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?

[jeffperry1134]

I will let you all know what my representative translates with this paperwork but to me it looks like they are trying to get out of paying my retroactive pay between 2007-2011. I figure if that is the case I can appeal that and send in my 2007 psych eval and therapist information. She already said that she would give me a letter supporting the 70% rating at that time.

[Fat]

Somebody please clarify.

I thought once your appeal is at the BVA, any additional submitted information directly to the BVA would mean a remand back to your home states regional office.

Right? Wrong?

[TiredCoastie]

Somebody please clarify.

I thought once your appeal is at the BVA, any additional submitted information directly to the BVA would mean a remand back to your home states regional office.

Right? Wrong?

Not quite, Fat. You may need to submit a waiver to keep your file and appeal from being sent back to the RO for a relook if your submit something new. Somehow I have this vague memory of getting a document with something from the RO that actually said the opposite as some sort of time saving change. It said that you would have to specifically ask the BVA to send everything back to the RO if you submitted new evidence and if you didn't specifically ask, they wouldn't send it back. Either way, that would be for a readjudication at the RO level but would not be a formal "remand." Not being able to put my hands on that document from the RO this minute, I recommend submitting a waiver statement that says that you do not want your file to go back to the RO, unless that's something you feel would be somehow beneficial. If the RO couldn't get it right and now it's in DC, best to stay there where you have the high percentage probability of success. Hopefully that's clearer than mud.

Edited March 2, 2015 by TiredCoastie

[VetlawUS]

Here's the thing about "BVA Appeals" - the game is in the process.

To get a BVA Hearing, you need to be on the BVA Docket.

To get on the BVA Docket, the VA Regional Office needs to "Certify" your appeal to the BVA

Who "Certifies" your appeal to the BVA?

The VA Regional Office. They cannot by law certify your case without a NOD, a SOC, and a Substantive Appeal (can/should be on VA Form 9, but doesn't have to be).

The BIGGEST delays in certifying appeals are caused by 2 things:

1) The VARO sits on the case after receiving the substantive appeal.

2) The Vet keeps filing "reconsideration requests" or new NODs, splitting the claim into multiple tracks. The VAROs almost always take an "all-or-nothing" approach to certifying appeals to the BVA.

How do you fix these problems?

To Fix #1: USE the DRO....if they aren't going to grant your claim/appeal....ask them to quickly issue a SOC, tell them you'll immediately return the VA9 (Substantive Appeal), and ask if they will IMMEDIATELY certify your appeal to the BVA. Most DROs LOVE this...it gives them a s**t-ton of work credits for taking up to 3 actions on a case in less than a week. Read more here on the Veterans Law Blog: 3 Ways to Win at the DRO Hearing.

To Fix #2: Think through the "big picture" of your appeal....sometimes it is worth it to let the DRO deny one claim if it means that it - and the bigger claims - will get certified to the BVA quicker. I see a TON of Veterans that will spend years bickering with the VA about C&P exams for a tinnitus claim that will get them 10%...meanwhile, the Sleep Apnea claim that will get them 50% sits...waiting for the tinnitus bickering to stop so it can get certified to the BVA.

Do whatever you can to avoid having a single claim for SC of multiple conditions split into multiple appeal tracks. This is a hard concept to explain....I'm going to try to tackle it on the Veterans Law Blog soon.

Chris

[TiredCoastie]

I will let you all know what my representative translates with this paperwork but to me it looks like they are trying to get out of paying my retroactive pay between 2007-2011. I figure if that is the case I can appeal that and send in my 2007 psych eval and therapist information. She already said that she would give me a letter supporting the 70% rating at that time.

Sounds like you're ahead of the game! I think your plan is the right answer. Hopefully your VSO will play along and do the work. If not, it's time to either go it alone or find a good attorney.

[TiredCoastie]

Here's the thing about "BVA Appeals" - the game is in the process.

To get a BVA Hearing, you need to be on the BVA Docket.

To get on the BVA Docket, the VA Regional Office needs to "Certify" your appeal to the BVA

Who "Certifies" your appeal to the BVA?

The VA Regional Office. They cannot by law certify your case without a NOD, a SOC, and a Substantive Appeal (can/should be on VA Form 9, but doesn't have to be).

The BIGGEST delays in certifying appeals are caused by 2 things:

1) The VARO sits on the case after receiving the substantive appeal.

2) The Vet keeps filing "reconsideration requests" or new NODs, splitting the claim into multiple tracks. The VAROs almost always take an "all-or-nothing" approach to certifying appeals to the BVA.

How do you fix these problems?

To Fix #1: USE the DRO....if they aren't going to grant your claim/appeal....ask them to quickly issue a SOC, tell them you'll immediately return the VA9 (Substantive Appeal), and ask if they will IMMEDIATELY certify your appeal to the BVA. Most DROs LOVE this...it gives them a s**t-ton of work credits for taking up to 3 actions on a case in less than a week. Read more here on the Veterans Law Blog: 3 Ways to Win at the DRO Hearing.

To Fix #2: Think through the "big picture" of your appeal....sometimes it is worth it to let the DRO deny one claim if it means that it - and the bigger claims - will get certified to the BVA quicker. I see a TON of Veterans that will spend years bickering with the VA about C&P exams for a tinnitus claim that will get them 10%...meanwhile, the Sleep Apnea claim that will get them 50% sits...waiting for the tinnitus bickering to stop so it can get certified to the BVA.

Do whatever you can to avoid having a single claim for SC of multiple conditions split into multiple appeal tracks. This is a hard concept to explain....I'm going to try to tackle it on the Veterans Law Blog soon.

Chris

So what if they don't certify the appeal, Chris? That's what happened to this vet, Jeff...and he sat for five years waiting...and has more recently happened with several of us who have had our appeals pulled back from going to Washington DC with a supposed BVA decision.

Now in my case, I did submit a second NOD but on a different claim decision which echoed the claim decision I'd already appealed...long, complicated story as to why. The second NOD disappeared. I was told by phone from a rep from the RO that they were effectively ignoring the second NOD because I cannot appeal the same contentions more than once at the same time. And now eBenefits says that the BVA made a decision on my appeal, which they didn't per IRIS response but the RO apparently did after receiving my Form 9 and telling me by phone that they were going to certify it and send it off, and that my appeal is somewhere in processing in the RO.

There has been lots of speculation as to why Jeff, who started this posting string, had a problem. There haven't been any facts brought forward. It could be that Jeff's appeal got just lost in the overwhelming storm tide in St Pete. Someone set it aside and then maybe never came back to it? For anyone who's worked in government, this is not an unheard of scenario.

Yes, sir, we can make it easy on ourselves and the RO by being straight forward, clear, concise, and direct, then working one thing at a time in importance order. Hey, if we can play ball with the DRO and get this things on its way faster than fast, then by all means, go that route. I completely agree. But there is a skunk in the woodpile someplace with Jeff's appeal - and I suspect my own as well - beyond what we as vets did to screw up our process.