Waiving Review By Aoj (varo Level)

[allan]

Waiving review by AOJ (VARO level)

[allan]

Expidited Claims--Waiver of Review by AOJ

Consideration of Evidence Submitted

After Statement of Case

Under current laws and regulations,

claimants have the right to have the AOJ

consider evidence submitted or received

after issuance of an SOC. 38 U.S.C.

7104(a). Claimants also have the right to

issuance of a Supplemental Statement of

the Case (SSOC) if there are material

changes in, or additions to, the

information in the SOC or any prior

SSOC. 38 U.S.C. 7104(a), 7105(d); 38

CFR 19.9(a), (b)(3), 19.31, 19.37, 20.800,

20.903(b) and 20.1304©. As prescribed

in proposed § 20.1508(b)(2), if ECA

participants or their representative

submit additional evidence after the

SOC is issued, and continue to pursue

their appeal by filing a timely

Substantive Appeal, they are deemed to

have waived their right to initial review

of this evidence by the AOJ, including

readjudication of their claim and

issuance of any required SSOC. Rather,

as an ECA participant, they will agree to

have any such evidence reviewed by the

Board in the first instance. In agreeing

to this waiver by virtue of electing to

participate in the Initiative, claimants

would acknowledge that their claim

may be granted or denied based on the

Board’s consideration of this new

evidence in the first instance. By

executing an ECA Agreement with their

representatives, ECA participants would

essentially be offering such waiver at

the outset of the claims process. Because

participants and their representatives

are already aware of the evidence they

are submitting, an additional waiver of

AOJ review of such evidence, outside of

that waiver already contained in the

ECA Agreement, would be unnecessary.

If, however, VA obtains new relevant

evidence in an appeal that was not

submitted by the participant or his or

her authorized representative, under

proposed § 20.1508(b)(1) VA would

provide a copy of the new evidence to

the participant and his or her

representative and solicit from the

appellant a waiver of AOJ review of the

new evidence pursuant to the

procedures outlined in § 20.1304©. In

other words, unlike evidence submitted

by the appellant or representative, AOJ

review of evidence obtained by VA

would not be automatically waived by

virtue of the execution of an ECA

Agreement. Rather, VA would actively

solicit a waiver of AOJ review of such

evidence, as such waiver would not be

inherent in ECA participation. If the

appellant declines to provide a waiver

at that time, his or her participation in

the Initiative would end. The claim

would then be processed using ordinary

and established procedures under the

rights afforded under current statutes

and regulations applicable from that

point forward.

http://www1.va.gov/orpm/docs/20080416_AM77...djudication.pdf

[carlie]

allan,

Good post.

An employee at St. Pete VARO named "Bernie", has tried to convince

me there is no "waiver" of RO consideration at the BVA level.

carlie

[VetsLady]

At his BVA videocon hearing, my husband signed one of these waivers. Last November. His case may have gone for review faster had we not filed for TDIU at the mis-guided suggestion of his former SO.

Supposedly, his claim went to AMC early Sept., It's pretty clear cut claim, old (filed in 2003) and have received notice via AMC that his claim is now upstairs waiting for a rating.....rating there means a review also. I called and asked. They use terms interchangeably and for the same thing often.

I was also advised they are reviewing remands from 2006 now, but who really knows.

I feel he did the right thing signing the waiver.....our RO bucked his being in RVN for years, finally agreeing he was there and he received SC for that part of his appeal. Now, we await this 2nd part.

[Jayg]

Sadly, I cannot follow legalize very well. ;) Could somebody please post a layman's synopsis???

Edited October 28, 2009 by Jayg

[Berta]

A VA claimant has the right to waive AOJ review-usually they get this right when the case is prepared to be sent to the BVA.

waiver :

1. (Law) the voluntary relinquishment, expressly or by implication, of some claim or right

2. (Law) the act or an instance of relinquishing a claim or right

3. (Law) a formal statement in writing of such relinquishment

AOJ means the Agency of Original Jurisdiction and I assume this is always the VARO that the initial claim was filed at.

Sometimes BVA decisions state this phrase:

"The record contains no waiver of review of

this evidence by the agency of original jurisdiction,

however."

It means the BVA cannot decide the claim and usually must remand it. Sometimes---

I regret I didnt waive the AOJ review- it might have saved me time-I wasn't really sure then what it meant to waive the AOJ review-

I feel any vet confident of their evidence (and who double checks to make sure the BVA has it all) should waive VARO consideration-

because BVA lawyers can read and it can obviously get them out of the RO hamster wheel.

But I am anxious to see what others say here.In some cases it might not be to the veteran's benefit to waive the AOJ review-like when they find they had additional secondary disabilities and want to claim them in addition to the original claim.

The BVA can only take jurisdiction over claims that are sent to the BVA.

If a vet has say- a PTSD claim for higher rating that has been transferred to the BVA -they could also have a hearing loss claim and say- maybe a TMJ claim still at the RO. Say the vet finds a doc who states emphatically that the veteran's TMJ is directly due to stressful sleep problems and he grinds his teeth at night due to his PTSD nightmares. If the TMJ is at a ratable level this vet might well not want to waive his RO rights as the TMJ claim is intricately interwoven with the PTSD higher rating claim.

Maybe that doesnt make sense----------

hope others chime in here -that was a Good question Jayq

Edited October 28, 2009 by Berta

[allan]

Carlie, it’s very possible the VARO employee simply didn’t know.

I came across these codes doing research. No SO of VA employee suggested I send one in either.

Since I was laughed at by my SO early on in this process when I suggested M21 or CFR’s be used, I never brought it up again. He did ask if I was the code vet that was always posting on the internet. He had another good laugh when I said yes, that’s me.

He was also the SO that asked me why file for anything since I didn’t do anything in service but serve in the NAVY. I didn’t have him as an SO very long.

I am wholly convinced my claim could have been remanded back & forth with the AOJ & the BVA another decade, had I not kept sending in those signed waivers. A decade of it was enough for me.

I received a final decision from the BVA allowing my claim to go to CAVC & allowing me to hire an attorney as a result of sending in a signed waiver saving me yrs & yrs of waiting to see if a RO can apply VA laws correctly.

More vets need to try to understand just what this waiver is for. If you get the word from your SO that this won’t help you & your tired of remand after remand with the RO repeating the same error’s of completely failing to recognize evidence you’ve submitted. Than you need to send in a waiver to the BVA in order to put a stop to it. If you don’t, the AMC/BVA will keep you on the remand wheel until your dead or give the claim up. That is the goal.

**************************************************

Berta,

The PVA & Dr Bash went to the BVA in DC.

While there they said MS & secondary issues should filed & granted since the record already had the evidence. That was in 2005.

The AMC & several reviews by RO's the claim was remanded to, plus the BVA saying those claims would be held up until a final SOC was issued, I sent in several waivers. I was finally allowed to file those claims to a local RO just this last May. The claims were filed in June & I continue getting nothing but" we are still processing your claim" letters, but it is not being reviewed after 5 months.

My guess is, something that should have been processed over 4 yrs ago will be on hold another 4 yrs at the RO level.

They have one more yr with me & they get a writ.