Appeal Questions.

[Guest Morgan]

I'm trying to put together the appeal letter and I have a tendancy to go on a rant and show how incompetent the rater (and ultimately, the service center manager) was in my husband's denials. Of course, I know that won't help anything, so I rant on paper and then go back and edit it all out. :P Anyone else do that?

Here's a question. Can a NOD be sent directly to the BVA instead of taking it through the VARO? There are so many blatant (undebatable) errors that I don't know whether to give the VARO a chance to correct them or go straight to the BVA, hoping it will at least slap their hands for the incompetence. I would like to surprise them with my findings of all the mistakes that prove flagrant misrepresentation of his competent medical evidence.

I found a BVA case almost identical to the sitiuation for my husband, and BVA granted SMC R (1). Does it do any good to include the relevant part of that decision in our appeal letter? I know BVA cases are not precedential, but the case states the application of the SMC regulations as they are related to my husband's situation too.

Carrie

Edited February 23, 2006 by Morgan

[Guest Berta]

"Here's a question. Can a NOD be sent directly to the BVA instead of taking it through the VARO? There are so many blatant (undebatable)"

Unfortunately a claim only gets to the BVA when the vet gets a I-9 formal BVA appeal form and sends it back to the VARO-the VARO gets a BVA docket number (they are about one and half year getting to these dockets)

The receipt of the I-9 form ,by the VARO, however- and there has been discussion on this here lately (Ricky wrote up a GREAT appeal)

can often trigger a better decision out of the VARO.

The I-9 will be attached to a denial letter with a SOC.

The SOC has to be pulled apart and argued with-

The VA medical opinions that go against the claim have to be challenged.

Anything positive for the claim has to be restated and the positive evidence should again be referred to.

The claimant should also make the point that they fall within the Benefit of Doubt criteria and then say they

"take exception to all errors of application of VA regs in 38 CFR, M21-1, any errors in application of duty to assist (I forget what else I posted) etc" that the VARO has made or that the BVA would make in deciding the appeal.

I think a claimant could ask for an SOC and the I-9 form at any time during the VARO process, however,

after an initial denial but it is only the I-9 form that gets a claim on the BVA docket for that long wait.

[Guest Morgan]

Thank you, Berta. I will do it just that way. I had my claims cover letter written up just as Ricky wrote his appeal, hoping to avoid denials. But since VAROs have a problem reading English, I will do it again with the NOD and maybe the BVA will read. At least all of the research is done so I can use it again.

Should I include an excerpt of the similar BVA claim in the appeal? It is very close to my husband's claim. In fact, the other veteran only had a different condition for his second 100% rating. His was anxiety reaction, instead of pulmonary conditions. Both have regular aid and attendance, two 100% P&T, and SMC(p) f(4) for the second rating of 100% which brought it to the equivalent of SMC (M). They both had ratings above that, with his combined at 90% and my husband's at 60%. If the CUE had been considered, my husband's would have been 80%. They granted the other vet the SMC R (1). Of course, I have read BVA cases that ended with opposing decisions for the same thing, and I know BVA cases are not precedential. I don't want to clutter the appeal if it won't help.

[Guest Berta]

I think you should hold onto that BVA decision as a reference but I don't think it will help here-

If it was exactly for the same conditions and your medical evidence is the same as what the BVA used -that is different matter-

I am waiting an SMC decision and told them exactly what I expect----SMR R-1 retro.

But it is filed as a CUE claim. In any event I have already prepared a statement that qualified the deceased vet, my husband, (with medical evidence) for the R-1 award in his lifetime yet was denied posthumously and never appealed.

Have you spelled out to them (like they are 12 years old) exactly why his disabilities fall under the 38 CFR 1114 SMR levels?

One of our hadit members did this for her dad's claim- Laurie-

it was a lot of work--- but she associated the SMC regs with the specific med evidence they had- it took time for them to get it right- but they finally did.