Formal Appeal

[Ricky]

I submitted my VA Form 9 to VARO the first week of Feb 06. I thought that once submitted it would get a docket number and sit around until BVA called for it. So I called 1-800 and asked for the status. I was told that they are working my claim and it should be done in about 30 days. When I asked what that meant I was told "thats all it says so you will get an answer within 30 days." Anyone wanna take a guess as to what is going on with my appeal? The appeal was for seven seperate items. Since then I have written and asked for a post decisional hearing with the DRO but they claim that although it has been received they can not tell me any info about it and I will get a letter in the mail when the meeting is scheduled.

[wallyg]

One of the things that you will find out about appeals, is that VARO can sit on them for as long as they like. They have had one of mine for over three years already, and so far have taken no action whatsoever; this despite regular reminders that since I am over 70, it should be getting expedited handling.

[Berta]

I guess like regular claims, it is hard to interpret what each specfic VARO will do with an I-9.

I filled out an I-9 in 1995 but it never went to the BVA-the claims were resolved at the RO level.

And my recent I-9 does not appear to be going there either.Both claims are being worked on instead.

I always Respond to SOCs and attach more evidence. I challenge anything they say ,most certainly any negative medical statements.

By the time they got my recent I-9 I had already laid out my argument for them.

They wanted to accept my Response to a Dec SOC as a formal appeal but I instead filled out the formal I-9-

The VBM recommends that you state on the appeal form that you take exception to and are preserving on appeal any errors they have made regarding 38 CFR, M21-1 etc, to include any failure to discharge Duty to Assist errors, as well as any due process errors.

I stuck all that in Block #9. There isnt much room on this first page.

In the time it takes (in my case 3 years) to even get an I-9 ,you have had time to get more evidence,buddy statements, IMos -whatever to help your claim.BVA is not going to perform a miracle-they will be competent for sure, but will decide on what evidence that you have sent to the VA. The I-9 should point out the weakness in their denial and highlight your evidence.

No time for war stories-I-9s involve only medical evidence.

I say hit them hard as you can with your answer to their # 10 question:

"here is why I think that VA decided my case incorrectly":

Use Word and paste it into a copy of the Appeal form.

There is room for fifteen typed lines on the first page of the I-9. You can attach more- but

by stating in strong terms how your medical evidence supports your claim.

My first line was "The Buffalo VARO,by consistently ignoring irrefutable and undisputable evidence, to include 2 IMOS-one from a former VA treating doctor (Neurologist)and the other from Dr. Bash,(NeuroRadiologist) whose expertise and Special Knowledge (as listed in his IMO)gives his opinion professional rationale, whose opinion also considered and referred to prior SOCs, FTCA documents, complete medical records of the veteran,autopsy,Section 1151 award documents-

unlike your examiner who only used a "few" records, puts this claim well beyond Relative Equipoise. The complete medical evidence fully outweighs the VA medical opinion yet the VA examiner offered support for the claim, thus:

(then I put the positive statements the VA doc made-then listed

the irrefutable evidence of record that she failed to even read,

stated she was wrong in her assessment of some medical abbreviations,

reminded VA that I had diagnosed my husband's heart disease and brain ischemia before they did (3 years after his death Sec 1151,FTCA) and so it was more than likely that they also could not diagnose this veteran's DMII properly)

Read those VA opinions CAREFULLY-they can be full of surprises-

The VA's doc practically stated that-if the VA didnt kill my husband first, he would have gotten DMII care-she ignored the fact that he was already suffering from the very same medical consequences that ADA commercials state are due to undiagnosed and untreated DMII.She never even read the autopsy or death certificate.

Then I told them I have not received ay VCAA letters yet on 6 claims and the second part of the appeal involving a SMC claim was entirely misinterpreted.I laid out the actual claim for them in the appeal

-as it was a CUE claim. They are working on that now -it is in the rating board.

My long point here is tell them immediately what they did wrong in deciding your claim. If you did not get a VCAA letter tell them that-tell them anything that made the C & P exam inaccurate, what evidence they failed to use, and why your medical evidence outweighs their opinion in their SOC, and certainly tell them of any violation of your rights in Duty to assist.

Sometimes they say ,when you file the claim,they will get private records, or records from another VA that treated you-if you do not check this out and it is better to get these records and submit them yourself you might get a letter like I did once saying the Newark VA had no treatment records of the veteran.

I got on that and found that his Newark records were quite extensive but the SSA had them.

Then I found out Rod's SSA file-which included his SMRs from USMC and Navy, extensive Newark records,and his award letter-that VA said they would get-they never even requested from SSA---

An I-9 can turn it all around. But they are skimming through our claims so state as much as you can

on the first page of it to get their attention and make them realise the BVA would remand this if they get it.

They were definitely working on my Response to the SOC but when they got this on Feb 8th, they also took actions and one of the claims in question was apparently decided but I dont know which one.

and I put the positive statements that the VA examiner

Edited April 28, 2006 by Berta