Bva Appeal Decision?

[mags1023]

I just checked my ebenefits page and my appeals status has changed from "with VLJ for decision" to:

03/08/2013 Pending Dispatch BVA 03/08/2013 Decision & Claims File Dispatch

BVA

Can anyone tell me what this means?? I am wondering if I called the BVA, if they could tell me the decision over the phone. I'm really nervous and full of anxiety right now. This 6 years in the making and lots of blood and sweat......hopefully there will be no tears :)

[jbasser]

Look at your AB8 and see if it has changed.

HAs any new letters been added to the download letters colum on E Benefits?

Maybe a call would be ok.

J

[mags1023]

Well, I received my brown envelope in the mail yesterday from the BVA. Not good news! Denied on lumber spine and chronic fatigue syndrome. Remand on headaches. I checked this judge's prior decisions and she seems to deny or remand 80% of her cases. I am really ticked off, because she pretty much calls my wife and I liars. She said our testimony about me having back problems/soreness prior to my retirement was "not credible". It is 25 pages long, but I will try to scan it and post it later. She says as far as the evidence on my lumbar spine condition being caused by my auto accident in 1992 there are Dr's reports on both sides of the issue, but is placing more emphasis on a C&P exminers opinion since it provided stronger rationale to support the decision. I made the mistake on my retirement physical of saying my back was okay.....well on that day it was! Also, my medical records after my accident showed that I only had whiplash and upper back tenderness. After the accident, I hired a lawyer and he sent me to his civilian Dr. out in town, becauuse he said medical records were to hard to get from the base. Well that was a big mistake because it looks like I didn't have any issues after a follow up at the base. Of course after a divorce and moving around, I don't have any records from that civilian doctor or the physical therapy place that he sent us. My lawyer now is looking over the decision and says he will let me know if he thinks we should appeal the decision. He said you pretty much have to find that they neglected the law as far as an appeal goes. The way I read it is I can appeal if I don't agree with the decision. I know I would have to provide more evidence. Our case was settled out of court, so I don't have any way of getting the records. I did contact the lawyer who represented me and he wrote a nice letter saying he new my wife and I had physical therapy after the accident. The judge says he was not specific as to whether it was to any area other than my neck and upper back. I remember it was for my entire back and they gave a us massages. I don't think the Physical Therapy place is in business any longer and I doubt that they would have records back to 1992 any way. Just a bunch of BS after 6 years of waiting! Like I said, I will try to scan the decision wen I get home later. Any thoughts or suggestions on what I can do next are appreciated. Thanks, Mags

Edited March 16, 2013 by mags1023

[broncovet]

Mags...

Did the BVA decision give a "reasons and bases" as to why your testimony is "not credible"? Yes, the BVA can make a finding that testimony is not credible, but they have to have a reason to do so. Did they find your testimony in conflict with medical evidence? Was your testimony conflicting itself? The Board can not determine your testimony is "not credible" on the sole basis that you are an "interested party".

A BVA denial is a perfect time to consider getting a lawyer, but you need to do so without delay. This being said, if only "minor" issues were denied and you have a chance of winning, say, TDIU on remand, then your best bet may be to let the remand run its course.

The NVLSP will likely review your denial and make a determination if they think your "claim has at least one meritorius issue", and could/would represent you at no cost to you, should they determine you have an issue of merit. You will need to send a copy of your BVA denial to the NVLSP for review in order to do so. The NVLSP can do this, in part, because they will be compensated with EAJA fees. They pretty much know if you will win it or not.

[deanbrt]

If you appeal to CAVC you cannot introduce new evidence, only contend they made an error somehow. You can bet if you file at CAVC lawyers will come out of the woodwork looking for any error like that because CAVC pays them if they can get a remand. And that is the likely scenario. Remand back to BVA where you then can introduce new evidence. Unfortunately, we are talking about a few more years.

[mags1023]

Thanks Bronco and Dean:<br /><br />In referencing my past attorneys letter the board said: "However, the attorney did not specify that such therapy was for low back/lumbar spine as opposed to the neck/cervical spine".--- It wouldn't be opposed to the cervical spine. It would be in addition to my neck/cervical spine.<br />About our testimony, the board said: "Moreover this evidence appears inconsistent with the Veteran's service treatment records which only noted neck and upper back pain following the 1992 motor vehicle; with the lack of any references to low back problems subsequent service treatment records. As such, this evidence calls in to question the reliability of the Veteran and spouse, as historians of his current lumbar spine disorder. In light of the above, the board finds contentions that the Veteran experienced low back pain since the 1992 MVA is not credible."<br /><br />I initially filed for lumbar spine in this claim (2006), but modified it to thoracolumbar spine during the initial phases. I did this when I found new evidence in my service medical records that was not submitted because they did not copy the front and back of some of my medical records. The follow-up appointment I had with the base doctor reported that I was TTP in the trapezius and rhomoid area. Isn't that part of the thoracic spine?? Aren't they supposed to rate the thoracic and lumbar spine together?<br /><br />

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[john999]

Get a lawyer! Maybe he/she can help you off the merry-go-round.