Bva Vacates Its Own Decision

[Berta]

I noticed this case in trying to help bigjim in the DRO, BVA, CAVC forum-

I think his claim should be moved up here to claims research for more input.

This is something I sure haven't seen much in 20 plus years:

“FINDINGS OF FACT

A February 6, 2002 Board decision denied a claim for

compensation under 38 U.S.C.A. § 1151 for disability

involving broken legs, staph infection, and osteomyelitis,

claimed as due to VA medical treatment in 1996. That Board

decision did not accord the veteran full due process, as the

decision did not consider all pertinent VA medical records

constructively on file (particularly an additional pertinent

VA medical record submitted by the veteran after the Board

decision).

CONCLUSION OF LAW

As the February 6, 2002 Board decision did not accord the

veteran full due process, such Board decision must be

vacated. 38 C.F.R. § 20.904(a) (2002).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

In a February 6, 2002 decision, the Board denied a claim for

compensation under 38 U.S.C.A. § 1151 for disability

involving broken legs, staph infection, and osteomyelitis due

to VA medical treatment in 1996. However, that Board

decision did not accord the veteran full due process, as the

decision did not consider all pertinent VA medical records

constructively on file (see Bell v. Derwinski, 2 Vet.App. 611

(1992)), namely a pertinent September 1996 VA medical record

which the veteran submitted after the Board decision. Under

such circumstances, the February 2002 Board decision deprived

the veteran of full due process. Consequently, the Board now

vacates its February 2002 decision. 38 C.F.R. § 20.904(a).

The case will hereafter be assigned to another Board Member

who will perform a new review and issue a new decision on the

claim for compensation under 38 U.S.C.A. § 1151.

ORDER

The February 6, 2002 Board decision is vacated.”

http://www4.va.gov/vetapp02/files04/0215964.txt

What is unusual is the the veteran filed a Motion for Reconsideration but at the same time the BVA decided to reconsider this case again.

This was not a vacate order from the CAVC-but shows the power of a Motion for Reconsideration-Whether the BVA moves for it or the claimant does.(I would not wait for BVA to do this however)

The initial judge recused themselves as well.

I need to copy this and pour over it. This is A DELICIOUS DECISION.

"As the February 6, 2002 Board decision did not accord the

veteran full due process, such Board decision must be

vacated. 38 C.F.R. § 20.904(a) (2002)."

Beautiful.

A CUE cannot be used for a Duty to Assist error but a reconsideration request can do it.

[Vync]

I'm glad the Vet won. I really feel bad for the Vet. Dealing with broken legs, staph infection (probably MRSA), and osteomyelitis is bad enough, but then having the BVA shaft them like this for so long just makes it worse. Victory through persistance!

[dav_marine72]

What a great find!

I noticed this case in trying to help bigjim in the DRO, BVA, CAVC forum-

I think his claim should be moved up here to claims research for more input.

This is something I sure haven't seen much in 20 plus years:

"FINDINGS OF FACT

A February 6, 2002 Board decision denied a claim for

compensation under 38 U.S.C.A. § 1151 for disability

involving broken legs, staph infection, and osteomyelitis,

claimed as due to VA medical treatment in 1996. That Board

decision did not accord the veteran full due process, as the

decision did not consider all pertinent VA medical records

constructively on file (particularly an additional pertinent

VA medical record submitted by the veteran after the Board

decision).

CONCLUSION OF LAW

As the February 6, 2002 Board decision did not accord the

veteran full due process, such Board decision must be

vacated. 38 C.F.R. § 20.904(a) (2002).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

In a February 6, 2002 decision, the Board denied a claim for

compensation under 38 U.S.C.A. § 1151 for disability

involving broken legs, staph infection, and osteomyelitis due

to VA medical treatment in 1996. However, that Board

decision did not accord the veteran full due process, as the

decision did not consider all pertinent VA medical records

constructively on file (see Bell v. Derwinski, 2 Vet.App. 611

(1992)), namely a pertinent September 1996 VA medical record

which the veteran submitted after the Board decision. Under

such circumstances, the February 2002 Board decision deprived

the veteran of full due process. Consequently, the Board now

vacates its February 2002 decision. 38 C.F.R. § 20.904(a).

The case will hereafter be assigned to another Board Member

who will perform a new review and issue a new decision on the

claim for compensation under 38 U.S.C.A. § 1151.

ORDER

The February 6, 2002 Board decision is vacated."

http://www4.va.gov/vetapp02/files04/0215964.txt

What is unusual is the the veteran filed a Motion for Reconsideration but at the same time the BVA decided to reconsider this case again.

This was not a vacate order from the CAVC-but shows the power of a Motion for Reconsideration-Whether the BVA moves for it or the claimant does.(I would not wait for BVA to do this however)

The initial judge recused themselves as well.

I need to copy this and pour over it. This is A DELICIOUS DECISION.

"As the February 6, 2002 Board decision did not accord the

veteran full due process, such Board decision must be

vacated. 38 C.F.R. § 20.904(a) (2002)."

Beautiful.

A CUE cannot be used for a Duty to Assist error but a reconsideration request can do it.

[Pete53]

Beautiful.

A CUE cannot be used for a Duty to Assist error but a reconsideration request can do it.

Thanks Berta will they do it again?

[atlaturne]

I noticed this case in trying to help bigjim in the DRO, BVA, CAVC forum-

I think his claim should be moved up here to claims research for more input.

This is something I sure haven't seen much in 20 plus years:

"FINDINGS OF FACT

A February 6, 2002 Board decision denied a claim for

compensation under 38 U.S.C.A. § 1151 for disability

involving broken legs, staph infection, and osteomyelitis,

claimed as due to VA medical treatment in 1996. That Board

decision did not accord the veteran full due process, as the

decision did not consider all pertinent VA medical records

constructively on file (particularly an additional pertinent

VA medical record submitted by the veteran after the Board

decision).

CONCLUSION OF LAW

As the February 6, 2002 Board decision did not accord the

veteran full due process, such Board decision must be

vacated. 38 C.F.R. § 20.904(a) (2002).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

In a February 6, 2002 decision, the Board denied a claim for

compensation under 38 U.S.C.A. § 1151 for disability

involving broken legs, staph infection, and osteomyelitis due

to VA medical treatment in 1996. However, that Board

decision did not accord the veteran full due process, as the

decision did not consider all pertinent VA medical records

constructively on file (see Bell v. Derwinski, 2 Vet.App. 611

(1992)), namely a pertinent September 1996 VA medical record

which the veteran submitted after the Board decision. Under

such circumstances, the February 2002 Board decision deprived

the veteran of full due process. Consequently, the Board now

vacates its February 2002 decision. 38 C.F.R. § 20.904(a).

The case will hereafter be assigned to another Board Member

who will perform a new review and issue a new decision on the

claim for compensation under 38 U.S.C.A. § 1151.

ORDER

The February 6, 2002 Board decision is vacated."

http://www4.va.gov/vetapp02/files04/0215964.txt

What is unusual is the the veteran filed a Motion for Reconsideration but at the same time the BVA decided to reconsider this case again.

This was not a vacate order from the CAVC-but shows the power of a Motion for Reconsideration-Whether the BVA moves for it or the claimant does.(I would not wait for BVA to do this however)

The initial judge recused themselves as well.

I need to copy this and pour over it. This is A DELICIOUS DECISION.

"As the February 6, 2002 Board decision did not accord the

veteran full due process, such Board decision must be

vacated. 38 C.F.R. § 20.904(a) (2002)."

Beautiful.

A CUE cannot be used for a Duty to Assist error but a reconsideration request can do it.

[atlaturne]

Just scanning this quickly-it appears that whatever decision was initially rendered was reversed(remanded for new consideration)because the ruling/decision did not take into account the totality of the record(i.e.-there was pertenent evidence in the claimants file/history that was not taken into consideration.This resulted in the decision to reverse the initial denial.

[Berta]

right- the totality of the evidence.

I was disappointed that the BVA did not mention all of my evidence in their award I got last year.But the BVA reads enough to make an award once they get to a level of relative equipoise.

In many cases however, the one piece of evidence that gets lost, overlooked, or ognored-might be the winning piece of evidence.

Pete asked:

"Thanks Berta will they do it again?"

BVA has reversed itself before but these are cases that are very few and far between.

Lawyers think they are omniscient and don't like to admit they can make mistakes too.

In my opinion the BVA lawyers are superb for the most part in standing on rule of law and all legal and medical criteria in 38 USC.

But they cannot consider what they don't have-and have to consider ALL relevant evidence they do have.

I would not wait to see if the BVA would vacate any decision like this on their own.

The vet knew something was wrong and the vet filed a Motion to Reconsider.

The BVA knew it too and did the right thing.