What Is The Difference Between A Vacated And A Remanded Decision?

[emptyshell]

BVA granted me a remand on an 1998 decision they made.

In 2001, I had a BVA decision that vacated all prior decisions... 1999 and two 2001 Board decisions

In 2004. BVA granted me another remand decision.

All these remands and the vacate were due to RO neglecting to follow a 1998 Board decision to allow me a Neurologist and Orthopedic Surgeon. I was going over my 2004 Board decision and I noticed they became quite lax on their remand order now stating to "allow me neurological and orthopedic examinations"

My 2010 Board decision now denies me the entitlement because they state they have all necessary exams to make their decision.

The C&Ps were done by an ARNP again(2008) and not affording me a Neurologist and orthopedic surgeon to do the exams.

Also in the 2010 Board decision..they bring up past C&P exams(again done by ARNP's) and use that as evidence. Isn't a vacated decision a disallowance all previous evidence??

I appreciate any info you can send me....Thanks

[Berta]

"My 2010 Board decision now denies me the entitlement because they state they have all necessary exams to make their decision."

Can you give us the citation and Docket numbers of these BVA decisions?

"Isn't a vacated decision a disallowance all previous evidence??"

Not as I see it.It makes a past decision void but it sounds like they have negative evidence from these C & P exams.

The best way to over a ARPN is with an IMO from a Neuro or orthopedic surgeon.Was the surgery done at the VA?

[emptyshell]

Berta,

Since 1995 BVA has been remanding or vacating their decisions because they made a statement ordering RO in 1995," to allow me a neurologist and an orthopedic surgeon because in order to determine the nature and the severity of the residuals of a fracture of L2-L3."

Well, as you can imagine...RO finally sent me to those Drs. in fall of 1998. Those buggers then denied me by stating I never went to the appts. BVA denied me as well. Then I had BVA vacate their denial because I proved I DID GO TO THE APPTS. Funny thing RO said I called in and cancelled the appts. That sunt of theirs cost me alot of time to have to request for a reconsideration done to BVA and get that decision vacated. You know how the game is played out...here it is 2011 and I am still in the same rut...having to keep this in remand status so I can go back to the first 1995 claim. They would have to pay an award back to 1994.

My April 20, 1998 remand by the Board states, " To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the Regional office for the following development:

1. The veteran should be scheduled for VA examinations by an othopedic surgeon and a neurologist for the purpose of determining the nature and extent of the severiity of his residuals of a fracture of the L2-L3. The examinations should include all indicated tests and studies, including range of motion testing reported in degrees of arc.

To this date they have not given me that opportunity...still sending me to C&P exams with ARNP's(NO Dr. is signing off their results) also had a Dr. who is just an General Doctor.(NO SPECIALS OF ORTHOPEDICS OR NEUROLOGY) This not being done in the past always is sent back from BVA on remands.

This last BVA decision in 2010 makes no reference to the exact wording of their own BVA remand decision from April 1998. This decision the Board states," A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v West, Vet. App. 268, 271(1998). In this regard, the Board is satisfied as to compliance with the instructions from its September 2004 remand. The board finds that the RO has complied with the instructions by providing the Veteran an VA examination with substantially compiled 2004 remand instructions.

They left out that I was afforded the Neurologist and orthopedic surgeon to do those exams. "Their 2004 Board remand states that I should be given orthopedic and neurologic exams" Board remanded it back but changed the wording just saying "exams" Isn't that going against their own April 1998 remand?

If I am allowed those "exams" shouldn't they be still done by a Orthopedic Surgeon or neurologist? How can the Board base a decision on an ARNP's word. Or as well, a Dr. of General Medicine.

This is what I am going to basically be stating in my request for reconsideration to the Board. I feel they should have to vacate their decision and allow me due process. They shoud have to allow me what they ordered as in the original remand in 1998. Do you believe this is a good argument?

I am in the process of going to an IMO neurologist. I have my MRI scan next week and he is going to also give me an EMG? So can I send the results to the Board or will it make a difference at this point and time?

You can read the BVA 2010 Decision on my content. I placed the decision earlier regarding another issue.

Thanks

[broncovet]

Wow...no wonder they call it a hampster wheel of remands...

I think I recall reading that the VA cant "take away" benefits when the Veteran appeals. In other words, say the RO awarded you 30% and you appealed for 70%. The Board cant say...gee...I not only think you dont deserve 70% but I think you only deserve 10%.

When the Veteran appeals to the BVA he can get denied, of course, but the BOard wont take away what the RO has given you except in some very exceptional circumstances such as fraud.

One important thing is that the VA cant appeal your RO or BVA decision. YOu can appeal, but they cant. The VA can appeal Federal Court decsions, tho.

[emptyshell]

I guess it all comes down to this......Does the Board of Veteran Appeals have the right to take a remand order from 1998 which states, " The veteran should be scheduled for a VA examinations be an othopedic surgeon and a neurologist for the purpose of determining the nature and the extant of the severity of his residuals of a fracture of the L2-L3."

BVA continued to remand this issue back to RO all these years for that same reason as above. Then BVA changed their own "wording" of the remand order in 2004 to state, "The veteran should be scheduled for orthopedic and neurologic exams" I would say is going against all those remand orders they put in place. Can the BVA get away with changing the "wording" of their own remand orders or can I fight them by throwing out the Stegall v West ruling. I still have not been afforded what they requested. Though as I said below I am taking the advise of all of you saying to just get an IMO which I am doing now, but in 2010 BVA denied this claim. They did not follow their own remand orders. I have to appeal this so I do not lose my initial filing date back to 1994.

I do believe they willl have to go back and pay on this when I get the IMO proof I need but I have to get BVA to remand it or look at the IMO(which I am not sure I can send this in along with my request for reconsideration). I have had success before by writing a request for reconsideration in the past by telling them they did not follow their own remand so I hope this would help.

If not and they deny my request then at least I believe I get another 120 days to file the issue with CAVC.

I want to get off this hampster wheel...and I found out by all your help to just get the IMO.....so hopefully I can keep this claim open.

But does anyone know if the BVA has that right to do what they are doing??

[Berta]

"I do believe they willl have to go back and pay on this when I get the IMO proof I need but I have to get BVA to remand it or look at the IMO(which I am not sure I can send this in along with my request for reco"

If it gets sent back to the BVA- you can send the BVA more evidence (such as the IMO if the RO does not consider it for an award)up[ to the day the BVA signs off on the claim-but that day is impossible to know-so best to send the BVA anything the VA has not considered as well as copy of the IMO to BVA as well to the VARO.

"If I am allowed those "exams" shouldn't they be still done by a Orthopedic Surgeon or neurologist? How can the Board base a decision on an ARNP's word. Or as well, a Dr. of General Medicine."

It is an interesting point of argument -particularly if you did have surgery on this disability-but I still feel an IMO is the best bet here -as a VA neurology and ortho specialist could write a negative C & P as easily as a NP could.

For a claim that you said had been initially filed in 1994 -without a resolve to yur satisfaction- to me that means it definitely needs a strong IMO and that will get the claim ff the hamster wheel if the IMO doctor agrees the evidence warrants a higher rating or SC award.

I recently got an award that went back to the same filing date of your claim.. This was a DIC matter and not a comp claim.I was unwilling to allow them to manipulate C & P evidence this time.

BVA remanded me to cardio doc and I got a PA instead .I used that as point of contention BUT I also had 3 strong IMOs.I ordered a 4th IMO and before that arrived,I suddenly had a BVA award.

IMOs cut through all of the crap.

The IMO format is in our IMO forum.

[emptyshell]

Berta,

I understand how important now that IMO is going to be for my case. But if at this point I was denied by BVA and have this 120 days to appeal....I am now fighting tohave put back into remand staus I can further my evidence to support my claim. I just wonder if BVA can get away with denying my claim and going against thier own past remands orders.

I need BVA to put this claim back in remand status to make them go back to the claim date(1994). If they will not grant me this remand back to RO...then I am screwed and all these years of keeping it at least in a status that favors my award to go back to 1994 was all in vain. I know I can still try and have CAVC help but just been fighting this for so long noe and feel that if I go that route..then it will be tied up even longer.

Berta...can the BVA change their own wording in a remand decision or do they have to stick to the exact wording that they ordered in the very first remand?

I feel if they do...then I have a chance to have them place this decision back into remand. I hope to submit this IMO but I only have till March 3rd to get my Request for Reconsideration out to BVA.

BVA changed their own remand to make it easier for RO to deny me.(slipped in an ARNP to do the exam) so they could deny my claim.

The ARNP did not even take any measurements for Range of motion. She did not even look at my medical history cause she put on the paperwork that i had "No previous surgeries, 3 months prior I had my prostate removed) This was a bogus followup exam....the RO did not like what the first Dr. stated on theC&P exam 3 months prior...so the RO had the ARNP followupwith C&P exam.

She is known by many vets to be the RO's "ace in the hole"...know to write bogus statements to effect the outcome of the decision. If they would have just went with the Dr. from the first exam..I more and likely would have been rated at 40%.

Her followup exam stated," I jumped up on a table and raised my legs to 90 degrees and bent forward to 45 degrees...blah....blah...blah. The BVA went with her statements. I NEVER EVEN GOT ON A TABLE AND AND RAISED MY LEGS NOR DID I DO ANY BENDING IN THAT C&P EXAM. I came into the exam and sat listing in a chair cause I was hurting so bad from my Prostate being removed I was still trying to recover from complications of my post surgery. I told her I could not get up on the table. She asked me a few questions from her desk while punching on her computer then came over and reemed down on my head. I told her that hurt and I said I am done. She was one of the most rudest, condescending examiners I ever met. I heard later that she was notorious in this area for a bogus C&P exam. The Vets should be able to have some one like this taken out of the C&P exam decisionmaking process. As long as the VARO gets favorable C&P exams for the Vet(that will help them recceive any award), they will always have someone like her on the payroll.