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USMC2311

BVA Docket Number Assigned

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USMC2311    3

All,

I just received an IRIS response to an inquiry about my BVA appeal for ankle contentions.  It indicated that on 2 June 2015 a docket number was assigned to my appeal (form-9), It’s been 3 months, should my BVA packet have been certified by now and sent to the BVA?  How long does it take the RO to certify appeal packets?

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lotzaspotz    314

My husband's took around a year and a half for the New Orleans RO to certify before sending the appeal to the Board.  Sorry to say...

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USMC2311    3

lotzaspotz,

Thanks for the reply, I am just happy that I got this far with getting a docket number assigned.

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Buck52    2,731

USMC2311

After it reaches the BVA  They then go by Dockett Number as they come in and thats usually another long wait. (sorry to say)

if you can't work because of your disability and your SC for it  request your claim to be expedited due to a hardship on you and your family.

There are some CFR's on this but  I can't remember them .

Ms berta or asknod would know.

 

...............Buck

Edited by Buck52

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broncovet    3,175

Ok, you have it backwards.  Your claim is certified by the RO, and then your claim is docketed by the Board.  Your RO has to certify that all your evidence is in order before it will be sent to the Board.   The RO also has to complete applicable SOC's, and SSOC's, and give you a waiting period to respond to the SOC/SSOC before it will be certified to the Board.  

In short, you are ahead of the game if you have a docket number.  According to the BVA website, they are currently assigning cases to judges that were certified in 2014.    The 2014 Chairman's report indicated its about a year, once your claim has been certified and sent to the BOARD, BUT, they admit that it will likely be longer in 2015, because there are about 20% more appeals in 2015.  You probably have 1-2 more years before a BVA decision, with my guess at 18 months.    Once you get the Board decision, it took my VARO 3 years to implement it, and multiple emails to Allison Hickey as the Board says it has to be done "in an expiditious manner".  

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Buck52    2,731

Once the appeal issues are ready for decision (RFD), ideally, NODs should be worked from the oldest pending to the newest received, with the exception of priorities, which include Homeless Veterans, Seriously Injured/Wounded Veterans, Congressional Inquiries, and Financial Hardship cases, etc.  Priorities are worked before all other pending claims.

This also means that a Veteran who has filed multiple NODs over time, may only receive a decision concerning his oldest pending NOD, while the issues contained in his other “younger” NODs remain pending.

The file is reviewed and decisions are rendered.  If all of the issues within an NOD can be granted in full, a rating is prepared to grant the issues.  Otherwise, we must issue a Statement of the Case (SOC) to the Veteran, which provides the applicable VA regulations and explains the reasons for the decision(s).

Once an SOC is issued, the DRO process is complete.  If the appeal continues, it is now under the Traditional appeals process.  DRO authority does not extend beyond the issuance of the SOC.

In order for a Veteran to continue the appeal, the VA must receive a Substantive (Formal) appeal, which is a VA Form 9, Appeal to Board of Veterans’ Appeals, or an equivalent statement of intent to continue the appeal.  There is no legal requirement that a specific VA Form must be received in order to continue an appeal, but VA must receive some form of communication in writing from the Veteran or his Representative indicating an intent to continue the appeal.

A Veteran has EITHER the remainder of one year from the initial decision notification letter, OR 60 days from the date the SOC was mailed, to file his Substantive appeal.  Otherwise, his appeal rights for those issues expire, and the NOD is closed.

If the Veteran has filed a timely Substantive appeal, the next step in the appeals process is to certify the appeal to the Board of Veterans’ Appeals (BVA), which is to transfer jurisdiction of the appeal to BVA.

However, the Regional Office cannot physically send the claims file to BVA until all pending NODs and all pending claims have been decided.  There can be no appeal issues pending before the Regional Office at the time the claims file is sent to BVA; otherwise, BVA will issue a Remand instructing the Regional Office to issue an SOC on any pending appeals.

Additionally, if the veteran has requested a BVA travel board hearing or BVA Video conference hearing, the claims file remains physically at the Regional Office until the BVA hearing can be scheduled.

In the past, if any additional evidence was submitted which related to the issues under appeal, then the Regional Office had to review the additional evidence, and if the appeal continued, it had to issue a Supplemental Statement of the Case (SSOC) explaining why the additional evidence did not change the prior decision and give the Veteran 30 days to reply.  If yet more evidence was received, another SSOC was issued with another 30 day reply period.  There was no limit to the number of SSOCs which could be issued.  The appeal could not be certified to BVA until all of evidence in the claims file had been considered at the Regional Office level.

If an appeal was certified to BVA and additional evidence was subsequently received, the Regional Office had to either obtain a waiver of jurisdiction from the Veteran or his Representative, or the appeal had to be removed from certified status and another SSOC issued.  Following the 30 day reply period, if no additional evidence was added to the claims file, the appeal could be re-certified to BVA.

This is the stage where many delays occurred because many Veterans have multiple appeals pending in various stages of the appeals process.  Additionally, they will also have new claims pending in various stages of initial development.  Therefore, every time additional evidence was added to the claims file, the Regional Office Appeals Team had to review all of the appeals to determine if an SSOC was necessary.  If so, then any appeals already certified to BVA had to be removed from certified status, and the process continued to repeat itself until such time that all evidence in the claims file had been considered in a decision at the Regional Office level.  It was only then that we could physically transfer the file to BVA jurisdiction.

Effective February 2, 2013, Section 501 (Automatic waiver of agency of original jurisdiction review of new evidence) of Public Law 112-154 took effect.  This change in law established an automatic waiver of Regional Office (agency of original jurisdiction) review of evidence received after receipt of the substantive appeal.  The evidence is subject to initial review by BVA unless the appellant specifically requests, in writing, initial review by the Regional Office.

However, to date, we have received no guidance from Compensation Service and Pension and Fiduciary Service on how to implement this provision.

Therefore, at least at the Milwaukee Regional Office, we are still issuing SSOCs until we receive guidance to do otherwise.  I would also note that I personally have seen two separate BVA Remands dated from April 2013, which is after the change in law, in which a BVA judge noted there was evidence in the claims file received after the substantive appeal which the Regional Office had not considered.  Both Remands ordered the Regional Office to consider this evidence as part of the reasons for the Remand.

Hopefully, however, 

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