Bva Decision, A Precedent - Yes Or No

[ken1939]

I filed a form 9 for a BVA hearing. I am claiming headaches secondary to SC cervical DDD and also for lower extremity pain secondary to SC Lumbar DDD. My headache diagnosis is tension headaches and contraction headaches SC at 0 %. I am appealing the rating and find many favorable BVA decisions where the diagnosis is not migraine and nearly duplicate my situation The ratings are as much as 30%. My lower extremity diagnosis is radiculopathy, denied because radiculopathy is a symptom not a condition. I have found literally hundreds of BVA decisions where the diagnosis is radiculopathy and not one was denied or remanded because of the diagnosis of radiculopathy. I have read somewhere in a forum that BVA decisions cannot set a precedent. But if there are many, many of these decisions, will this be enough to prove my claim?

[deanbrt]

that is the same attitude I found. with them. I have done better without them...

I can still recall my first visit to a DAV office, and it was horrible. As I walked into the office, the rep looked up at me and said, "What the hell is wrong with you?" Probably the smartest thing that I did was leave, and not do what I normally would have done. That is beat is little brain in with a chair.

Papa

[Vync]

I can still recall my first visit to a DAV office, and it was horrible. As I walked into the office, the rep looked up at me and said, "What the hell is wrong with you?" Probably the smartest thing that I did was leave, and not do what I normally would have done. That is beat is little brain in with a chair.

Papa

I have visited with a couple of DAV offices and had different experiences. I found it takes more than a single visit to a vet rep to work a claim. Remember, the DAV officers are usually pretty strapped for time and I had to make numerous appointments.

The first DAV officer glanced at my paperwork for 10 seconds and asked me if I had an IMO. I said 'not yet', and he ushered me out the door with advice to get an IMO and ignore BVA cases.

The second DAV officer provided a different experience. I was advised that IMO's quite often help tilt the scales in favor of the Veteran. The same rep also said my solid medical treatment history by the VAMC was so thorough that it would be surprising if the VA denied my claim. I was advised that BVA claims are not necessarily precedent, but it definitely does not hurt to include them in my claims. I followed their advice, included a few BVA case references, and won my claim.

The combination of rearching and reviewing via hadit, va site, BVA claims site, county/state vso's, fanaticbooks's site, DAV, and a few other research avenues made a big difference. It may not work for everyone, but it is definitely worth exploring all avenues.

[rakkwarrior]

I am truly sorry to hear all of the negative experiences people have had with DAV. I know most DAV staff spend a considerable amount of their time dedicated to their mission, however, this does not mean that people who are upset with the service provided do not have merit, quite the opposite, most issues are quite often related to miscommunication or lack of communication. I would always advise a person represented by any organization who feels as though their experience was lacking to speak to a supervisor. I appreciate seeing these comments in such a transparent manner, it helps to assess where we can improve.

I have provided an extensive discussion of Precedent Decisions of the CAVC and the higher Courts and their application upon BVA decisions.

Please feel free to review and ask any questions, this information is intended to assist those so inclined in understanding the relevance of Court precedent and how it is applies to claims.

[Pete53]

BVA decisions that favor your claim always cite the law and regulations that allowed the grant or the remand. Use the cites in your appeal Form 9 and refer or link it to your claim.

I found several BVA claims that helped me and I basically copied and pasted how they came to the decision.

In the Statement of the case and even a denial the VA tells the Vet what is needed.

This has been an excellent discussion.

Rakwarrior I was represented by the DAV and although I took over my claim my VSO was very supportive and I feel that if I had not had his encouragement I would have quit.

[rakkwarrior]

We generally review BVA decisions on cases we argued and compare the decision/grant with the Representative's Legal Brief. In many cases, we can contrast and see the similarities. It is really interesting to see how similar they are in substance and comparison.

If the many grants I've received, I've seen in a few cases where the Staff Attorney saw my brief as a challenge but instead of a denial it was a greater dicussion for the grant. I take parts of those too and ad them for my repertoire. This process of advocacy is a never ending period of learning, analyzing, and application. I really do thank everyone for their comments and discussion.

Maybe I'll provide Court cases from time to time for review and discussion. I really liked Sanders v. Shinseki, Comer v. Peake, Rice v. Shinseki, and Clemmons v. Shinseki of course.

Also closely look at Fenderson v. West for increased applications, and Norris v. West for TDIU claims to be inferred. The latter I bet your RO could get slammed for several CUE's on. i.E. failure to infer a TDIU claim for the schedularly entitled is fairly common place.