Waiving Review By Aoj (varo Level)

[allan]

Waiving review by AOJ (VARO level)

[broncovet]

Thanks Berta and Allan.

Jay:

I will try to restate what has been said in this post.

THE PROBLEM: The Veteran gets denied benefits by the RO, often because the RO never read all the medical evidence. The Veteran appeals, and the BVA "remands" (sends it back to the Regional Office). The RO again fails to read the evidence, and issues a new decision denying the case AGAIN. The Vet appeals again, and this goes on, sometimes for 10 years. The Board of Veterans Appeals understands the Veterans dilema, but there is some law the RO has to have a chance at adjucitang the claim..the BVA cant just decide it for them UNLESS The Vetran signs a "waiver". The Veterans claim winds up on a "hampster wheel", that is it just keeps going round and round in circles and never gets anywhere, sometimes for 30 or more years. Denial, Appeal, Remand, Denial, Appeal, Remand...and on, and on. and on.

SOLUTION: The Veteran signs a waiver, and the BVA can now decide the case and Veteran gets his benefits at long last.

Bottom Line: Sign the waiver and send it in or the RO will jerk you around forever.

[carlie]

The "waiver" we are referring to comes into play at the BVA level.

Any additional evidence a claimant submits,directly to BVA,

(whether by mail or at a hearing), must go back to the RO for their consideration,

UNLESS the additional evidence is accompanied by this

"Waiver of Regional Office Consideration".

carlie

Edited October 29, 2009 by carlie

[carlie]

Results of additional evidence submitted with a waiver:

http://www4.va.gov/vetapp09/files3/0919175.txt

Since additional evidence was received, the Board sought a

waiver of regional office consideration pursuant to 38 C.F.R.

§ 20.1034© (2008), which states that new evidence must be

referred to the Agency of Original Jurisdiction (AOJ) for

review unless the procedural right is waived by the appellant

or representative, or unless the Board determines that the

claim to which the evidence relates may be fully allowed.

--------------------------------------------------------------------------------------------

Results of additional evidence submitted without a waiver

http://www4.va.gov/vetapp09/files3/0923277.txt

The most recent supplemental statement of the case is dated

in February 2009.

In April and May of 2009, the Veteran submitted additional evidence,

consisting of a letter from his spouse and an address of a private podiatrist (K.R.S., DPM), who has treated him.

The Veteran did not submit a waiver of regional office consideration of the new evidence, and the Board must remand the claim so that local review and

development can be accomplished. See 38 C.F.R. § 20.1304

---------------------------------------------------------------------------------------------

http://edocket.access.gpo.gov/cfr_2009/jul...8cfr20.1304.pdf

§ 20.1304 Rule 1304. Request for change in representation, request

for personal hearing, or submission of additional evidence following

certification of an appeal to the Board of Veterans’ Appeals.

© 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 agency of original jurisdiction 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.