVA as their reps-sat by and allowed that to occur.

I am not going to continue to do claims advocacy and then have dumb or lazy vet reps or ROs

undo my efforts by their negligence.

-

Edited August 26, 2007 by Berta

[Josephine]

Regardless I will do a summary letter once the file is transferred to the BVA - hope they do not mind.

Ricky,

I am not Berta, but I can tell you that the BVA does not mind if you send a summary letter and you may provide them also with any records that you may think will not be in your claims file.

Josephine

[Ricky]

Thanks Josephine - I did not think they would nor do I really care cause they gonna get shoved down their throats since the RO continues to like like idiots and ignor my medical evidence.

[Josephine]

Ricky,

That is exactly the same thing that I had to do. I also noticed when my file went to the BVA, there were several important papers left off the list and not sent.

I sent them myself with a 11 page letter of the negligence of the VA since my first filing date of 1978.

Every since I located those long lost " psychiatric records" from 1964, in 2004, the R. O has done nothing but place pot holes in front of me for me to fall into.

Good luck,

Josephine

[Pete53]

Josephine:

When your file is sent to the BVA it is supposed to be complete and contain all the records in the "C" File. Of course this would not include Medical Records that are at the VAMC.

[Josephine]

Pete,

I looked on the list and saw that papers were omitted by the R. O . One important letter was the letter by my Pastor.

Also the letter signed by the Director at the VAMC, pretaining to the second C&P was not included. It was quite a lengthy letter, stating that he would be sending a copy to the R. O as I had objected to everything within that particular C&P.

The Statement of the Case of October 7, 2004 did not include my post medical records from 1965 - 1979 and they were not mentioned in the Supplemental Statement either.

I made sure they were sent also.

I had included headaches in the NOD.

The counselor only included the anxiety with depression, but I filled an amendment the next day to include migraine headaches.

No one to date has acknowledged this. The R. O stated that I would have to file for benefits.

No true, I have a letter from the DRO stating that he received the amendment to include migraine headaches.

Maybe double maybe not,

Josephine

I sent this also to the BVa.