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 :)

[mags1023]

okay hadit experts I am seeking your advice on this. I am past the 30 day after BVA decision and have to appeal it within 120 days. I already have a lawyer, but since they charge the vet for their services, they are not eligible for the CAVC funds for billable hours if they win an appeal or remand. My lawyer is saying he has not found anything that he thinks we can appeal and that if we did appeal it would take him 40-50 hours to prepare (so basically he does not want to put in the time since he does not think he is going to get paid).<br />I feel the VA erred in that they are not considering my Thoracolumbar spine as I believe they are supposed to. I think they are ignoring that because my medical reports indicate I injured my neck and upper back. I initially filed for lumbar spine, but later informed VA that I wanted my thoracolumbar spine considered. They have never referred to my condition as related to my thoracolumber spine. Isn't this enough to appeal that they ignored this?<br /><br />Also, I think the decision should have been at equipose. They contradict themselves in the decision as first saying competent medical evidence was presented to reopen the case, but then they decide that the medical evidence I submitted was not competent.<br />Here is some of the decision on my lumbar spine:<br /><br />On page 12, para 2 of the decision, the boards states "In summary there is evidence of a current lumbar spine disorder which goes to the basis of the prior denial. There is also COMPETENT medical evidence indicating that the current disability is due to an in-service motor vehicle accident. No such evidence was of record at the time of prior denial". Then on page 16 para 2; they state " In this case both Dr Edge and the VA examiners in Aug 2009 and Jan 2012 indicated that they were familiar with the veterans contentions that his current lumbar spine condition lumbar spine disorder is due to an in-service MVA. However it does not appear that Dr. Edge reviewed the SMRs documenting the specific findings made after the 1992 MVA, nor did he address the fact that the veteran was found to be normal on the Dec 1998 ret physical and 1999 VA medical examination. (The Dr asked me if I had back pain at the time of the physical, I didn't realize they were talking about if I ever experienced low back pain). It states that they found mine and my wife's allegations that I experienced low back problems while in service not credible (or in lay terms my wife and I are liars!).<br />The board further finds acknowledges that the Aug 2009 VA examiner did not provide any stated rationale in support of the opinion that the current lumbar spine disorder was less likely than not relater to military service. Neverthe less, the January 2012 VA examiner did provide a rationale and emphasized the fact that the current radiographic studies of the lumbar spine being consisten with normal aging and inconsistent with the current disabilitybeing related to trauma. Although the veteran has criticized he fact that the Jan 2012 examiner diagnosed his disability as spondylosis when other medical care providers had found arthritis and DDD, no competent medical evidence has been submitted which specifically refutes the examiners opinion regarding his rationale or indicating thatthe diagnosis of spondylosis is inconsistent with the other diagnosis.<br /><br />For these reasons, the board finds that the opinion of the Jan 2012 VA examiner is entitled to the most weight regarding the etiology of the Veteran's current lumbar spine disorder. As this opinion is against the current disability being related to service, the board finds that the preponderance of the competent and probabtive evidence of recordis against the this service connection claim, the benefit of the doubt doctrine is not for application in the instant case. Consequently, the benefit sought on appeal with respect to this claim must be denied.<br /><br />As a final matter, the board acknowledges that the veteran submitted a copy of a board decision regarding a different veteran for which service connection was established for cervical and lumbar spine disorders due to an in-service MVA. However a board decision for a different veteran is not binding in this case. The specific facts and evidence of that case are different from what is currently before the board. Thus, not withstanding that the facts in a different case warranted service connection, for the reasons set forth above, the board has concluded that the preponderance of the evidence is against finding that the service connection is warranted in this case.<br /><br />Should I shop this decision around with some of the firms that specialize in CAVC appeals?? Thanks for your time!<br />

[Berta]

Once you file a NOA (Notice of Appeal) with the CAVC, your will probably hear from many lawyers.But why wait......

NOVA has a list of CAVC lawyers and so does the main VA web site (I think)

http://www.vetadvocates.com/directory2.html

Also we have had some great lawyers on our SVR radio shows. Their contact info is on the show.

If you succeed in getting a CAVC remand you should obtain the strongest IMO ,with a detailed medical rationale, you can get ,to overcome this:

"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."

This too would need an IMO doc's strong clarification,if possible:If you do get a remand.:

"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"

[mags1023]

Thanks Berta. I am currently represented by an attorney, so do I need to let them go first? If he doesn't want to do the work it takes, I don't really need him, but I feel bad. Do you think the issue that they are not rating my condition under the thoracolumbar spine has any legal value? My lawyer just doesn't feel we have a basis for an appeal and I don't know how hard it is to get them to remand it back to BVA or the region.

[deanbrt]

The others will take it on contingency. No upfront outlay. Simply filing at CAVC will get a ton of them contacting you with that offer. Something is off with your current attorney. At the least, they will review your appeal for free. I they think there is anything they can get a remand on they will go after it. Berta recommended some people you could call that might give you an idea right now.

[mags1023]

Dean, "Something is off with your current attorney" That's what I think also. He really didn't do me any favors at the BVA hearing.In addition to being denied for my lumbar spine, they had my claim for Chronic Fatigue Syndrome before us and he told them we weren't prepared to talk on that issue, so of course they denied it. I will definitely appeal it and see what response I get. Thanks, Mags

[broncovet]

I think Berta gave good advice. I will add:

Did you actually "engage" this attorney, that is, sign a fee agreement and send it back to him, or is he just reviewing your case to determine if representation is feasable? If you "engaged" the atty, then you would need to fire him, before enlisting another. Reason: Attorney's wont want to work on something another attorney is already engaged in. He will want to have "control" over your case.

If you did not engage the attorney, then seek another attorny's advice. You dont need to fire him...just dont sign and return the fee agreement.

All this being said, remember that your attorney has specialized experinece and, if you hired a reputable, and experienced VA attorney, naturally understand they wont go at your case the way YOU think they should. If they did everything just like YOU would, then you would not need an attorney.

Basically you need to make a decision on your attorney: Fire him, keep him, etc.