Waiver Of Bva Consideration

[GatorNavy]

FL 14-02 Automatic Waiver.pdf

Interim guidance for implementation

[carlie]

Times they are changin'.

Please read the PDF I supplied which is about the waiver of initial consideration by the BVA. It isn't well publicized for some reason. I ran across it by accident.I knew it was eventually coming though, as the language was in the Camp Lejuene Act. Next time I find something that I don't see here that may be an update I will contact you or Carlie. That way you can read it and understand it and then decide if it should be before the public. Mea Culpa!

I think your understanding of this is not correct.

I do not read anywhere at all in this pdf, that this is a Waiver of BVA Consideration.

I do read that it is allows for an Automatic Waiver Of the AOJ's Review Of New Evidence.

My understanding of this pdf is that if a SSOC has been sent to the claimant, a form 9

has been submitted, (a substantial appeal has been submitted), the claimant sends in additional evidence,

the claim is supposed to be certified and sent to the board

WITHOUT the AOJ's need to consider this additional evidence and that a

Waiver of RO Consideration will no longer be needed, as it will automatically be waived at this point.

May 2, 2014

Director (00/21) In Reply Refer to: 211

All VA Regional Offices and Centers Fast Letter: 14-02

SUBJ: Automatic Waiver of Agency of Original Jurisdiction Review of New Evidence

Purpose

This fast letter implements section 501 of the Honoring America’s Veterans and Caring for

Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, which will enhance

efficiency in the appeals process.

Section 501 amends 38 U.S.C. § 7105 by adding new paragraph (e), under which

evidence submitted by the appellant or appellant’s representative at the time of or after receipt of the Substantive Appeal

is subject to initial review by the Board.

While the scope of the legislative language of section 501 is

currently under review, this fast letter implements preliminary guidance. This fast letter

also clarifies procedures for transferring jurisdiction of an appeal to the Board.

Background

Section 7105 affords claimants the opportunity to appeal final Agency of Original

Jurisdiction (AOJ) decisions to the Board of Veterans’ Appeals (Board); however, prior to

the amendment that added paragraph (e), the statute precluded the Board from considering

evidence submitted in connection with an appeal unless the appellant waived the right to

AOJ consideration of the evidence in the first instance.

Congress determined that the former law resulted in processes and procedures that significantly delayed appeals and

unnecessarily expended VA resources, as AOJs were required to repeatedly issue Supplemental Statements of the Case

(SSOCs) to address new evidence and allow appellants an additional 30 days to respond.

Section 7105(e) provides that, the Board will initially review any evidence that the

appellant or his/her representative submits with or after the filing of a Substantive Appeal

received on or after February 2, 2013.

A Substantive Appeal consists of a properly completed VA Form 9, Appeal to Board of Veterans’ Appeals, or correspondence

containing the necessary information to complete an appeal.

The statute still allows an appellant or his/her representative to obtain initial AOJ review if a written request is

submitted with the evidence.

[Berta]

Carlie is correctly interpreting this regulation.

GatorNavy stated:

"Please read the PDF I supplied which is about the waiver of initial consideration by the BVA."

I think I mentioned in the past here in this topic that there is NO such thing as a waiver for initial BVA consideration.

Nor for any subsequent BVA consideration.

Why would any claimant want to waive BVA consideration.???....the BVA is often the only VA entity that actually reads our stuff and the only VA entity who actually applies the law properly most of the time..

Personally, after years of experiencing the lack of ability of anyone at my VARO to consider all of my evidence, for most of the claims I have had there, I would not hesitate to waive AOJ consideration,instead of trying to get them to make it right by

forcing issuance of an SSOC.(which can be a copy and paste job of the original SOC they issued anyhow.)

When I first came to hadit many years ago I used to believe it was best to rebutt any negative decision at the RO level and keep the claim there as long as it takes to get it right, because BVA adds more time to a claim.

BUT I certainly feel I was wrong ( although others have had success at the RO level,) because I would rather be waiting for a BVA decision that will consider ALL of my evidence, rather than wait for another RO denial, based on RO not reading my evidence.

The backlog itself has caused many more errors in VARO decisions, as they try to keep up to some unrealistic quota and give our evidence mere glances sometimes without a thorough reading of it.

If a claimant has a lawyer or vet rep or the claimant themselves is willing to fight over a SOC (and /or willing to raise violation of 38 CFR 4.6 if applicable,) during the NOD timeframe, they might sure get a better and faster VARO decision.

Maybe.

If a claimant gets to the point that they want to draw their RO out by rebutting a SOC (hoping for a favorable SSOC decision or DRO decision, I feel they need a lawyer at that point or at least a vet rep willing to help them support their claim.

Often a personal hearing can turn the tide as well. But that too takes time.

I have a NOD that has been pending for over 2 years.I have already determined that the 'specialist' they say this claim is with ,

might have no special ability to understand either the regs or the evidence I sent to them.

In many ways I cant wait for RO to deny the claim because I know I will succeed at the BVA level.

Also I raised a legal point by filing ,as well ,for an NOD extension,although my NOD was timely.

I knew that too might hold up my claim and maybe it is the only reason the claim seems stuck in limbo.

They have to address the extension request.(unless they award the claim)

I have a copy of a Waiver of further RO consideration, that Carlie posted here long ago.

I will whip that out in a heartbeat ,and send it in, if I don't like the results if my pending claim.

[GatorNavy]

The statute still allows an appellant or his/her representative to obtain initial AOJ review if a written request is

submitted with the evidence.

which is (drumroll please) a waiver of initial BVA consideration.

No Ebennies has not been updated yet....which is a worthless piece of garbage anyway in my book.

Personally I like the way it was and of all of the needed changes to speed things up this falls to the bottom. But if yawl are wonderin' why you never received a response after you sent in that shiny new IMO, it's because it wasn't reviewed by the AOJ and is just sitting in the the C-file waiting for BVA adjudication. Unless of course, the waiver was submitted with your IMO.

Edited October 1, 2014 by GatorNavy

[carlie]

The statute still allows an appellant or his/her representative to obtain initial AOJ review if a written request is

submitted with the evidence.

which is (drumroll please) a waiver of initial BVA consideration.

Gator- for the life of me I just can not understand your complicating an issue that is very clear.

There is no waiver of BVA consideration.

If one has submitted a substantive appeal and they want the VARO to consider additional evidence that was

submitted after the substantial appeal was filed, they submit a request for the VARO's consideration, in writing.

If they do not submit a request for that, then VARO consideration of that additional evidence will automatically

be waived - without having to submit a waiver of VARO consideration of the additional evidence and it will be

under the BVA's jurisdiction for consideration.

This change is being made to simplify things, save time and cut back on remands - due to the prior rule stating

that if BVA has no waiver of record for VARO consideration of the additional evidence then, the claim must be remanded

for VARO consideration of the additional evidence.

carlie

No Ebennies has not been updated yet....which is a worthless piece of garbage anyway in my book.

Personally I like the way it was and of all of the needed changes to speed things up this falls to the bottom. But if yawl are wonderin' why you never received a response after you sent in that shiny new IMO, it's because it wasn't reviewed by the AOJ and is just sitting in the the C-file waiting for BVA adjudication. Unless of course, the waiver was submitted with your IMO.

[GatorNavy]

"such evidence shall be subject to initial review by the Board unless the claimant or the claimant’s representative, as the case may be, requests in writing that the agency of original jurisdiction initially review such evidence."

I think we are getting bogged down with semantics. If evidence is automatically subject to initial review (who sees it first) by the board then a waiver of initial review by the board authorizes the AOJ to adjudicate the newly submitted evidence.

In one of my claims I obtained an airtight well written IMO to counter the lousy, inexperienced C&P exam for service connection and submitted that to the AOJ in the hopes that they would see the light and grant. It would have been at least in equipoise and the AOJ knew that, so they had the prior C&P examiner do an IMO to counter mine. That's a CUE in itself because the AOJ can't go out and get a negative opinion against a Vet that has positive evidence. The AOJ had their chance with the negative C&P exam. So I obtained another IMO from a different source and waived it for initial review before the board. That is before the NSOs had this part of the law changed. There can be advantages to go either way.

[carlie]

"such evidence shall be subject to initial review by the Board unless the claimant or the claimant’s representative, as the case may be, requests in writing that the agency of original jurisdiction initially review such evidence."

I think we are getting bogged down with semantics. If evidence is automatically subject to initial review (who sees it first) by the board then a waiver of initial review by the board authorizes the AOJ to adjudicate the newly submitted evidence.

In one of my claims I obtained an airtight well written IMO to counter the lousy, inexperienced C&P exam for service connection and submitted that to the AOJ in the hopes that they would see the light and grant. It would have been at least in equipoise and the AOJ knew that, so they had the prior C&P examiner do an IMO to counter mine. That's a CUE in itself because the AOJ can't go out and get a negative opinion against a Vet that has positive evidence. The AOJ had their chance with the negative C&P exam. So I obtained another IMO from a different source and waived it for initial review before the board. That is before the NSOs had this part of the law changed. There can be advantages to go either way.

Still, there is no such thing as a Waiver of BVA consideration.

I understand your point - for your situation.

After spending decades in appeals, remands and the AMC, I continue to feel this

change is best for all claimants.

It cuts a step out and saves the time of unnecessary remands.

Regarding your quote above, the part I put in red, this is not necessarily an actual CUE

and without knowing absolutely everything it might not even be enough, to put the evidence

into relative equipoise for application of the BOD.

Most claimant's that have been continually denied at the VARO level are ready to get out

of there and get on to the BVA, where claims are viewed a bit more thoroughly and the

laws, regs and instructions are not so twisted and convoluted.

jmho