Hello My 13 Year Old Claim Remand Went To San Juan Any Ideas

[oldman273]

Hey all I have been waiting on my VARO Columbia SC to get my remanded BVA claim that has been sitting at the VARO office for longer than it took to get through the BVA. I have went back through the post and read up does anyone have any recent dealings with VARO San Juan? I know this claim is complicated and was remanded and ready to rate before the VARO in Columbia SC but for some reason they have farmed this out.

Not getting into a long drawn out story of woe but I have fought to keep this claim alive since 2001 it went all the way to BVA I won an remand back to VARO Columbia SC in 2009. I put in some new medical evidence a MRI and a Surgeons statement that based on my SMR and condition of my knees based on my age I needed a knee replacement(s) and the fact my knees are done for my age and normal wear. With all of that said what is my recourse should I get a rater there in PR that decides to agree to disagree? I know that the VA is getting swamped but It would really suck to have to submit new evidence and start all over again. I am not going to give up Thanks have a good day..

[Berta]

"in 2009. I put in some new medical evidence a MRI and a Surgeons statement that based on my SMR and condition of my knees based on my age I needed a knee replacement(s) and th......etc"

In my personal experience with a BVA remand some years ago,

I got a copy of the C & P that BVA had ordered on remand, right away , knocked it down medically, and sent my argument to the C & P , to the BVA under my Docket number.

The BVA had ordered a cardio C & P opinion and I got one from a PA with no significant cardio expertise. The BVA agreed with me that the opinion was too speculative and disregarded it in favor of my 3 IMOs from real doctors.

I had also sent the BVA copies of most of my probative evidence that the VARO had ignored as soon as I got the BVA docket number.

I also emailed the BVA ombudsman, to get verification that they got what I had submitted

BVA Ombudsman at 1-202-461-8069. FAX 1-202-495-5517

I always used bvaombudsman@va.gov to get ahold of them to get a hard copy reply.

I did not trust ,at that point, that my entire C file would get to the BVA,from the VARO.

By the point of BVA transfer, it had been at VARO Buffalo, then to the AMC, then to the Seattle VARO and none of them could read.

If you sent your AOJ VARO anything after the BVA docketed your claim, I suggest you make sure they (BVA) has it all, even if you have to copy it all again and then send directly to the BVA.

[oldman273]

Thanks Berta, here is my answer to one of the questions: got a copy of the C & P that BVA had ordered on remand, right away , knocked it down medically, and sent my argument to the C & P , to the BVA under my Docket number.

Did that as well as replied to the VARO who questioned my claim with a "Student" my VA is a host to a college and they train up their Doctors using us Veterans. I am going to look at the remand orders to the VARO and here is what I have

On remand, the appellant is free to submit additional evidence and argument on the remanded

matters, and the Board is required to consider any such relevant evidence and argument. See Kay

v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider additional

evidence and argument in assessing entitlement to benefit sought); Kutscherousky v. West,

12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that "[a] remand is meant

to entail a critical examination of the justification for the decision." Fletcher v. Derwinski,

1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in accordance with 38 U.S.C.

§ 7112 (requiring Secretary to provide for "expeditious treatment" of claims remanded by the Court)

I went out and had a surgeon reply to their remand who looked and noted my SMR a MRI, x-rays and all of my evidence treatment records. About the only thing I have left to toss at them is the kitchen sink. Is there anything that I may have overlooked.

The Surgeon I have that wants to do my knee replacement when I get ready put it in writing and the VARO and BVA has everything

this was his last statement and all history including my SMR are listed in his report.

THE PRESENT DIAGNOSIS OF MR. XXXXXX IS ONE OF A DEGENERATIVE PROCESS BILATERAL KNEES WHICH NO DOUBT HAD ITS ORIGINS DIRECTLY FROM THE TRAUMA HE SUFFERED WHILE IN THE PERFORMANCE OF HIS MILITARY DUTIES. THIS STATEMENT HAS BEEN VALIDATED BY THE PREVIOUS CONCLUSIONS BUT AT THIS POINT, BASED ON THE PRECEDING PRESENTATION; IT IS IN THE OPINION OF THE UNDERSIGNED THAT THE DEGENERATIVE CHANGES IN MR. OWEN’S KNEES ARE INDEED A DIRECT RESULT OF THOSE INJURIES.

[Berta]

The surgeon's remarks are excellent.

But it is always a good idiea fir any doctor opining for a claim to use the "at least as likely as not" or "More than likely" statement as VA is familiar with that wording.

I assume (because I forget what you posted here before that ,by "validated by previous conclusions" and by 'a direct result of those injuries' the surgeon meant that this is all claimed due to an established service connected disability that you have.

I know the BVA will get the point of this IMO I am sure, but the VAROs look for key words in medical opinions and they might not get it.

The full gamit on how IMOs should be prepared is in our IMO forum.

[oldman273]

Yes thanks I would have post more but the SOC I had written about a few days ago was just sent out Friday. I should know something next week. As I have been at this for 13 years now I am not hopeful. As to the previous "Validated previous Diagnosis" Yes they all were related to my claim for a service connected injury.

I am sure that a lot of veterans just throw their hands up in the air when the VA tells them that since they did not claim an injury within a year I think the VA uses that as a blanket policy. Reason being about 5 years after I got out I put in a claim for hypertension much like my knees also documented injury like my Hypertension I got 10% for that wish I did not have it but it was a condition that occurred on active duty. I will post on what comes out I hope I am wrong but after all of the no no no answers from the VA a yes would be nice to hear. I am open to anyone who has had their knees replaced in a PM. I am tired of these old knees. Thanks

[broncovet]

What happened here is an effective demonstration of how/why the "provisional" rating system for claims over 2 years old is not working. Yours is obviously way, way older than 2 years old, so what do they do? They punt it to San Jaun. This shows the provisional rating system only apply's in circumstances where the VA wants it to apply. It should apply to all claims over 2 years old, regardless if they were a remand or not. Punting this to San Juan is just another inexcusable delay tactic. I think you should consider a Writ of Mandamus.

[oldman273]

Hello and thanks I have to admit I had to goggle the writ to explain it to me. I am not an expert in legal issues. I think the forum has taught many of you to almost paralegal status and that is a sad thing. As for my claim I am not that excited about the review process as I have this appeal which goes back to 2001 and 2 other claims which go back to 2009. I had just started writing letters and demanding where my claim was as the canned responses from the VA were getting on my nerves.

My question now before I actually see the response or latest answer to my response from the SOC is how do I respond to their opinion on my last rebuttal? Does the remanded appeal go back to the BVA for a review or am I able to again respond to their opinion? I know I have not seen their opinion but with the track record the land of No has a definite pattern. If I am wrong I will post the response.

I did not want to put the lengthy text of the courts remand but to me the VA was not doing what the court of Veterans Appeals told them to do with expediting my remanded claim. From start of the remand to the latest level my remanded claim took over 3 years to get ready to head back to the Board of Veterans appeals.

If I am to believe what I was told the remand now goes back to the BVA for a judge to look at all evidence and render a judgment. Am I holding my breath? No because with everything I have went through I took some advice from other members sage advice I am heading out to go read in the back yard with a book. If I allow myself to get all worked up I may wind up with one of those toe tags it is just not worth it to get all upset about things you can not control. I am not saying give up I am saying take a breather and post and see if anyone has any ideas. Adios and will advise when I get their latest work. Have a great fathers day and this is just my opinion others in the group may have more ridding on the claims than I do.