Waving Local Jurisdiction To Bring Back Case

[halos2]

If it has not been 90 days since claim sent to BVA, and I have evidence De Luca criteria was not utalized, and a few other medical issues present, can I request the claim return to my local VARO for rating?

Now is it waving jurisdiction to bring it back to local, or not waving to bring it back to local? I want to go this way versus going to the cave of BVA to get rated in some century. Anyone know what I am talking about?

[halos2]

Does anyone know where to find this? What reg states this? Please advise, as my time is ticking away...

[Berta]

In some circumstances you can ask for a remand-

I only have my own experience to help here- I dont know any reg you could use that specifically regards this -my claim was sent to the BVA in late July 2006-

my VCAA rights had been violated, and None of my medical evidence had been considered,since filing this claim in early 2003.

Strange things had gone on at the RO between my POA and the DRO and the VSM-

they used a response I made to an SOC as my formal I-9 appeal-in Jan 2006-

to get the claim in the transfer status- they got my formal I-9 the same week they sent me letter saying they used my SSOC response-

In some circumstances that might have been ok- using a response for a formal I-9-but in my case -it wasnt kosher at all.

I immediately obtained another IMO too-Aug 2006-

I wrote to the BVA that my VCAA rights were violated,

that none of my medical evidence had been considered in the denial and that I enclosed another IMO that was neither redundant to nor cummulative to the first one-of 2004- as it combatted the VA examiner's opinion-not done until after the initial IMO -which VA ignored.

I ended the letter (it was brief) stating I am a volunteer veteran's advocate and I know my rights and requested immediate remand.

(my attempts to get my POAs support for this failed)

I got the remand -I think now it was in August 2006,not Sept which I first thought-

The POA then filed a 4138 so it would look like they asked for the remand and one of them bragged that he got it for me- not true-if you check the dates of the 4138 (and read their emails telling me they would not support)

all in my OGC complaint against them-

I did find one other situation similiar to mine-

a female veteran's claim at the BVA on the same POA as me-in which this vet did the same thing- she wrote to the BVA and attached an IMO she had gotten which the VARO failed to even consider and she asked for an immediate remand too.

She got it.

If your VCAA rights were violated and if the VA failed to consider probative evidence they might remand your claim upon letter and evidence from you-

I only found the female vets claims at the BVA and havent checked to see if my remand is there- but there might be more remands like this.

They didnt have a docket number for me in August 2006-they do now-but it is for something else I think-

It would be good if your POA supports you on this.

Edited September 17, 2008 by Berta

[halos2]

Berta, I was so hoping you would reply to this topic. So now my process is to claim the evidence was not throughly examined as well as produce new IMO which state the relevant info and also refute the denial information they said which sent it to the next level by me, Right??

They said the dr did not relate info to current, however the information they used was given in their documentation...

ie dr did not say records to current was treated, used SMR...the Dr did say was treated since 1970's and gave them copies of office visit notes which detail clinic visits and validate a few further other injuries that occurred...

yet they say in denial vet had further injuries and were not addressed on IMO. The way they found ot the dates were from one of the doctors who gave them the info from his/my records.

So please advise what to do

steps to take

Info to sent

form to fill out

what to put on forms to get them to listen/read

My date started july 18th so you see time is running out fast

Thanks Berta for all your help with all the vets.

I am originally a New Yorker, born raised there went into service...moved away years ago.

[Berta]

I am a little confused- I assume you got the letter from VA that your claim was being transferred to the BVA- and that in your I-9 you formally rebutted what they said that you felt was wrong-

I mentioned the three conditions I used to get my remand-

1.VCAA violation (it has to be a prejudicial violation)

2.All med evidence (specially the IMOS) were completely ignored -not rebutted or opined on- but ignored-

3. and I also had an additional IMO as well.

I just wrote the BVA a letter and sent evidence of above.

Do you have a POA ?

You situation is different from mine-they might see a violation of the VCAA that would help you bring up to the BVA.

I only know of two fast BVA remands like this- mine and the veteran I mentioned and I think the VCAA error I got was critial to it-

[halos2]

I am a little confused- I assume you got the letter from VA that your claim was being transferred to the BVA- and that in your I-9 you formally rebutted what they said that you felt was wrong-

Yes I got the letter the VA sent it and the BVA received it and gave me a #.The POA made out the I-9 and just wrote in back condition...that was all that he wrote on it. He told me to sign a blank one and I didn't know what to do but what he said.

I mentioned the three conditions I used to get my remand-

1.VCAA violation (it has to be a prejudicial violation)

2.All med evidence (specially the IMOS) were completely ignored -not rebutted or opined on- but ignored-

3. and I also had an additional IMO as well.

They did not read all the info on my IMO and picked out parts and said they(DR's) were not creditable as they did not relate them up to current time, as they said they reviewed my SMR and have been treated by them since early 1970's and sent medical reports from treatments and what they had.

I just wrote the BVA a letter and sent evidence of above.

DO I write to them and say I want a remand? What else do I say? The poa told me the other day" I had 2 choices 1)don't wave jurisdiction local and bring it back because they did not follow DeLuca or 2) do not wave jurisdiction and leave it there to get rater at BVA level."

Do you have a POA ? yes

You situation is different from mine-they might see a violation of the VCAA that would help you bring up to the BVA.

They did not follow DeLuca with my file and made assumptions on IMO's...Took NP over 2 Dr statements...Disc form has discrepency's on it too but they did nothing with that.(not signed by examiner, info typed in that is incorrect and does not have correct dates either

I only know of two fast BVA remands like this- mine and the veteran I mentioned and I think the VCAA error I got was critial to it-

What are the ones so I can look them up. Thanks Berta. Hope this comes out correct so you can see my answers. The date sent was 18 Sept 08 so you see I have 28 days to do it. Thanks

[Berta]

I just heard from the BVA- since posting here earier today-

the VARO failed to act on the first remand and now the BVA has told them exactly what to do

(a little different then what I would tell them Ha ha)

The letter I just got is the FIRST time since Nov 2004 that my 3 IMOs have been acknowledged by the VA-

Halos- as I said my claim is very unusual-

circumstances that happened to me at the DRO level were very unusual-and this is referred to in the formal remand-

I did not waive jurisdiction and the BVA said I was correct in requesting remand in Aug 2006 -which the VARO has failed to act on-

I strongly suggest that you discuss your questions here with your vet rep- I know you dont deal with the dopes I had-

whose advice was consistently wrong-and whose support was Nil-

I have bonafide proof in this BVA decision I just got that I wasnt nuts and that the vet rep apparently lied- or the DRO did-someone sure did lie about my IMOs-

and I already spoke to my lawyer about this-(not a VA lawyer-but to see if I have civil action potential)

As I said my situation is much different than yours (NVLSP said it was first of its kind claim)and the POA you have might well suggest that you not waive any jurisdiction-

opps just read this part-

"The poa told me the other day" I had 2 choices 1)don't wave jurisdiction local and bring it back because they did not follow DeLuca or 2) do not wave jurisdiction and leave it there to get rater at BVA level."

This makes sense -what he said to you -because unlike me-the RO rebutted your IMO-

the RO never has opined on my IMOs at all.

BIG difference.

The only other remand that I know of-that I probably didnt save- it is under Buffalo VARO, New York State Division of Veterans Affairs , an Air Force veteran and I think it was in the 2006 BVA searches-and took me hours to find- mine isnt posted there yet-

This case wont help you- her IMO was ignored too-

both her and me had mitigated the damage of our prejudicial VCAA letters ourselves-

and the same RO and POA made sure our evidence was not addressed by the RO.

This is a big difference that having them rebutt an IMO- even if what they say is wacky.

A rebutted IMO might mean you need to get another IMO-and make sure it is not accumulative nor redundant-to the one you sent.

The BVA in this decision clearly told the RO my IMOs (3) were NOT accumulative nor redundant.They have to address them now.

I dont feel your rep is giving you the wrong info here.

De Luca factor is-in my opinion- not a VCAA violation.

Edited September 17, 2008 by Berta