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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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Referencing BVA Decisions

Question

My disability claim is currently at the DRO level and I am trying to gather additional facts and information to support my claim. While conducting research, I came across several BVA decisions that support my claim. While discussing my claim with my VSO, she informed me that I am not able to reference BVA decisions in my claim. Is this true? I understand that each BVA case is specific to each veteran, however in my case it doesn't make much sense.

Amongst other things, I am service connected for a rare terminal disease called Aggressive Systemic Mastocytosis. Since there is no rating code for this disease, the disease must be rated analogous to a ratable condition within the Hemit and Lymphatic System. The VA rated my disease under anemia and assigned a 0% rating. I discussed this decision with my doctor who was outraged that the VA would rate my condition under Anemia, which she stated is not even close to being analogous to Aggressive Systemic Mastocytosis. I provided my doctor with the Hemic and Lymphatic rating schedule which she determined that the only analogous condition on the list was Leukemia. In fact, many times Aggressive Systemic Mastocytosis will actually progress to Acute Myeloid Leukemia.

My doctor wrote a detailed letter explaining why my disease should be rated as Leukemia vs. Anemia, as well as a detailed explanation of my disease progression, constant need for aggressive treatment, and continuous medical observation. Additionally I discovered a couple of BVA decisions where the BVA rated Systemic Mastocytosis under rating code 7703 (Leukemia). When I provided these documents to my VSO today, she informed me that I am not able to reference BVA cases in my claim. Is this accurate? Am I able to reference BVA cases in support of my claim?

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Not exactly.  BVA case law is "non precedentail" which means its law is non binding.  However, 2 kinds of CAVC cases are precedenial:  En Banc, and Panel decisions.  The idea is this.  When all the judges (en banc) get together and render a decision, that decision is binding on other judges, that is, precedentail.  However, neither single judge CAVC decisons, nor BVA decisions are precedential.  

What all this means.  READ the applicable CAVC decision.  They often cite case law from Precedential case law, and you can do that also.  

In my opinion, your new letter from your doc is "new and material evidence" and should help your appeal.  However, even tho Berta sometimes uses BVA case law, just understand that another judge does not have to honor what that judge decided.  Its non precedential.  

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I appreciate the response as it clarified everything for me. One question I do have is this: My VSO refused to accept the BVA case as a reference in support of my claim. Knowing that the DRO does not have to accept the findings in the BVA case, I still think it would have a some sort of influence on my claim, showing what others have rated this rare disease under in the past. I think my VSO was wrong in refusing to accept the reference (whether it has any weight on my claim or not). What are your thoughts? Do you think a non-precedential case would have any weight in the support of a claim?

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Do you have an IMO/IME that follows the IMO criteria here at hadit, from a private doctor.

BVA- their decisions ,based on the medical evidence, are decisions for individual veterans. Every disability is unique to the specific veteran based on a thorough review of all evidence.

However legal statements by BVA are binding on all decisions. And those in CAVC decisions.

A diagnostic code is a legal entity. It sounds like they will give you an analogous DC.

This is a personal example of what I mean.

Decades ago I had filed an I-9 appeal. I had subsequently won that claim at the VARO level. I didnt withdraw the appeal...didnt even know I could do that.

The BVA stated correctly that appeal was a moot issue. But they went on to say that if I succeeded in a direct service connected death ( This was a Section 1151 /FTCA death), then the VARO would have to refund to me a very large offset amount to my 1151 DIC.

I subsequently proved 3 separate direct SC death issues. The first issue was an award for direct SC death of my husband due to undiagnosed and untreated DMII from his exposure to AO in Vietnam.

This was not part of my FTCA case. It was filed about 5-6 years after the 1151/FTCA matter was settled.

I sent eh VARO the whole BVA case highlighting their statement as to the offset refund.They refused to pay me. They had also refused to reply to letter I had stating that the offset amount had been recovered but still they were taking my DIC check and I had never received a proper DIC check at that point.

I then called up General Counsel and got the lawyer who had settled with me on behalf of the USA.

I faxed him the BVA decision. Some big honcho from OGC called my VARO. The check was in the mail.

Regional Counsel also had my files and had to confirm my FTCA case info.He called CUE on them beause when he saw my letters about the offset, and checked into it, he got them to pay me about 40,000 more, solely do to their error on the DIC offset. OGC DC got them to pay the FTCA offset refund.

This is what I mean....the BVA had made a legal statement in the moot claim decision.

Nothing had changed in VA case law on that since the older decision. 1999-2000?

The BVA decision I used was legal evidence. The OGC squared this away immediately with the RO. The VA OGC and the BVA can read.

One other point......I had so much medical and legal evidence for my AO DMII claim that, like all of my past claims, the RO could have awarded it.

Unfortunately the BVA stated some of it- the whole list could have helped others- and said the claims was "at least "in Relative Equipoise" because the evidence FAR outweighed the RO C & P examiners crap.

Also I asked BVA for a Remand because my VCAA rights were violated.

They remanded instead for one more C & P exam and I knocked that down myself with my already established viable lay medical opinion. and sent my rebuttal directly to the BVA  who agreed the exam was too speculative, did not consider it , stated I was correct as to the VCAA violation, but rendered that issue moot because they awarded the claim.

What you might want to do is this----search the CAVC web site or maybe the case is still here....

years ago a veteran had a heck of a time  with his AO disability- of a leukemia nature was not on the AO presumptive list. With a strong IME ,after years of denials, the CAVC awarded his claim.

I will try to find it because in that CAVC case the entire decision was of a legal nature in regards to the veteran;s medical condition.

Edited by Berta

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This member might have his email addy open...it has been years since this post:

in his profile----is story might help you.Dis regard the argument in the posts........it has nothing to do with the subject.

Perhaps there is something at CAVC that can help- CAVC cases that are deemed precedent decisions are acceptable evidence for the VA.

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I cant find what I was looking for---a CAVC award for a similar situation. I posted the story here years ago....

Can you scan and attach here the VA decisions that prompted the DRO hearing?

We need to see the VA rationale for denying the claim, the evidence list from the decision and it would be great to see the C & P exam too.

Cover C file # and your name

Is the IMO/IME new evidence that VA has not seen yet? Or did they have that but ignored it in the decision?

This is a DRO review that can change everything for you. Is this an in-person DRO hearing?

Will someone on your POA be at the hearing with you?

 

 

 

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