Viewing Specific Evidence Listed In Statement Of The Case (Soc)

[Notorious Kelly]

Hi,

It's tough deciding whether to file Form 9 to appeal when I am not sure exactly what evidence was cited and conclusions made about that evidence.

The SOC has a laundry list of material but no specific citations, just general statements.

How can I file a Form 9 stating why I am appealing when I don't know what the case is? Is there a way to view other peperwork used by the VA for my case?

Thanks!

[Notorious Kelly]

Holy cow!

The VA may not give you the real gouge on your claim if it might "provoke feelings of hostility,...."

M21-1MRI_5_secD

Do not include matters in an SOC of a sensitive nature that would be injurious to the physical or mental health of the appellant...discussions of evidence in a way that might provoke feelings of hostility, resentment, or rejection on the part of the appellant or his/her family.

All matters can be disclosed to the appellant’s designated representative unless disclosure to the representative would be as harmful as if made to the appellant. Therefore, in some cases, two different versions of the SOC may be prepared when it is permissible to furnish full information to the representative.

http://www.benefits.va.gov/WARMS/docs/admin21/m21_1/mr/part1/ch05/M21-1MRI_5_secD.doc

How the f&*^ am i supposed to prepare my legal case when the VA is afraid to cite specific details.

This just gets worse...........

[63SIERRA]

Ive noticed in even the initial denials they put multiple reasons as to why you MAY have been denied, that way you cant pin them down on anything. They sure seem to be trying every trick in the book to keep from being cornered on any statements that will backfire on them. The more educated vets become in the process , the more the va seems to elevate thier trickery and deception. Generalization of reasons and basis is just a way to NOT tell you why they denied you, so you cant levee proof in your defense as to why they wrongfully denied you , because they havent actually told you why. Not only are they doing that, they are also not telling veterans what they must do to win thier claims either. C&P exams are being " thrown" by the examiners in order to deny the veteran, because they know most young vets dont have a pot to piss in or a window to throw it out of, much less money for an Imo.

It pathetic. Its sickening, and its getting worse.

[lotzaspotz]

Hi,

It's tough deciding whether to file Form 9 to appeal when I am not sure exactly what evidence was cited and conclusions made about that evidence.

The SOC has a laundry list of material but no specific citations, just general statements.

How can I file a Form 9 stating why I am appealing when I don't know what the case is? Is there a way to view other peperwork used by the VA for my case?

Thanks!

The evidence cited should be specifically listed under "Evidence" in your SOC. If it's not there, it wasn't considered. That evidence should also be discussed in the SOC. If it was listed as evidence, but never discussed, it wasn't considered. If any of what I just said is applicable, you can start with that as the basis of your Board appeal. So appeal it, you can always add evidence or a statement up until the day the Board hears the appeal.

[Notorious Kelly]

Thanks for the replies.

The problem is, the SOC mentions "inconsistencies' with no mention of exactly what they are.

Like 63SIERRA said, that keeps them from being cornered when I prove it wrong. But I have to know specifically what they're talking about.

Evidence has things like "Treatment Notes VAMC June 2025-Aug-2025", This report, That Report, but no specific evidence- how do they get away with this?!?

Imagine going to a US court and saying, "We found inconsistencies so he was denied".

What is the FIRST thing a judge is going to ask?

I need, "On June 13, 2025 you said you had back pain from being hit by a missile. The police report dated June 14, 2025 says no missile was involved'.

It's impossible to fight/prepare a rational defense without specific evidence listed.

Think I'll take your advice, lotz, and just go BVA.

Thanks!

[lotzaspotz]

Yes, get it out of the RO and on to the Board. The lack of specificity on those "inconsistencies" will probably lead to a Board remand, and those specifics at that time will be nailed down.

Do you have copies of the reports the RO cited?

I've found from personal experience that the RO often states the C & P examination yielded a different conclusion than what was actually printed in the C & P report. The RO sometimes "embellishes" in directions that end up denying the veteran the benefit of the doubt in situations where relative equipoise exists. I'm thinking that the same could be said for VA treatment records/reports. That's why I asked if you have copies of those reports.

[Gastone]

Notorious K: Your claim/claims denial had to be explicit in regards to what and why the VA rater decided against your claim. I've had approx. 6 claims submitted since 08/08 with multiple issues on all but 1. When awards or denials were issued, the rater, to best of my recollection gave a reason. My advice based on my own experience is to file your NOD stating the date of the VA Claims Denial letter. You don't have to list each claimed issue that was denied on your initial NOD. Your just "Officially" putting the VA on notice of your intent to appeal their decision/decisions regarding awards or denials list in your recent claims decision. This original NOD is the (1st) step and should be filed sooner rather than later. You can do it yourself or use a "Verified Competent" VSO that you trust. If your at the 11th month after the denial letter, FILE the NOD yourself before the "Denial" becomes final. Send it US Mail Cert-Return Receipt. Based on my VA Claims experience, 2 NODs, 1 "Informal Conference request" and recent DRO Personal Informal Hearing 06/27/14, I put "Requesting DRO Personal Hearing" on all NOD related correspondence.

You had to have had a C&P Exam, get a copy from your VAH medical records. The Dr had to fill out a VA DBQ regarding your claimed issues. Any outside medical DX's that you offered would be used in conjunction to rate your claim. Check your claimed issues in the 38 CFR 4 rating guide.

I waited over (3) years for my NOD Hearing due to waiting till the 11th month to file. The current time frame seems to be 21/2 years for DRO Hearing 3 to 4yrs for BVA Court.

Good Luck

Semper Fi

Gastone

[Pete53]

They are actually required to tell you what you need to prove your case. Its been a while for me but they did that when I was dealing with them in the 90's.

Good Luck.

You might consider going to VARO and ask to speak to a Counsellor. I found them quite helpful

[Notorious Kelly]

Yes, Lots- I have a c-file request in and the RO did write up the C&P conclusion to mean something different.

Yes, Gastone, they gave reasons but they are worded so generally that no regular court would acdept them as evidence. I don't know how the VA gets away with this. I appreciate the details of your experience.

Hey Pete - hope you and your doggies are well!

[broncovet]

For an effective appeal, you need to get a copy of the "RBA"...Record before the Agency. It takes effort to get it, but an attorney can get it for you. You MIGHT be able to get the RBA from your VSO, but good luck with that. If you are pro se, you can try a freedom of information request, but understand the VA may/may not honor those.

The RBA is a prime reason Attorneys do so much better than VSO's...you see, if its not in the RBA, the evidence wont be considered. Who does the RBA? You guessed it..the VA..and they put in the RBA what they feel like, and that which supports their position to deny you.

You can submit "new and material evidence" to the BVA, but, once the board makes a decision the record is sealed and the CAVC will rule on whats in the RBA. However, a Board "remand" means that the Veteran can submit new evidence. If a denial is appealed to the CAVC, there have to be special circumstances for the CAVC to overturn a Vets case because of missing information. One problem is the Veteran often NEVER gets the RBA and he has to guess what it contains...and those guesses are usually wrong.

This is an advantage of a BVA hearing. At the hearing, you can review the RBA, and say, "Gee...how come you did not have THIS C and P exam which is favorable to the VEt?"....and then give em a copy.

By manipulating the RBA the VA can often deny and the Vet often never knows why. They simply omit favorable evidence.

This is why its often good to submit your evidence directly to the BVA and NOT to the RO. If you submit it to the RO, it may not get past the gatekeeper, while submitting it to the board bypasses this RO gatekeeper intent on denying you.

Source: I appealed my board decision (to the CAVC) through an attorney. He gave me a copy of the RBA, so, I know what it contains. I found MUCHO favorable evidence missing from the RBA. My attorney did not "create" the RBA..that was done by the VA. There are special rules of submitting new and material evidence...not the least is which the VA decides if the evidence I submitted is "new" and "material". If the VA considers it redundandant, it wont pass the N and M test. Or, the VA may call it "immaterial" because, in a nutshell, it has nothing to do with their agenda of denying you.

Edited September 1, 2014 by broncovet (see edit history)

[Fat]

Good information..................

[Notorious Kelly]

Wow, broncovet- that may be they key I'm looking for (if I can get it)..Absurd we wouldn't have access to the RBA BEFORE going to a hearing.

Thanks!

Okay - I've had some dialogue with attorney Chris Attig (bought the ebooks and really like his clear way of explaining things).

Just did a search and found this from his site: http://www.attiglawfirm.com/move/veterans-benefits-what-on-earth-is-the-rba/

Sounds like the RBA is sent when going to CAVC, after BVA.

I wonder if I can get one before this or if it exists yet?

Will FOIA work or will an attorney have to assist?

Edited September 1, 2014 by Notorious Kelly (see edit history)

[Gastone]

NK: Do some research on Regs regarding "FOIA" claims. When I hand delivered a request to the Det RO to View and get a complete copy of my c-file 10 09/12, on a VA Statement in Support of Claim, I had no idea that I was filing an official "FOIA" claim. Later it showed up as a pending "FOIA" claim on my E-Ben site. I never followed up and it took about 15 months to finally receive via UPS 01/14. It only had records thru 12/2012. No notes from rating dept or DBQ's submitted in 2012 or 2013.

My late 2013 research indicates the when a "FOIA" claim for production of VA records is received, Courts hold the VA to a specific response time. I had missed all the opportunities to do anything about the VA's failure to produce the requested documents. Like everything else, "the squeaky wheel gets the grease." I didn't squeak and the VA took their time to produce an incomplete copy of my C-File. Note: there were (3) pages from VA Vocational Rehab that belonged to another Vet that had seen my same VRC in 2012.

Semper Fi

Gastone

[Former Member]

I think many here gave good advise and I might be repeating some of it...

They certainly should have enclosed an Evidence list.

And if probative evidence was Not listed or considered than that is a good argument for the appeal.

It is best to tell them exactly why you believe they are wrong.

For example, if it is regarding a rating that you think should be higher, tell them how your evidence (refer to specifics in the med recs that they might have had but overlooked) and then cite the proper rating ,based on your medical evidence, per the VA SRD.

If the NOD was filed on a denial due to " SMRs were silent' ...a vet needs to see their own SMRs because sometimes that is plain old BS.
On the other hand older hand written SMRs can be difficult to read and contain acronyms and they should be interpreted by the vet on appeal on the I-9 if possible with one of the many medical acronym sites because VA probably skims over a lot of med acronyms.

Vets can also offer good medical treatises to support their contentions but usually VA overlooks that too and yet ,if a real doctor uses the same type of treatise in a strong IMO , then it would have merit for VA, if they give a strong medical rationale as well.

VA is googling these days to do C & P exams, picking out probably the worse treatise or study they can find,to go against some claims, when many other treatises and studies on the net might well support the claim..

NVLSP advises adding this to the I-9:.

"I take exception to and preserve for appeal ALL errors the VARO may have made or the Board hereafter might could make in deciding this appeal. This includes all legal errors, all factual errors, failure to follow M21-1,all due process errors and any failures to discharge the duty to assist as violation of basic VA laws and regulations within 38 USCS and 38 CFR."

And it pays to read, re read and then read a few times more Everything the VA says.

And get a copy of the C & P exam because they know how to manipulate those results sometimes, to our detriment.

Point out any errors they made in the C & P exam and if you believe the results were too speculative, tell them why,.

[Notorious Kelly]

Thanks Gastone & Berta!

The evidence list is so broad and the statements in case so general as to not carry weight as a legal case in any court I could imagine. The VA only gets away with this because they believe they hold all the cards.

The C&P examiner mentioned a summary in the C-file (which appeared to be a stack of blue papers). Can I get a copy of that? Is there a name for it?

This process is a travesty and must be changed.

[Vync]

I'm no lawyer, but this all sounds like it might violate the 5th or 14th amendments by violating our rights to due process. It also sounds like a conspiracy. The VA is deliberately concealing information that could be beneficial to our legal claims. I wonder if this could be a good basis for a class action lawsuit.

There is an old saying in the financial realm, "If you do not disclose, you cannot impose."

What I learned in this topic explains so much. This makes me want to request a copy of all RBA information just to see how much and how often they screwed me over. Although I requested my C-file some time ago, I don't recall ever seeing anything about an RBA.

On the other hand, I do realize why the VA might have implemented a policy like this. After watching the movie Article 99 and seeing the increase in security at some VA facilities, they probably justify it by saying they are concerned about people going ballistic. But to even have a policy that excludes VSO's, wow...

Edited September 4, 2014 by Vync (see edit history)

[broncovet]

My attorney sent me a CD, which included the RBA. I spent some time reading it and was shocked...both by what was IN the RBA and what was NOT in the RBA.

There was much, much less medical information than what I thought in the RBA. I was also suprised NOT to see old VARO decisions in the RBA..I assumed they had the old decisions...but that appears to not be the case.

I believe my RBA had about 30% of my evidence. That is, my files have about 3 times as much evidence. One critical document that was "missing" in the RBA...my 2008 "request for special handling" (due to shreded evidence). They shredded my special handling request because they shredded earlier documents!!!! Unbeleivable.

The RBA did have some stuff I did not have, but most of that was irrelevant. I was just amazed at how incomplete and disorganized the RBA was.

Frankly if I was the judge I could not make heads or tails of it either, at least not based on the RBA. And, thats what its based on.

Berta, as usual, contributed good advice.

Perhaps she could shed light on how a pro se Vet can get the RBA...other than at a BVA hearing, and you can just look at it. Its no wonder VA decisions are so bad, in light of the simply chaotic condition of the RBA.

I think the RBA is so critical, it may be worth a trip to DC(to BVA) to look at it, and provide copies of missing evidence. If you have been over your case like I have, then you can quickly look at the file and tell its missing stuff.

It seems like the RBA is one of those "gotcha's" where the VA can predetermine a denial. Its easy. Just "leave out" a favorable c and p exam, and the VA will deny based on the nexus being absent. Then its 4 more years for you to get back to the BVA again.

I do think what we thought was the VA being unable to read, is probably just a manipulation of the RBA.

The fact that the VA controls the RBA is telling.

If you had a border dispute with your neighbor, would you hand him your evidence and ask him to make sure the court had a copy? Hardly..he is your adversary, and would not be at all interested in making sure the court got all your evidence.

In a similar way, we are supposed to trust the VA, that they are non adversarial, and they will keep our RBA complete and organized...its no wonder there are soo many erroneous denials. Those denials really happened before the case was even sent to the Board...all the VA needs to do is just fail to include your favorable evidence..and poof..you are denied again.

[Notorious Kelly]

If I understand what i just read from Chirs Attig correctly, "You are not entailed to any “discovery” of the VA’s
claims against you." then the VA really DOES hold all the cards.

How are we gonna tear down that curtain from The Wizard?

[broncovet]

Well, one way to tear down the wizard of VA secrecy, is to request a hearing..where the RBA will be in front of you.

Another way is to submit your evidence (appeal) direct to the board...and bypass the RO gatekeepers who will likely throw away a good percent of your evidence when submitting this to BVA to keep their denial rate high, that is, to defeat all the dog gone appeals which reverse their denials.

I think they have a name for all this:

"Dirty Dancing".

[Former Member]

Chris Attig is right... this has been a well known fact for decades.....that we , as claimants, have no discovery rights at all.

You add that to the fact that VA C & P docs are paid by the VA (a conflict of interest) and none of this would ever be acceptable if we could file claims in a civil court.

But it is what it is.

I agree with Broncovet.....the RBA will be at the hearing...but who has time to go through all that at a VA hearing?

After VA gets done with my pending claim I am going to ask under Privacy Act, 5, USC 552, for a CD of my RBA for the last 20 years.

But then again I geared that claim for the BVA because,after 20 of dealing with my RO, I do not believe they will read my evidence at all yet the BVA sure will.

I made sure the BVA had copies from me of my most probative evidence for my DMII AO death claim.

I was sick and tired of knowing my RO (and I testified to this in H VAC testimony during Shreddergate) that much of my evidence for many of my claims had been lost, or destroyed by shredding.
I feel like I know my RO's MF personally ( MF-the Mysterious Force who removes the good stuff from our C files and sometimes puts it back in AFTER they deny the claim and don't list it as Evidence.)

Nice reminder Vync...the movie "Article 99" ! That movie years ago sure put a pulse on the VA that non vets, who saw it, probably never considered before.

At the time of the movie, it seemed like an exaggeration at first, but time has proven VA has gotten worse that what this movie depicted.

And "Unnatural Causes" , a movie made in 1986, comes to my mind too----Maude Victors , a VBA employee (true story) played by Patti LaBelle, dealing with John Ritter as a very ill Vietnam veteran,is the first person in the USA to realize that Agent Orange might have a link to the disabilities Vietnam vets were getting.

If she had not been so aggressive, we might not have Nehmer or AO presumptyives today at all.

I read that VA got so fed up with her because she kept researching AO that they reduced her VA office to a broom closet. Not much different than the way the VA treated the Phoenix whistleblowers.

FOIA... dont forget that the 'response' time for the entity you FOIA, only regards a 'response" from them to the request, usually within 20 days I think.

I have had 2 responses recently in writing from the FBI for example on a FOIA.

I have to respond to their response today, so my response time deadline to them doesn't run out.

For my VA Central FOIA, Margaret Peake (FOIA Officer VA Central )called me up a few days after I filed it and we discussed what I asked for by phone and she sent it very quickly after that.

Other FOIAs can take longer.......to get the stuff or to get their records request denial ,which they must give good cause for if denied.and you can appeal that.

I have added to my FOIAs lately on a specific matter, that I request expedited treatment of the request due to the public's right to know, caused by the Phoenix VA situation.

[Notorious Kelly]

Not to sound like a commercial for Chris Attig's books but he has templates in there for FOIA and FOIA appeals for C&P exams and for C-files that I'm using.