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Veterans Law Judge no longer works for VA and my appeal

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Treymon

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I entered a claim in April of 2009 for secondary service connection, claim to my lower back. As a result of my appeal, I got a letter stating that the Original Veterans Law Judge is no longer with the VA and that according to USC 7107(c); 38 CFR, 20.707 my case has been reassigned to a new Veterans Law Judge. They say that they have a transcript of the original hearing and can make a decision based on this transcript. I asked my Vets Advocate, VFW, to assist me in this matter. The original hearing was looking for service connection in my service record. There was only one entry in my Service sick call record that was  accordingly un-readable. My claim was refused. I've had the lower back fusion after 8 knee surgeries (service connected) and my neurosurgeons said that my back was condition was due to my compensatory gait from my knee surgeries. My question is: The original hearing was for service connection from my back and not secondary service connected from my knee. I've been unable to find the shipmate who saw me carry the 250 lb. radar motor up the mast for replacement and then went to sick call for my back injury. The VBA is asking me to choose as to whether I want them to go ahead and make a decision based on transcript, (which is for service connection and not secondary service connection) or if I should request another hearing or teleconference video. The VBA states that this will take a whole lot longer to wait. My Vet Advo, the VFW stated, that they could not find out what was in the transcript because the VBA would not give them a copy of the transcript. All they said was that appeal was not for secondarily connected service issues and that the only way to get the transcript was to  file an entirely new claim? I'm confused. Any advice out there would be appreciated. (The VFW doe snot know what evidence I have submitted for this claim.) Thanks

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Buck, thanks a lot of that reply.

https://www.lawserver.com/law/country/us/cfr/38_cfr_20-714

There is no reason VA cannot release that transcript to this veteran if they follow the procedure in 5, (B) in the link.

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My 2 cents:

Its not the VEteran's responsibility to decide what type of claim this is:  Primary, Secondary, Presumptive, ETC.    The VA has an obligation to consider all types as the evidence suggests.  This said, when you filed the I9, you have to state the issues before the board, Ie back secondary to something else, etc,   If the board identifies an issue that has not been adjuticated, I think they are supposed to ask the VA to adjuticate it, or file a waiver of RO consideration.  However, I heard Wavier of RO consideration forms are now longer needed.    Of course, this does not mean a VA employee and a BVA judge can not overlook presumptives, secondary conditions,  or other benefits available to the Veteran

The Board should adjutciate the issues you had filed in your I9.  They call that "perfecting" your appeal, which is iniitiated by filing a NOD.    Unless you have " new/additional evidence" to submit, then you should not have to send anything else to the Board except maybe a waiver or ro consideration.    The I9 identifies the issues, and the Board does not even have jurisdtion on issues UNLESS the Vet has given them to the Board by fileing a nod and the applicable I9.  

It may be to late to ask this, but you need a complete copy of the cfile, not JUST the transcript.  

AFTER the board decision the RBA (record before agency) is usually available.   I got mine on DVD from my attorney who represented me.  This is a big deal.  To my knowledge, VA does not provide a RBA to the claimant BEFORE the BVA decision, which is wrong and a violation of due processs.  38 cfr 3.103.    The hearing is your opportuntiy to view the evidence VA has on file, and compare that with what YOU have available.    Your represenatative should know this, so your representation sounds less than optimum, or even bad.  

I think your best method is to continue with the appeal.  If denied, then hire an attorney, which you can probably do at little or no cost, but you have to do that very quickly, so now is a good time to line up an attorney.  The attorney will want a copy of your BVA denial, so have it stored electronically on your computer, so you can send it to more than one attorney.  

REason:   Attorney's pick and choose their claimants, and some do so based on the attorneys area of expertise.  An attorney may deny you representation as it may simply not be his or her area of expertise.  Remember, the CAVC regurarly awards attorney fees (EAJA) to claimants who win or even win a remand at the CAVC level, so its very likely you wont have to pay much of anything for representation to the CAVC, if/when your BVA appeal is denied.  

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I agree with Ms berta

''It  would be most beneficial to you to request this additional hearing ''

If the first judge denied and you appeal and now  you get another shot at it  your going to need to change the other judges mind  and to do this you need new evidence , or request for reconsideration or reopened claim & submit New & Materiel Evidence.  if not you will more likely be denied.

I maybe getting a little ahead here you may need to be denied from this new BVA Judge First? (Ms berta/broncovet?

As Gastone mention this would be a good Question For Asknod

jmo

Edited by Buck52
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I had posted a question about an appeal that I had where the Veterans Lawl Judge had retired. I did not request a new hearing on the advice of my Advocate the VFW. I finally received a decision and have that enclosed it here.

The VA has agreed to grant me service connection for my lower back and to send into remand the issue of my left foot neuroma.

I spoke with my advocate and he told me that I will be awarded 10% effective to January 2005. He also told me that I would have to get another C&P exam for my left foot.

I called the entertainment line at the VA (800-827-1000) to find out when this decision by the Seattle VA would be "all" finished. They told me it could take anywhere from a few months to five years as they are so behind. This has been going on now for 12 years!

Does anyone know how to get this expedited? What might realistically expect? Thank You in advance!

VA August 7 2015 Appeal Ruling and Remand.pdf

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I was granted my appeal from an NOD that I sent in in 1990. Now the VA is saying that the claim was for Jan. of 2015 and not in Dec. of 1990. Do I send in another NOD about this and what can I realistically expect? Thanks

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