Best Place To Hold Bva Appeal?

[Raybob]

I am in the process of completing my VA Form 9 to do a BVA Appeal of a claim.

My questions for the group are:

1. Would it be worthwhile to do my BVA Hearing at the Philly VARO which is about an hour away from me? Or would it be better just to go have my hearing in Washington DC which is 3 hours away from me? I know there is no compensation to travel to the hearing location. I am not in a big hurry -- it probably wont affect my overall comp rating of 90%. But having to only drive 2 hours roundtrip is certainly better than 6+ going into DC!

2. Do you think it will be OK to get Am. Leg. involved after I send in my Form 9. I need to get the Form 9 sent now since it has already been 30 days. I plan to send in, and then go to Am.Leg. to ask for assitance with the hearing. They are at the Philly VARO so its hard to go to them frequently to review paperwork, etc. I think my Form 9 is pretty clear to justify the request for BVA hearing.

3. I need to send the Form 9 in now to continue my claim, but I noticed at the bottom of the instructions that I might also be able to request a hearing at the Philly VARO in addition to filing the Form 9 to request a BVA hearing. I'm thinking the VARO hearing might be able to be processed faster than than the "out of DC" BVA hearing and it just might get me what I need. Is it possible to "double dip?" Any suggestions on that?

Thanks for any suggestions --- and especially for the many benefits this forum provides!

Cheers,

Raybob

[Raybob]

Do you have documented medical evidence for the hearing that VA has not opined on yet, that overcomes their Reasons and Bases for the denial?

Hello Berta!

Any thoughts or suggestions to my reply to your question which I posted above on 19 February 2013 - 01:15 PM?

I'm hoping that a face to face hearing would be successful because I can point directly to surgeon statements of using a drill to remove the bone, pull up and show on my CT Scan where the bone is missing, and also if they physically see me, one can see where my skull bone is missing since where it was removed, they only covered the hole with muscle tissue so that it is sunken in.

Thanks for all you do!

Ray

[Berta]

sorry----- i have an overwhelming lifestyle sometimes!!!!!!! and
miss a lot here......

Yes,if the VA did not list the stuff you mentioned as evidence,
then you can get that all into the record at the hearing!

However,I am concerned about this reply from Carlie:

"I believe your opportunity to request a DRO hearing may have
already passed

but perhaps not.

You can request a hearing be scheduled at your VARO, at any time -

keep in mind tho that it may not happen, in a timely manner."

I do hope you can get the hearing at the RO level.

I also suggest that you ask the VA to CUE the decision.

That tactic has worked for me. There are no regulations.

Here is my latest Go CUE themselves request:

When the VA fails to consider 38 CFR 4.6 by ignoring our probative
evidence, they have committed a legal error.

They Cued an erroneous and illegal decision on my Nehmer AO claim
last year in a heartbeat. I raised a ruckus with VA Central on
that...

If I had not asked them to CUE the decision I would have been in
the long BVA queue and the backlog and there was no need for that.

The VA reversed an erroneous denial I got in about 3 weeks.

I do suggest getting the help of a vet rep with that type of
request. If they dont understand it show them the printout of the
link I gave you and tell them NVLSP is aware that I succeeded in
December 2011 with that tactic and they know I pulled it on VA again
regarding my erroneous Nehmer decision.

My recent Cue request is posted here at hadit somewhere too.

There is no regulation on how to do this. I made it up. It worked for me in 2005 too.and even prior to that. I just had gotten so pissed off at the unconscionable way the VA can ignore our evidence and the very regulations that protect our rights (which has happened to me numerous times over the past 2 decades,) that I decided to use 38 CFR against them, due in part to after I graduated from a war school in 2007.

Liddell Hart said :

“the aim of strategy must be to
bring about this battle under the most advantageous circumstances." VA plays a paper war of the words.

The tactic of requesting them to call a clear and unmistakable error on themselves during the appellate period, if they have violated 38 CFR,

supports the strategy we all must use as our goal .....

. that the VA will give us a fair and equitable decision based on all of the established facts of the case.

I am a little lost on exactly the status of your claim.

Did you formally request a DRO review?

[Raybob]

Good Morning, Berta - thank you for your response.

Regarding your statement: "I believe your opportunity to request a DRO hearing may have already passed." I am not sure. VA has denied this claim several times back to my initial award following retirement in 2010. I filed two 21-4138's back in Nov 2011 for this issue the first requesting a SOC on 11/1/2011, then another requesting VA assign a DRO to my appeal. In the first, I wrote "I am willing to consider attending an SOC Hearing with a VA hearing Officer, if offered." In the second, I wrote "I am very interested in the opportunity to participate in an informal conference with my appointed DRO to discuss my case since parts of the skull loss are visible to the eye (the skull was cut away and covered only by muscle tissue creating a sunken appearance)."

I did not specifically state "I want a DRO hearing" so specifically. So I never received one. I just revieved my SSOC for this claim on 1/22/2013 which was the first communication I received received since filing those 4138's back in Nov 2011.

The instructions for the Form 9 have a paragraph that states "HEARINGS BEFORE VA REGIONAL OFFICE PERSONNEL: A hearing before VA regional office personnel, instead of before a member of the BVA, is not a BVA hearing. You can request a hearing before VA regional office personnel by writing directly to the regional office. DO NOT use this form to request that kind of hearing. If you do, it will delay your appeal. You should also know that requesting a hearing before VA regional office personnel does not extend the time for filing this form."

So, based on the above paragraph on the Form 9, I thought I could initivate a BVA appeal/hearing, then also ask for a Regional Office hearing. If it takes a year or more to get the BVA Hearing, perhaps in the interim I could get the RO hearing and possibly resolve the issue and, if favorable, cancel the BVA Hearing?? (I don't know, just a guess).

This CUE is interesting. Would I put the CUE in this Form 9 or wait until the results of the BVA or RO hearing? Know I need the A.L. to help since some of this is getting above my knowledge and skill level, but I don't ahve time to see them before I need to get this Form 9 in (about 3 more weeks).

I havent sent in the Form 9 yet but need to this week, so any other suggestions are welcome!

Cheers,

Ray

[Berta]

" I just revieved my SSOC for this claim on 1/22/2013 which was the first communication I received received since filing those 4138's back in Nov 2011."

Can you possibly scan and attach the SSOC to this topic?

Cover the personal stuff (name, address and C file number)

That recent document contains everything we need to now to help you more. It migt cpontain a critical legal error you could ask them to CUE on, but then again it might well contain ,in the reasons and bases, the keys to what they still need to have.

Your issue is a little complex.

Also we need to know exactly what the 90% is for.

Do you get TDIU with the 90% rating? (TDIU is comp paid at the 100%rate)

Are you trying to establish a basis for any of the SMC awards?

[Raybob]

" I just revieved my SSOC for this claim on 1/22/2013 which was the first communication I received received since filing those 4138's back in Nov 2011."

Can you possibly scan and attach the SSOC to this topic?

Cover the personal stuff (name, address and C file number)

That recent document contains everything we need to now to help you more. It migt cpontain a critical legal error you could ask them to CUE on, but then again it might well contain ,in the reasons and bases, the keys to what they still need to have.

Your issue is a little complex.

Also we need to know exactly what the 90% is for.

Do you get TDIU with the 90% rating? (TDIU is comp paid at the 100%rate)

Are you trying to establish a basis for any of the SMC awards?

Hi again, Berta

The full SSOC is 12 pages long... might be too big of a file to scan and attach. Most of it looks like boilerplate wording for the "Pertinent Laws; Regs; Rating Schdule Provisions... so I have just attached the first and last page.

It will take me a while to gather all the stuff for the 90%... the skull loss is not related to most, but there are two that are somewhat related for "painful scar" and "meniere's syndrome."

I don't have TDIU... is that the unemployable? I am not unemployable. Also, I am not trying to establish SMC.

SCN_0001.pdf

[Raybob]

Berta: "Also we need to know exactly what the 90% is for."

Answer: Sleep Apnea 50, TMJ 30, Painful Scar R ear 30, Scar R ear 10, L Wrist Arthritis 10, Degen Disk Dis 10, Tinnitus 10, Rhinitis 10, Hiatal Hernia/GERD 10, Torn Meniscus R knee 10, Hypertension 10, Meniere's Syndrome 10

As I mentioned earlier, the additional 10% for skull loss (or it could be more) won't put me near enough to receive 100% comp.

Ray

Edited February 25, 2013 by Raybob