RO waiver on BVA Remand question

[Navy62Spouse]

I am new here & posted a longer history in the PTSD section.  I have a (hopefully) quick question.  I already sent my argument to SSOC with some new evidence in a week ago.   The claim is at the Cleveland RO currently (which I hear is the worst) on a remand from BVA.  Can I send in an RO waiver at this point, or will the RO be reviewing evidence/developing from what I just submitted?  In looking at CFR 38 & M21-MR, It sounds like the waiver only applies if the claim is currently at the BVA & prevents them from remanding to the RO for evidence review.  

Should I resubmit what I sent with this waiver or just sit back & wait u til the RO certifies again & returns it to the BVA?  We only have until 9/12/17 to respond within the 30 days.  Also, this was mailed certified, return receipt 9/1/17 and still says 'in transit' on the usps tracking.  Any thoughts?  Thank you!

Edited September 10, 2017 by Navy62Spouse

[Berta]

GREAT Advice ArNG11!!!!!

I posted this statement here a few times over the years and used it in my last 1-9, as it was recommended to do that in the VBM by NVLSP. The VARO had not sent me a valid and legal VCAA letter. My so -called vet reps to include their state director would not support my request to the RO for a valid VCAA letter.

The BVA agreed with me but said the violation was moot because my evidence overcame the VCAA  violation.

You are sure right as well that one must carefully word their appeal. I had filed for AO  direct SC death but the disability had never been diagnosed or treated by the VA. I had already won DIC under Section 1151 for wrongful death so the RO did not want to re-open my claim. I fought them until they did, knowing the BVA would get it.

The BVA did. There is no Honor in knowing the VA killed my husband ( Section 1151 DIC) There is plenty of Honor knowing he died due to malpractice of DMII , IHD, CVA, and HBP and the AO DMII claim and AO IHD claim resulted in 2 theories of direct SC death on top of the other 1151 issues.

I had to spend quite some time in 2003 to word the claim carefully  so that it could not be construed to be an additional 1151 claim.

You made an excellent point.

We Must carefully word our claims and our appeals. 

And even explain the evidence step by step, sometimes, like they are 10 years old.

"I take exception to and preserve for appeal ALL errors the VARO may have made or the Board hereafter might could make in deciding this appeal. This includes all legal errors, all factual errors, failure to follow M21-1,all due process errors and any failures to discharge the duty to assist as violation of basic VA laws and regulations within 38 USCS and 38 CFR."

Source Veterans Benefits Manual ( 2003 Edition, NVLSP National Veterans Legal Services Program)

 

 

 

[Navy62Spouse]

The RO sent a letter stating they were sending the claim back to the BVA.  The evidence/argument I had sent to the RO took 12 days to reach the RO (sent 1st class, certified, signed receipt).  It arrived there the day of or after the RO letter arrived  here stating it was being returned to the BVA...so I knew it had not been associated with the file or scanned into it.  So, I resubmitted the argument and evidence, along with the RO waiver on top of everything and sent it to the BVA....via Priority Express mail with signed receipt.  It wasn't cheap, but is guaranteed a 2 day delivery.  I did discover from the post office that certified 1st class has no time guarantee of delivery...and we couldn't afford for it to take another 12 days.  The docket number for this claim is 09, so it should be in a VLJs hands fairly quickly.

[ArNG11]

I am glad Navy62Spouse.  Don't even give the VA a mm to move and delay your claim any further.   There's a reason why folks still send copies of the signed receipts.  Sadly because the VA is so damn shady.  Good for you.  Wish you the best.   Keep fighting till you're vindicated, till the last breath.