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Need Some Quick Advice About Bva Motion For Reconsideration Granted


dav_marine72
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  • HadIt.com Elder

Hi Everyone,

I currently have a case at the U.S. court of Appeals for Veterans Claims. It's almost to the point where my lawyer gets my c-file (waited six months). She called me today all freaked out. After I got my decision from the BVA which basically didn't consider a ton of evidence I called my SO American Legion. They said there was nothing they could do and all I could do was move on to the Court and file a BVA motion for re-consideration. They said that the motion for re-consideration was hardly ever granted.

Well today my lawyer found out it was granted and they want the case back. She got all pissed at me because I forgot to tell her I did this. Well I never expected a reply. Anyway she and my wife want me to send a letter to the BVA stating I am withdrawing my motion for reconsideration and that I want the case heard at the court.

Now I do feel more comfortable with a lawyer but I do understand if this goes back to the BVA and they rate correctly she doesn't get any money. On the flip side this could be more PTSD training by the BVA and I wait forever and they give me nothing.

Has anyone ever been in this position? is it true that the BVA doesn't reconsider often or is this just a formality? I need to overnight my letter within a couple of hours at the latest.

Thanks.

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Right Congrats- they dont often grant a recon motion---

I suggest that you not be pressured by this lawyer on the "overnight" reply to her-

"Anyway she and my wife want me to send a letter to the BVA stating I am withdrawing my motion for reconsideration and that I want the case heard at the court."

Thjis is YOUR claim and this is your decision.

"Now I do feel more comfortable with a lawyer but I do understand if this goes back to the BVA and they rate correctly she doesn't get any money." That is potentially true- as I assume she was not repping you at the BVA ?????

A lawyer held up 8,000 bucks of a vets retro I helped due to something similiar-

I carefully read the attorney fees regs and prepared a NOD for the vet on this fee-

as I recall she didnt have any right to claim fee for the BVA case he had or even for a prior CAVC he had Pro se-

I regret I dont have time to find and post those regs-

I would be cautious of any lawyer trying to pressure you- the sky wont fall if you take your time to make this decision-

Can you pssibly scan and post the Reconsideration grant letter from the BVA here?

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to add- the regulations have changed regarding fee aggreements-

a lot depends on when the fee agreement was signed- do you have any access to a new copy of the VBM? they devote an entire CHapter to fee agreement situations with attorneys and VA claims-

Also you should have a specific fee agreement copy that you already signed whereby the lawyer spelled it all out-

I had a lawyer for 3 weeks but revoked because I was uncomfortable with the way the fee agreement was worded- she did say by phone that she knew what I questioned and that it was OK-

I took my time thinking about this-

it wasnt OK- I revoked the POA.

I have a BVA decision from 1999 that states part of the five figure award my AO claim could reap- she wanted to have part of that-no way-

The regulations are within 38 CFR 14.636 , 38 CFR 20.609 and in other associated regs and also within M21-1-

I cant post a link -my ride is here (the manure wagon-I have farm business-)

my point is that obviously the lawyer is pressuring you-

but what's the rush-

You need to check the regs and get input from others here on this-

also why not give Mike Daugherty a call at the Office of General COunsel-

Tell him Berta Simmons from NY suggested this-I talked with him one year ago tomorrow regarding a state vet org- as this doesnt seem kosher to me-to be pressured like this- Mike wrote some of the regs-he just got a promotion I think- someone at the General COunsel should be able to advise you- any benefits staff attorney-

Office of General COunsel Washington DC 1-202-273-6315

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  • HadIt.com Elder

Hi Berta,

Thanks as always. I didn't receive a letter from the BVA, my attorney called me today frantic. She says that the attorney for the U.S.C.A. will file a motion on Monday to send my case back to the BVA unless I overnight the letter today and provide my attorney with a copy and tracking number / received receipt for her Monday morning meeting.

My problem here is whats the rush? My wife only wants me to do it because she has PTSD from the VA and feels more secure with the lawyer. I say if they are pulling my case back then they know they screwed up. I sent the director of the BVA the BASH IMEs and all my records showing narcotics, nerve blocks, etc. for my back with the motion for reconsideration and said i can't possibly see how I rate 20% ortho and 10% neuro.

I just don't want to make a wrong move here.

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  • HadIt.com Elder

Thanks Berta,

I must have missed the second reply. I will call Mike and speak with him. I'm not going to overnight the motion to withdraw my BVA reconsideration. I don't like what this lawyer is doing to me. I'm going to read my agreement tonight and see what my options are. I spoke with my SO who is pretty good. He said he called around to the SOs in DC and they said that the BVA usually doesn't grant a motion for reconsideration unless they feel they made an error.

This gets me mad because I feel my lawyer should have been honest with me. She also stated had she known in the beginning I had filed a motion for reconsideration she would have thought differently about my case. I finally get what seems like the VA to admit a **** up with my case and I still feel like crap because my lawyer now is trying to pressure me into making sure she gets paid.

Here is how I see this. I go back to the BVA and wait for their decision. If they give me a proper rating I take it. If they don't I go back to the court of appeals.

Now here is another question:

My SO said I should be able to have my lawyer issue a stay at the U.S. Court of Appeals for Veterans Affairs. That way if I do want to go back I have a placeholder. Anyone know if this can be done?

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  • HadIt.com Elder

Hi Everyone,

Allow making calls to DC did me nothing I managed to find the information on my own. I should have done it in the first place but you know how it gets when our cases get talked about. Makes me feel sick because I just want it over. So I found the regs on this reconsideration:

§ 19.11 Reconsideration panel.

(a) Assignment of Members. When a motion for reconsideration is allowed, the Chairman will assign a panel of three or more Members of the Board, which may include the Chairman, to conduct the reconsideration.

(:lol:Number of Members constituting a reconsideration panel. In the case of a matter originally heard by a single Member of the Board, the case shall be referred to a panel of three Members of the Board. In the case of a matter originally heard by a panel of Members of the Board, the case shall be referred to an enlarged panel, consisting of three or more Members than the original panel. In order to obtain a majority opinion, the number of Members assigned to a reconsideration panel may be increased in successive increments of three.

© Members included in the reconsideration panel. The reconsideration panel may not include any Member who participated in the decision that is being reconsidered. Additional Members will be assigned in accordance with paragraph (:P of this section.

(Authority: 38 U.S.C. 7102, 7103)

[61 FR 20449, May 7, 1996]

After seeing what I didn't get from the BVA. I welcome a panel to look at my case. They also give me sixty days to send additional evidence. Here is the motion allowed reg.

(2) Motion allowed. If the motion is allowed, the appellant and his or her representative, if any, will be notified. The appellant and the representative will be given a period of 60 days from the date of mailing of the letter of notification to present additional arguments or evidence. The date of mailing of the letter of notification will be presumed to be the same as the date of the letter of notification. The Chairman will assign a Reconsideration panel in accordance with §19.11 of this chapter. (Authority: 38 U.S.C. 7103, 7108)

That gives me time to send all my pain center, chiro, and VA evidence up to the present. This will include a trial on the 22nd of this month for a spinal stimulator. I'll take my chances with the panel.

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I would go for the reconsideration...I hope I will get the opportunity with my case that is at the BVA. This is just my opinion, and you can always proceed if it doesn't work out here too. :lol:

I spoke to an attorney and told her where I am in my claims process and told her if it gets denied she is onboard. She was good with that. So I hope to get what I want accomplished, but if not after doing all the work myself for years, I will contact her.

Edited by halos2
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