The Hamster Wheel

[allan]

The Hamster Wheel

http://veterans.senate.gov/hearings.cfm?action=release.display&release_id=281d81f6-3e4b-4d53-95c9-c4952e7c390c

[broncovet]

oops a duplicate

Edited July 9, 2011 by broncovet

[broncovet]

Excellent Post Allan. In case it was missed, I will repost this pertinent part for Veterans who are appealing, highlighting in Bold VA errors that are appealable.

The Board Keeps Making the Same Types of Errors Over and Over Again

The decisions of the Board and the final judgments of the Court reflect that the Board keeps making the same types of errors over time. For example, one common error involves the type of explanation the Board is required to provide in its written decisions. When Congress enacted the Veterans' Judicial Review Act of 1988, it expanded the type of detail that must be included in a Board decision to enable veterans and the Court of Appeals for Veterans Claims to understand the basis for the Board's decision and to facilitate judicial review. See 38 U.S.C. § 7104(d).

The Board has consistently been called to task by the Court for faulty explanations that violate 38 U.S.C. § 7104(d). These violations fall into several common patterns. One pattern is that the Board often does not assess or explain why it did not credit positive medical evidence submitted by the claimant from a private physician, while at the same time expressly relying on a negative opinion provided by a VA-employed physician. The problem here is not that the Board decided to believe the VA physician and disbelieve the private physician. The problem is that the Board never explained its analysis (if indeed, it had one) of the private physician's opinion in the first place.

Another common pattern involves lay testimony submitted by the claimant and other witnesses. Despite the statutory and regulatory obligation (38 U.S.C. § 5107(b) and 38 C.F.R. § 3.102) to give the veteran the benefit of the doubt in adjudicating a claim for benefits, in many of the Board decisions that have been set aside by the Court, the Veterans Law Judge has refused in his or her written decision to assess, no less credit, this lay testimony. The decisions of the Federal Circuit and the Court of Appeals for Veterans Claims in Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006), and Kowalski v. Nicholson 19 Vet. App. 171, 178 (2005) chronicle this refusal to analyze the validity of lay testimony.

Sometimes the lay testimony that the Board refuses to analyze involves what happened during the period of military service. The underlying philosophy in these Board's decisions appears to be: "If the event is not specifically reflected in the existing service medical or personnel records, we don't need to assess the lay testimony" - no matter what lay testimony has been submitted.

Sometimes this lay testimony involves the symptoms of disability that the veteran experienced following military service. Despite the legal obligation to consider lay evidence attesting to the fact that veteran continuously experienced symptoms of disability from the date of discharge to the present, the Board often denies the claim on the unlawful ground that the evidence in the record does not show that the veteran was continuously provided medical treatment for the disability, without assessing the lay evidence of continuity of symptomatology.

Another common Board error is to prematurely deny the claim without ensuring that the record includes the evidence that the agency was required to obtain to fulfill its obligation to assist the claimant in developing the evidence necessary to substantiate the claim. The statutory duty placed by Congress on the VA to provide such assistance is a fundamental cornerstone of the nonadversarial pro-claimant adjudicatory process. Unfortunately, the Board often fails to honor this very important obligation.

[john999]

Allan

I am on the Wheel right now. The my claim went to the Court. The Court found an error because the BVA used the wrong rating schedule to deny my appeal. Now it is on remand back to the BVA which will most probably again deny the appeal using the right rating schedule. How long will I be on the wheel. Nobody knows. If I were you I sure as heck would hire a lawyer. Even with a lawyer you enter on dangerous ground when you hit the BVA and beyond.

[justrluk]

John -

I thin the metaphor of "being on the wheel" is the best I've heard in a while. Nothing describes the process better, IMHO. It's greatwhen people finally get their issues resolved. Personally, I wish two of my claims had never gone to appeal. From reading the experiences of others here, my near 3-year wait is not even close to resolution yet. I also have applied to the Board of Appeals set up by the DoD to review medical discharge "low-balls" for upgrade to medical retirement. I'd bet this will be completed before the VA decides my oldest claim; my application started 2/11 and is already completed and sent to the board for review. I was told to expect a 6 - 8 month wait, and even so, expect an answer before any of the VA issues get resolved. I guess in retrospect if I had not filed the NODs, the decisions would not be correct, but at least I wouldn't be focused on them so much.

[john999]

The thing is with those medical discharge upgrades you get a pretty fast decision but 98% of the time it is against you. Do you have a lawyer for this review?