AFTER YOU HAVE BVA HEARING

[paulcolrain]

i see a lot of things on line regarding time frame. most start with the word NOD,,,, well im trying to get a real conversation on time frame. im not asking about returns to bva or when your appeal started,, i know that info.... MY QUESTION IS,,, ONCE YOU MET THE JUDGE IN DC AND DISCUSSED YOUR CASE AND HE SAID THATS THAT,, NOW WAIT FOR MY DECISION,,,,,, HOW LONG IS NORMAL..... HOW LONG IS NORMAL TO WAIT FOR A JUDGE TO MAKE A DECISION ON A CASE HE HAS PRECIDED OVER?

[Berta]

Someone in this thread  asked Gastone about this:   maybe Wayne did?

“You won't have a BVA Hearing until after receiving the "New & Material Evidence Cutoff Letter.”

It is explained here:

http://community.hadit.com/topic/61153-va-appeal-to-bva-5-years-old-without-progress/

Basically it means the VA must give you every opportunity, prior to a BVA hearing to supply additional Evidence.

This blog from the VA explains N and M evidence :

http://www.blogs.va.gov/VAntage/21304/what-does-new-and-material-evidence-mean/

[Buck52]

Ms berta I believe Gastnone mention that.

in my above post  stated from a Milwaukee DRO

 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. 

SO this believes me to think that when a veteran submits new evidence  it all goes back to RO Level  if I understand this correct....this is what delays BVA decisions.

[Wayne TX]

Thank you Berta & Buck,........

So does this "N & M Cutoff Letter" amount to asking Veteran to submit all of his existing evidence prior to any DRO Hearing date being set?   This is the first I have ever heard out a "Cutoff Letter" being involved in an Appeal.  Is this "Cutoff Letter" just standard procedure before a DRO Hearing can be scheduled?    

Edited January 2, 2017 by Wayne TX

[Berta]

Maybe this will help explain. The veteran claims multiple disabilities due to service.

The veteran had a DRO hearing:

“The Veteran contends that he has a current disability of the spleen caused by a personal assault which occurred in Frankfurt, Germany, during service.  The Veteran testified at the February 2012 DRO hearing that he has soreness in the area of his spleen and that he had heat treatment for his spleen in service.  DRO Hearing Tr. 18.  At the July 2015 Board hearing, the Veteran stated that the assault had caused a "slight ruptured spleen."  Board Hearing Tr. 14.

 

The Veteran has not submitted any medical evidence showing a current disability of the spleen, nor has he specified what disability of the spleen he believes that he has.”

 

He was granted one contention (tinnitus) but they remanded for this:

"Veteran is competent to report on experiencing an in-service physical assault and receiving treatment for residuals of the assault afterwards.  VA has not been able to obtain the Veteran's complete service treatment records, and unfortunately no records of this assault are currently associated with the record.  The AOJ must attempt to verify the Veteran's alleged assault which occurred in Frankfurt, Germany in 1959 by contacting the U.S. Army Crime Records Center and any other appropriate organization for additional action necessary."

( This was to try to confirm evidence his spleen had been damaged inservice)

 

And remanded for this :". Verification of Mustard Gas Exposure

 

The Veteran has also submitted written statements indicating that he believes his lungs and stomach were damaged by exposure to mustard gas in service.  The Veteran submitted a Mustard Gas Questionnaire in December 2009, stating that on approximately 24 occasions he underwent a training exercise in Germany and at Fort Campbell between 1957 and 1960 during which he removed his gas mask while in a gas storage chamber.  In March 2010 correspondence, he stated that the mustard gas experiments occurred 3 or 4 times during service, in 1958 and 1959.

 

A December 2009 correspondence from the Mustard Gas Program Manager stated that the Veteran was not a "test participant" in Mustard Gas Project 112/SHAD or Chem-Bio programs, according to the Department of Defense database.  Although this response was negative, it does not appear to the Board that the AOJ fully followed the development procedures for claims based on exposure to mustard gas as indicated in the M 21-1 Adjudication Procedures Manual, IV.ii.1.F, "Developing Claims for Service Connection (SC) for Disabilities Resulting from Exposure to Mustard Gas or Lewisite." 

 

"As such, on remand, the AOJ should undertake any necessary development to attempt to verify the Veteran's allegation of such exposure.  Specifically, the AOJ should request that the United States Army and Joint Services Records Research Center (JSRRC), the U.S. Department of Defense and VA Chemical Biological Warfare Exposure System (M21-1, IV.ii.1.F.3.c.), and/or any other appropriate source research mustard gas use at Fort Campbell, Kentucky from 1957-1958 and in Frankfurt, Germany from 1958-1960.  Any additional action necessary for independent verification of the alleged exposure, to include follow-up action requested by the contacted entity, should be accomplished. "

 

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp15/Files5/1538378.txt

The point is, any evidence at all should be sent to the RO ASAP….however, if the DRO denies the claim and the veterans appeals to the BVA, they will have time to provide more evidence....if they provide it before the BVA renders a decision.

In the above case, it appears the veteran was not advised to obtain Buddy statements as to the assault or any other supporting evidence.

In the mustard gas claim....this was a VA CUE from the git go.....

I have no doubt the Mustard Gas claim might be valid.Prior to my Marine husband I had lost an Army vet who had been in mustard gas tests in Germany during the Korean War  era.His death was NSC.

In one test something went wrong. It was all in his SMRs.But he had no residual disability from it.

Mustard gas exposure has a unique smell. The VA knows what the odor is.

When a vet can describe that smell, that is one more piece of probative evidence. Mustard Gas  tests were to insure their Gas Masks worked. If they smelled the unique odor ,and immediately got sick , obviously, the masks didnt work.

There were always medical people at the tests who would note in SMRs if the serviceman got sick from the MG test.

The VA will accept evidence right up to the point the BVA  on their decision...if the I-9 has been timely filed.

And in many cases they will remand for more evidence, as within the above case.....that they want the VA to pursue.

But the best thing any vet can do is send them probative evidence right from the git go.