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!

[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

[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

[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