Va Appeal To Bva 5 Years Old Without Progress

[jeffperry1134]

This is getting almost comical. I have been in appeals to the BVA since 2010 and they still have not even sent my stuff to the BVA yet. I recently e-mailed Bob McDonald and got a response that they would look into it last week. When I send in an inquiry I get the exact generic same answer each time. Is there any specific legal recourse that I can take to see exactly what is going on?

[Chuck75]

One of the purposes of a bureaucratic process is to minimize personal responsibility and accountability for actions.

It's likely that "the process" is bouncing the claim around, and no one wants to take responsibility for a decision that might be questionable by others.

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[TiredCoastie]

there is a reason this claim is getting put to the side.

One of the purposes of a bureaucratic process is to minimize personal responsibility and accountability for actions.

It's likely that "the process" is bouncing the claim around, and no one wants to take responsibility for a decision that might be questionable by others.

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Absolutely. Someone needs to make a decision.

[GatorNavy]

Once you file a form 9 the RO is supposed to enter the appeal into VACOLS and that system will spit out a docket number. Within the docket number is your date of appeal to the BVA. Get that docket number and hold their feet to the fire.

[FormerMember]

Well, not exactly. The RO is tasked with making sure everything is in order and then issues the Form 8 certifying it as ready. Only then is it entered into VACOLS. The BVA, however, issues the docket number after it arrives in DC physically. If you ask for a BVA Board hearing, the certification doesn't occur until after the hearing (one year). Any submission of evidence w/ a Form 9, unless a waiver of review in the first instance is filed with it, provokes another year of waiting for someone to take another gander at it before they issue a SSOC. Even then it can languish for a while ( a year) until someone gets around to the Form 8. Most do not realize that VA is fond of taking TDIU appeals and shipping them to DC without the SSI/SSD records which they know are required to be included. The BVA promptly (one year) remands it back to the RO for the SSI info (one year). You can see how it takes a decade to get one of these done if you are not proactive and assemble the evidence yourself. Never assume VA will include the SSI stuff, Never.

This is why I strongly disagree with hanging around the VARO waiting for justice if it is a complicated claim. ROs are loathe to take the responsibility. Getting it up to the BVA is paramount for difficult claims and having everything in front of the VLJ when it gets there is even more important. Putting SSI records in the search bar for 2014 BVA appeals will generate thousands of IU cases remanded for lack of the SS records. VSOs seem to be oblivious to this requirement or at least fuzzy on what is needed before you launch to DC. Considering they have the right to look at your C-file, it seems elementary to ascertain the documents are on board before they launch it. J1VO

[GatorNavy]

25. Docketing Substantive Appeals

Introduction

This topic contains information on docketing substantive appeals, including

• adding appeals to BVA’s docket, and
• notification by BVA.

Change Date

August 4, 2009

a. Adding Appeals to BVA’s Docket

Add appeals to the Board of Veterans’ Appeals (BVA) docket by updating the Veterans Appeal Control and Locator System (VACOLS)

• immediately following the receipt of VA Form 9, Substantive Appeal, at the regional office (RO), and
• without requiring BVA to physically take possession of the related claims folder.

Notes:

• When the RO enters the date of receipt of the VA Form 9 into VACOLS, VACOLS will
• reserve a slot on the docket based on the date entered, and
• assign the Docket Number when BVA receives the appeal.
• The related claims folder will remain at the RO until it is certified as ready for BVA review. Once the claims folder is certified, it will be transferred to BVA immediately, unless the folder must remain at the RO because a BVA Travel Board or videoconference hearing has been scheduled.

Reference: For more information on tracking appeals in VACOLS, see the VACOLS User Guide.

[FormerMember]

It appears they updated it in 2009 but the change is minor. From personal experience, I know the addition of N&M E at the time of the filing of the Form 9 automatically provokes a de novo review. If that is the case, you cannot ask for a docket number at the RO. The obvious comes to mind. What if the N&M E results in a grant? You then have the unneeded appeal on the VACOLS books.

"Add appeals to the Board of Veterans’ Appeals (BVA) docket by updating the Veterans Appeal Control and Locator System (VACOLS)" .

This clearly states that the denied claim shall be inserted into VACOLS but does not allow for a docket number to be assigned until receipt by the BVA. Putting it in VACOLS assures you it will be given a date so it is heard in proper sequence but no docket #.

Here's 38 CFR 19.35 & 19.36

§ 19.35 Certification of appeals.

Following receipt of a timely Substantive Appeal, the agency of original jurisdiction will certify the case to the Board of Veterans' Appeals. Certification is accomplished by the completion of VA Form 8, “Certification of Appeal.” The certification is used for administrative purposes and does not serve to either confer or deprive the Board of Veterans' Appeals of jurisdiction over an issue.

§ 19.36 Notification of certification of appeal and transfer of appellate record.

When an appeal is certified to the Board of Veterans' Appeals for appellate review and the appellate record is transferred to the Board, the appellant and his or her representative, if any, will be notified in writing of the certification and transfer and of the time limit for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence described in Rule of Practice 1304 (§ 20.1304 of this chapter).

§ 19.37 Consideration of additional evidence received by the agency of original jurisdiction after an appeal has been initiated.

(a) Evidence received prior to transfer of records to Board of Veterans' Appeals. Evidence received by the agency of original jurisdiction prior to transfer of the records to the Board of Veterans' Appeals after an appeal has been initiated (including evidence received after certification has been completed) will be referred to the appropriate rating or authorization activity for review and disposition. If the Statement of the Case and any prior Supplemental Statements of the Case were prepared before the receipt of the additional evidence, a Supplemental Statement of the Case will be furnished to the appellant and his or her representative as provided in § 19.31of this part, unless the additional evidence received duplicates evidence previously of record which was discussed in the Statement of the Case or a prior Supplemental Statement of the Case or the additional evidence is not relevant to the issue, or issues, on appeal.

(b) Evidence received after transfer of records to the Board of Veterans' Appeals. Additional evidence received by the agency of original jurisdiction after the records have been transferred to the Board of Veterans' Appeals for appellate consideration will be forwarded to the Board if it has a bearing on the appellate issue or issues. The Board will then determine what action is required with respect to the additional evidence.