Poolguy Or Others

[Hoppy]

Is it a waste of time or cause excessive reading to submit BVA decisions in support of your claim in advance of an RO decision?

I have found so many BVA awards for panic disorder with less symptomology and duration of in service symptoms than the guy who I am helping. It makes me wonder if the RO's are not just denying panic disorder claims just to get the BVA to handle them.

[Berta]

I agree with Tbird because this comes up from time to time here.

The other day I was talking to a vets advocate in Texas-he is still submitting BVA decisions that are similar to claims and telling vets to-but I completely disagree with his premise-

if a vet submits a similiar BVA decision -the BVA has stated from time to time in their public decisions-that the BVA case submitted was only specific in nature to the veteran whose decision it was for.

Precedental CAVC decisions are another matter.

However, if you need to show a BVA interpretation of a reg -such as for a CUE claim, then I suggest you send in any BVA decision that has appropriate statements specific to the CUE claim.

I sent in 4 BVA decisions and 2 General Counsel Pres Ops- (These too can be used as evidence)for my CUE claims.

But I agree to with Rentalguy that the more citations you can use-the more it shows the VA you know what you are doing.

PS I forgot- I DID use a BVA decision for my AO death claim-

but only in this regard-

my VCAA letter was not in complaince with the VCAA at all and the RO even failed to send me a VCAA election response form.

I found a widow's case at the BVA- who also had not received VCAA notice and the BVA remanded telling the VARO tp prepare a proper VCAA letter and advise her to get an independent medical opinion.So I did that.

I cited this case to the BVA and it appears that the BVA agreed that I had mitigated the prejudicial VCAA letter I got -by following the BVA's advise in another widow's remand .

[Capt.]

Hello Hoppy, I hope you are doing fine. It seems that the RO finds it easier to move their quota from their desk to the BVA without reading any of the pertinent information/evidence. I used a BVA decision and quoted it in my Claim . In this case the Veteran had a very good IMO that specifically attacked the AO ruling in the 38 CFR for acute and subacute. The IMO written by Dr. Durham was so good as to show chronicity that the BVA agreed and the Veteran prevailed. I posted this decision at Hadit for others and Berta has told me she uses this to help her AO vets. The point I am trying to make is that an IMO that is done properly will have to be addressed at some point. Yes I agree with Berta, Jbass, Rental ,and Mags that even with a great IMO the BVA can ignore it and sometimes does. That the CAVC may be more strict in enforcing and deciding a "precendential law decision." Until Congress passes a law making the RO and the BVA to follow Precendential Law decisions then the claims backlog will grow and the remand order from BVA back to the RO will grow. I am probably going to have a panic attack if the RO does not move positively on my claim which is in the NOD reconcideration phase, in the next 45 days. I am hoping that Congressman Filner will entroduce a bill for Vets that forces the Precendential decisions from other RO and BVA cases. If enough of us here at Hadit call our Congress and Senators and point out the need and bombard Cong Filners office with this, then this is the only way the claims and remand backlogs will move forward fast.It will be a necessary law that will prove fair to the Veteran. Something needed for a long time. I am also hoping that the AO exposure law that Congressman Filner is sponsoring will go thru. EXPOSURE IS EXPOSURE,period. Hoppy , I would still continue to support the Vets claim with other BVA decisions and any similiarity to those decisions even if the BVA or RO ignore it. Regardless of the RO not wanting to read it because the Cfile gets to be a foot thick and the fact that, as Berta pointed out the BVA mostly uses the unique case ruling , eventually the CAVC will get it and they usually follow the Precendential law decisions. The Veteran would also have this in his record should the law be changed and then the Vet is retro and grandfathered in sometime down the road. Good luck Hoppy and God Bless, C.C. NEVER GIVE UP.

[Berta]

I think you mean one of these cases; they show how an IMO can help determine what type of PN and whether there is no other etiology but for AO for the PN.

I think you mean this case:

http://www.va.gov/vetapp06/files2/0606156.txt

In part:

“For purposes of presumptive service connection, resulting

from exposure to Agent Orange, acute and subacute peripheral

neuropathy means transient peripheral neuropathy that appears

within weeks or months of exposure to an herbicide agent and

resolves within two years of the date of onset. 38 C.F.R. §

3.309(e), Note 2 (2003). In addition, acute and subacute

peripheral neuropathy must have manifested to a degree of 10

percent or more within a year after the last date on which

the veteran was exposed to the herbicide agent during

service. 38 C.F.R. § 3.307(a)(6) (2003).”

“Dr. Durham begins his letter by noting that he has taken

several comprehensive histories from the veteran and can find

no other type of exposures either personal or industrial that

could potentially account for the veteran's neuropathy. He

also noted reviewing the veteran's VA medical records,

including the above examination report, his own medical

records, VA's Guide on Agent Orange Claims, and the veteran's

rating decision. Dr. Durham acknowledged that the veteran's

claim was denied because he did not complain of symptoms

within the very short time period cited by VA after exposure

to herbicides. He stated that it is clearly documented in

the medical literature that neuropathy can be latent for a

period of up to decades, and a denial based on short term

exposure and short term initiation of acute complaints seems

to be somewhat arbitrary. He opined that, given that the

veteran does not have any evidence of any of the other major

problems with which neuropathy is often associated, there is

at least a 51 percent probability that the veteran's

neuropathy may be directly linked to exposure to dioxin/Agent

Orange. “

“ORDER

Service connection for peripheral neuropathy of both lower

extremities is granted.”

Also

http://www.va.gov/vetapp03/files/0307119.txt

CONCLUSIONS OF LAW

1. The veteran does not have acute and subacute peripheral

neuropathy or axonal neuropathy as a result of a

disease or injury incurred during service, including exposure

to herbicide agents. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116,

5103, 5103A, 5106, 5107 (West 2002); 38 C.F.R. §§ 3.102,

3.156(a), 3.159, 3.303, 3.307, 3.309 (2002)

2. The veteran has chronic peripheral neuropathy as a result

of in-service exposure to herbicide agents. 38 U.S.C.A. §§

1110, 1112, 1113, 1116, 5103, 5103A, 5106, 5107; 38 C.F.R. §§

3.102, 3.156(a), 3.159, 3.303, 3.307, 3.309.

ORDER

Service connection for chronic peripheral neuropathy is

granted.

Service connection for acute and subacute peripheral

neuropathy, and for axonal neuropathy, is denied.

[poolguy11550]

Rental and jbasser, hit the nail right on the head. Legally speaking, Veterans court cases are case law and must be upheld by the VBA. Whereas, BVA decisions are more or less an informal settlement of sort and thus the R/Os are not bound to such decisions. However, the veterans claim is similar to the BVA case, you may be able to clearly point out that BVA is not applying and equal standard in the adjudication process. So it helps to send both BVA cases and Veterans court cases- based upon my experience, the problem is that the veteran does not clearly point out the exact references to make his/her point to these cases. If a veteran can clearly reference the BVAs mistakes and adjudication inconsistencies in the submitted cases then he/she stands a much better chance to prove their point.

Edited February 24, 2009 by poolguy11550

[Hoppy]

Poolguy and other

Thanks for the responses.

I am actually asking if I should send the BVA cases to the RO in advance of an original decision.

I have found some Veterans court cases for panic disorder. However, they say they are not presedebt setting.

[poolguy11550]

Hoppy- I think that it is OK to send the BVA cases in- point out the similarities and correlate them to your claim and ask for the same consideration as these other decisions. Still, it may take until the DRO process before they are looked at.