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Svr Bva Show Follow Up

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Berta

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Update to SVR BVA show-

I mentioned 2 BVA claims on the show and wanted to post the links here :

“The Board notes that the Veteran reported to an August 2011 psychiatric examiner that he had been awarded disability benefits from the Social Security Administration (SSA) two years ago. The Board acknowledges that the duty to obtain relevant SSA records extends to claims for service connection. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). However, in this case, the Veteran specifically indicated that the award of SSA benefits was for an unspecified leg condition. He has not suggested, and the evidence does not otherwise indicate that SSA would be in possession of any records relevant to the claims on appeal. Accordingly, a remand to obtain SSA records is not necessary. “

http://www.va.gov/ve...es5/1147493.txt

The claim's Point I wanted to make was as to how proactive WE as CLAIMANTS must BE.

If proof of continuous symptomatology is needed for the claim,the BVA determines of the evidence is credible.

For example in this above case - this veteran claimed reaccurrent headaches due to an inservice injury.

The veteran had no medical nexus between an in service injury and the headaches.

Also the veteran's self reported statements of continuity of the headaches had no probative value to the BVA.

“Based on the lack of credible evidence of continuity of symptomatology, and the lack of competent and credible evidence of nexus, the Board finds that service connection for a disorder manifested by headaches is not warranted. “

Somehow in spite of a receipt of a VCAA letter, it apears that this veteran took no action at all to try to bolster his claim.

And as I said on the show "No miracles occur at the BVA or at the CAVC". But this baby is darn close to a Miracle. The issue was TDIU.

The BVA actually (and correctly) went against the findings of the VA Comp and Pension director's opinion!

“Conversely, the Director of Compensation and Pension found that the evidence did not demonstrate the Veteran's service-connected PTSD was more disabling than the 50% assigned under the schedular criteria and there was no exceptional or unusual disability picture that rendered the schedular criteria inadequate. He further found that the evidence did not establish that the Veteran is unemployed and unemployable due to service-connected disabilities. However, because the Director provided no rationale in support of the opinion, it appears to be conclusory. We therefore afford that opinion relatively low probative value. “

ORDER

Entitlement to TDIU is granted on an extraschedular basis, subject to the laws and regulations governing the payment of VA compensation.

http://www.va.gov/ve...es5/1147472.txt

That stuff doesnt happen often at all but it shows that the BVA will give a higher level of attention to the evidence for and against a claim,and the BVA attorneys are far more proficient in VA 101 than the R0s are, and always up to date on any new precedent decisions, and changes in regulations, and ,in my opinion , will review EVERYTHING they have received that is rbative to the claim , unlike much of the adjudication at the RO level.The BVA does not want to be overruled by the court.So their denials are prepared as carefully as their awards or remands are.

Claimants have successfully had BVA decisions overturned but it doesn't happen too often.

Best to shape the claim right from the git go -with the potential of a possible BVA review in mind -if the claim is denied by the RO.

It might help (and I started to do this with my last claim), to add an evidence list to everything you send.

In other words I would state I have enclosed the following evidence, MRI dated XXX,and EKGS dated XXXX etc etc and this is in addition to my prior submission on (date) of the veteran's MRI as reviewed by Dr XXXXX., a medical treatise regarding XXXX, and paragraph 5 of the VA Training letter # XXXXXX regarding DMII.and etc etc

My final evidence list and submission was quite a long list but I had documented to VA everything they should have.in each subsequent submission I had made.

Edited by Berta

GRADUATE ! Nov 2nd 2007 American Military University !

When thousands of Americans faced annihilation in the 1800s Chief

Osceola's response to his people, the Seminoles, was

simply "They(the US Army)have guns, but so do we."

Sameo to us -They (VA) have 38 CFR ,38 USC, and M21-1- but so do we.

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Hello Berta,,,,,

Happy Easter Girl...... I really like what you put as having an "evidence list" here for having any evidence listed with the Claim or an answer to a Regional Office decision. It is just easier to literally connect those dots and make it so simple that a even a "Caveman can do it." It also gives to acknowledgement of evidence when or if it does get to that level of BVA or CAVC so that they would probably even be able to comment on to receive a possible favorable decision.

I have also used this though it did not have a chance to get to the BVA yet .....it will be going there as part of the Cfile on some issues that are now under appeal and going there.

Berta ,,,thank you for all you do and your tireless study . You help so many , including me . Happy Easter to you and your family. NEVER GIVE UP. God Bless, C.C.

Edited by Capt.Contaminate
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Happy Easter to you too Bill----

I have been trying to prepare something a little more detailed to follow up on the BVA SVR show we did.

This link is from M21-1MR as to how claims are transferred to the BVA.

http://www.docstoc.com/docs/93296570/Section-F---Veterans-Benefits-Administration

A lot is done before the claim and the C file leaves the RO of jurisdiction. It all takes time.

It is explained ion M21-1mr,Part 1, Chapter 5, Section F , under “Docketing,Certification, and Claims Folder Transfer.”

Also the 646 form has been brought up at hadit lately.

This form is prepared by the POA ,in some cases prior to transfer,but maybe not in every case.I have to check that out.

The following link is an explanation to Purple Heart VSOs as to how to prepare the form.

http://www.purpleheart.org/ServiceProgram/Training2011/TH-8%20Form%20646.pdf

In my case a state rep ,who had never seen my 2003 claim before, prepared the 646 in minutes,after it had sat in a stack on his desk for maybe weeks. In my opinion it didn't advance my contentions at all.

But if a rep prepares this form properly it can have significant bearing on your appeal.

Once in a while I see the BVA will refer directly to the 646.

In this case it was crucial and caused a remand:

“Also, the appellant must be afforded the full right to

representation in all stages of an appeal. 38 C.F.R.

§ 20.600 (2009). Here, the appellant completed a VA Form 21-

22, Appointment of Veterans Service Organization as

Claimant's Representative, in June 2009, in favor of the

Veteran's Assistance Foundation, Inc. However, there is no

VA Form 646, Statement of Accredited Representative in

Appealed Case, or written argument in lieu of a VA Form 646

associated with the appellant's claims file.

The absence of a VA Form 646, or written argument in lieu of

a VA Form 646, indicates that the appellant was not afforded

his full right to representation during all stages of the

appeal. See 38 C.F.R. § 20.600. As such, on remand, the

Veteran's Assistance Foundation, Inc. must be given an

opportunity to offer an argument on the appellant's behalf,

and this argument must be considered by the AOJ. “

http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp10/Files1/1009979.txt

Another case states this:

“The Board notes that there is no VA Form 646 (Statement of

Accredited Representative in Appealed Case), or equivalent

submission, of record from the Veteran's authorized

representative, the Disabled American Veterans (DAV), in

furtherance of the Veteran's appeal. The Veteran and his

representative were advised at the January 2010

videoconference hearing that if any issue could not be

granted in full, this matter would be remanded in order to

allow the DAV to review the case file and submit a VA Form

646 or equivalent. “

http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp10/Files1/1008523.txt

In this case the POA rep, on the 646 form, raised excerpts from the Physician's Desk Reference, in support of the claim.

http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp10/Files4/1033288.txt

A veteran can appoint anyone to represent them as explained within 38 CFR 14.630.

“In this case, the Veteran has appointed his spouse as his

representative under the provisions of 38 C.F.R. § 14.630 (2009).

In April 2010 the Veteran wrote to the Board, seeking a copy of

the last remand of February 2009 and requesting a VA Form 646 so

that his representative may prepare a post-remand statement in

support of the claims on appeal. In September 2010 both the

February 2009 remand and a blank VA Form 646 were mailed to the

Veteran. As the claims file must be made available to the

representative to review the post-remand record and offer written

argument on the Veteran's behalf, the Board has no discretion but

to remand this case. The appellant cannot be denied due process

and must be afforded his full right to representation during all

stages of the appeal. 38 C.F.R. § 20.600. “

There was more to this case, but the wife had the right to prepare the 646.

http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp10/Files6/1041386.txt

Whoever represents a veteran can advance the argument going before the BVA on the 646 form,even if they had subsequently filed a 21-4138 on behalf of the veteran.

The POA holds a copy of the 646 and it can be requested.

This is a very important part of the BVA transfer process for anyone with a POA or even a representative such as their spouse as in above case.

As time allows (I have been overwhelmed with farm business) I will try eventually to post more to explain not only the BVA transfer process but also more on the 646 form.

GRADUATE ! Nov 2nd 2007 American Military University !

When thousands of Americans faced annihilation in the 1800s Chief

Osceola's response to his people, the Seminoles, was

simply "They(the US Army)have guns, but so do we."

Sameo to us -They (VA) have 38 CFR ,38 USC, and M21-1- but so do we.

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I also like the idea of submitting evidence using sequence numbering such as page 1 of 10, page 2 of 10 etc. This way when the RO looses pages it can be easily noted.

When I count my blessings I count my family and friends twice.

If you don't know where you are going, any road will get you there.

Well done is better than well said.

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