Pelegrini 01-944

[allan]

With respect to the provision of notice on remand and waiver, the Court notes that in response to DAV v. Sec'y, supra, the Secretary, in a notice of proposed rulemaking (NPRM), has proposed to amend again § 19.9. If so amended, § 19.9(a) would provide:

(a) General. If further evidence, clarification of the evidence, correction of a procedural defect, or any other action is essential for a proper appellate decision, a Veterans Law Judge or panel of Veterans Law Judges shall remand the case to the [AOJ], specifying the action to be undertaken.

Board of Veterans' Appeals: Obtaining Evidence and Curing Procedural Defects, 68 Fed. Reg. 69,062, 69,065 (proposed Dec. 11, 2003) (also proposing to redefine in 38 C.F.R. § 20.3 AOJ to include, inter alia, entire Veterans Benefits Administration). The Secretary in that NPRM also proposed to amend 38 C.F.R. § 20.1304©, inter alia, to restore the waiver provision that had been deleted in 2001; if so amended § 20.1304© would provide:

© Consideration of additional evidence by the Board or by the agency of original jurisdiction. Any pertinent evidence submitted by the appellant or representative which is accepted by the Board under the provisions of this section, or is submitted by the appellant or representative in response to a § 20.903 of this part, notification, as well as any such evidence referred to the Board by the agency of original jurisdiction under § 19.37(b) of this chapter, must be referred to the [AOJ] for review, unless this procedural right is waived by the appellant or representative, or unless the Board determines that the benefit or benefits to which the evidence relates may be fully allowed on appeal without such referral. Such a waiver must be in writing or, if a hearing on appeal is conducted, the waiver must be formally and clearly entered on the record orally at the time of the hearing. Evidence is not pertinent if it does not relate to or have a bearing on the appellate issue or issues.

68 Fed. Reg. at 69,066.

http://www.warms.vba.va.gov/admin21/precop/cavc/2004/pelegrini_01_944.doc

[broncovet]

I certainly hopefull this proposed rule will not be implemented. This is a ploy to get more remands, based on the assumption that the RO does a better job with Veterans claims than the BVA/CAVC. Thousands of Veterans have been awarded benefits by the BVA/CAVC when the RO's refuse to do so. I am certain that the VARO's, who always interprets rules "against the Veteran" would follow suite on this also.

If the VA didnt follow the rules in the first place, when the court cases have said, time after time, that the VA must follow its own regulations, why should we think a "remand" would do any good.

The BVA needs to stop remanding..this just gives the RO still one more chance at misinterpreting and denying again.

When the RO shows they are not competent to follow the rules, why should we believe a BVA remand

would somehow motivate the RO to follow the rules they didnt follow earlier? The RO is much more skilled at "covering up" mistakes than they are at fixing them. When the Veteran goes to the trouble to appeal his case, and then it is remanded, most often the RO will "minimize" the Veterans benefits, if any are awarded at all.

[allan]

I couldn't agree with you more broncovet.

If a veteran has the eveidence and the VARO refuses to aply it, or repeatly makes the same error's, than an appeal to the BVA is where they'll want to go.

I have seen a decade pass from remands back to the AOJ, only to have them consistantly repeat the same tactics.

Puting the claim in the hands of the BVA is what I signed the form 9 for, not so the BVA could repeatedly put it back in the hands of a VARO to repeat their obvious (?)errors.

A denial by the BVA puts my claim in the court. A day in court is a warm welcome after a decade or so under the review of a Regional Office. They are bound by no laws or code of ethics it seems.

[Wings]

x

x

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I have twice "waived" (in writing) prior review by the AOJ. The first time, the BVA correcting decided it could not review a CUE claim, prior to AOJ adjudication.

I have again "waived" in writing, prior review of my NOD by the AOJ, and don't know what they will decide.

But since the BVA, on Remand, will tell the AOJ exactlt what to do, I still think it's better to get the Remand from the BVA, then let the AOJ sit on the claim twiddling their thunbs. That's been my expperince, so far.

~Wings

PS Allan, thank you for the "waiver" example. I did email from another email addy to say thanks, but your spaminator killed my message LOL! Thanks brother!! ~Wings

[broncovet]

Alan

I think the bottom line is that this is "just one more excuse to delay". The RO can play, "Who's on first?" with the Veteran and the BVA, with the RO's preferred result being delay. A delay of a Veterans claim is even better than a denial because the bottom line is that delayed claims dont count as denials in the numbers.

I will give 2 examples:

1. My example. I was denied, then granted a complete grant of benefit sought by the BVA. RO decides that "complete" means "zero%"..even tho that is more than a little bit frowned upon by court cases. The RO knows it will loose in court, so, what do they do? They keep it out of appeals. How do they do that? Easy..they "interpreted" my NOD as a "claim for benefits". So far, they have kept me out of appeals for 5 years..and counting..that is, AFTER the BVA already granted me complete benefits. RESULT: VARO DELAYS Claims 8 years and counting.

2. A friends example. This friend has a wheel chair scooter, 2 leg braces and is obviously 100% disabled..from war wounds in Nam. He applied for benefits in 1973. He was awarded NSC pension, however, he Should be getting 100%. VARO denies, delays, shreds, deceives..for more than 35 years.

Result: VARO (Cleveland) delays claim for 35 years and counting. The RO has demonstrated that they can literally delay the claim until death..and then not pay.

[allan]

Broncovet,

I may be looking at this all wrong, but unless a "final" denial by the BVA is provided, the BVA will keep up the deceptive practices of remanding it back to the AOJ knowing they will use anything to deny.

The waiver may not work, but it is one of the only courses I can think of to keep it in the hands of the BVA.

A denial by the BVA would open up the door & allow me to use an attorney & have a day in court after all these years.

One thing Tbirds hadit.com has shown me, is how corrupt the VARO level is.