Bva Question

[LeroyJohnson]

I have several claims now headed for the BVA washington DC. The question I have is can I still submit evidence to the BVA and if so how or should I say where do I send in new evidence before the Board makes a decision on my remaining claims.

thanks Leroy

[Berta]

GWvet-

They will send you a letter telling you that your claim has been trtansferred to the BVA.

Last January 2006 my c file passed through many hands at the VARO- One day the 800 vet rep told me it had been signed by 3 authorizors.

Two weeks later a vet rep at 800 said it had been decided and was "on its last legs"---he acted like I had won the lottery-I asked if a denied claim gets 3 authorizations and he said never-

but I dont believe what they say at 800 most of the time and just waited-

nothing happened until July- the claim was suddenly transferred to the BVA.

they tacked on an additional claim too- a CUE that had not even gotten any decision at all yet-

None of my medical evidence had been considered.Although the I-9 clearly stated that my medical ebvidence had been ignored ---etc---no one apparently read the I-9. This is a MOS that has changed at this VARO-it amazes me how many VA employees can handle a I-9 and never read it-

You have 90 days prior to getting a docket number to supply additional evidence and question if the transfer was illegal.

You deal directly with the BVA at this point.

If you have no more evidence to send and did receive due process and the criteria of the VCAA, probably within 90 days you will receive a docket number.

The amount of remands at the BVA is quite high- many due to VCAA violations-

you should make sure your rights were not violated to your detriment under the VCAA because this means- in 18-24 months the BVA will get your case on the docket and if there are deficiencies it goes right back to the VARO where you are in for another long wait.

If a C & P doctor failed to use the proper criteria that we need for IMOs, the claim can be remanded-

if the vet told VA they receive SSA and those records were critical to the claim but never obtained by VA the claim can be remanded.

A widow was remanded recently because BVA stated her VCAA letter should have advised her to get an IMO on the veteran's death-

In 31,472 cases before the BVA in 2006, the word "remand" is in 21,487 of them.

Of course this could refer to past remands as well as present ones.

But still that is a staggering statistic-

My own POA has numerous remands there that could have been stopped by helping the vet satisfy the VCAA letter or- worse yet -realiseing that the vet got a deficient VCAA letter-

many vet reps dont care- it gets the claim off their desk for years-and they- unlike lawyers- get paid anyhow-

I dont think lawyers will want to put up with long remand delays while waiting for their payment on successful claims.

This vet is on his second remand:

"In December 2001 the veteran testified before an Acting

Veterans Law Judge who later ceased to be employed by the

Board. In March 2006 the veteran advised in writing that he

wanted a new Board hearing (at the RO"

"Accordingly, the Board REMANDS for the following:

Schedule the veteran for a hearing at the

RO before a Veterans Law Judge."

http://www.va.gov/vetapp06/files3/0613341.txt

In this one the C & P was deficient

"A review of the report on the May

2005 VA examination discloses that the VA examiner failed to

state whether the veteran's service-connected left foot

disability is best described as "moderate," "moderately

severe," or "severe," as instructed in the Board's Remand.

A Remand by the Board confers on the veteran, as a matter of

law, the right to compliance with the Remand orders. Stegall

v. West, 11 Vet. App. 268, 271 (1998). Where the Remand

orders of the Board are not complied with, the Board itself

errs in failing to ensure compliance. Id. As such, the

Board finds that this case is not ready for appellate review

and must be remanded for compliance with the Remand

instructions."

from: http://www.va.gov/vetapp06/files1/0600127.txt

This was shows:

REMAND

"The Board remanded this case to the AOJ in May 2004. The

remand notes the veteran's DD Form 214 reflects release from

active duty based on "Para 5-17 AR 635-200 MCD." The remand

noted clarification of the reason for release from active

duty was noted to be necessary. The remand specifically

states, "The AOJ should define 'Para 5-17 AR 635-200 MCD,'

as noted on the DD Form 214." Such has not been

accomplished. In the case of Stegall v. West, 11 Vet. App.

268 (1998), the Court held that a remand by the Board imposes

upon the Secretary of the VA a concomitant duty to ensure

compliance with the terms of the remand. It was further held

that where the remand orders of the Board are not complied

with, the Board errs in failing to insure compliance."

from:http://www.va.gov/vetapp06/files2/0606699.txt

Here's one from my POA:http://www.va.gov/vetapp06/files3/0612478.txt

ooops no remand- the veteran (Vietnam PTSD vet) DIED while waiting for decision.

This vet is on his SECOND remand:

http://www.va.gov/vetapp06/files4/0628848.txt

due to violation of the VCAA.

I think the most important reason behind the backlog os that the ROs are failing to fulfill VCAA requirements, not addressing probative medical evidence, and vet reps are standing by watching all this happen.

I sent my main office POA links to numerous remands they had all due to VCAA violation- they tried to tell me I got proper VCAA notice and when I proved that I didn't they changed their tune a little-

I had to explain to their main office what a VCAA letter and notice really is.

I get angry when I read remands and I also see that this has become another responsibility that is put onto the vet- to make sure they have done all they can to stave off a remand.

The VA has some of the best lawyers around. The BVA lawyers are great-

they make by far better decisions than they did in the olden days-

they cannot make a good decision-however- if the claim is not developed properly or the VCAA has not been followed.

Some vets-even with deficient VCAA letters -have enough evidence before the BVA to succeed in getting a service connection decision from the BVA-

that is not something any vet can depend on-

I dont know why more vets and more vet reps are not questioning these deficient VCAA letters right from the git go-

The VSM at my RO promised in a letter to me- 2 VCAA letters on my 2 CUE claims-what a dope-Cues dont get VCAAs-

yet she never sent me any proper VCAA letter at all on my main AO claim.

The R0s have the same legal and medical criteria that the BVA has- and could make better decisions right at the RO level.

Many vet reps stand idly by and make sure -by not questioning the VCAA letters- that they dont.

Edited January 12, 2007 by Berta

[john999]

Berta

I don't think anyone at the VA reads the C-File. Otherwise, how could they hold my claim up because they said they did not have a certified copy of my DD214. It was right there in the C-File. I know that the VA sets up a temporary file when you file a new claim and I bet that the only thing that goes in there is new stuff. Anything that gets put into the actual C-File is history, and will never be read again.

[Berta]

John- I dont think they even read many claims-

In a decade ago I got denials for lack of evidence that they had right in the file-

I got a denial a few months ago on my CUE because they said the veteran never filed a Section 1151 claim.

I responded "the Hell he didnt"-in a formal Reconsideration request-to gain their attention and reminded the VA that their past director sent me a copy of it right on top of the other past missing stuff when I got my c file copy 2 years ago.

I still have the green card and the PO cert number was right on it.

The FOIA stuff from VA stated practically word for word his Sec 1151 claim when they awarded wrongful death.

I again had to remind the VA that I did not not file a new claim under Sec 1151 when he died-I reopened HIS claim- this is clearly stated in the old 21-534 and also in the FTCA SF 95.Rod called the AM he died for the status on this and his SC claim-they had said 3 months prior that the claims were at the rating board and to call back in 3 months.

He called at about 10 AM and they said the same thing- nothing had moved.Fours hours later he was dead.

Ironically when I called the VARO to report his death later that day (I think you are supposed to do that right away)I got the same woman who answer the 800# when I dialed it for Rod-that AM-

she was absolutely shocked-she and I were the last people he ever talked to.

I wonder how they can possibly say they never got my IM0s- sent by me, my vet reps (so they say) and from the BVA on my remand.

Then again this is exactly what I went through in the late 1990s-but at some point-

I Prevailed and will prevail again.

This might help someone-

my husband believed the VA was going to kill him-

his belief was based on the lack of proper PTSD care he got and that this could cause more strokes and even heart disease and ultimately cause his death.

This was his Sec 1151 claim.

He always said I should re-open this if he died.

The DAV told me I could NOT file a claim like this nor re-open his claim.

This 1151 claim and his PTSD claim "died with the veteran" per DAV Syracuse.

The DAV didnt tell me I could resurrect these claims.

Good thing I knew better.

Edited January 12, 2007 by Berta

[gwvet90]

Well they read my husbands file - that's for sure ! Searched it high & low - for any time a claimed issue wasn't complained at the Dr or not reported at every appt. & used that for a reason to deny, then said all the times issue was complained about it was "inaccurate information given by you" - .

Example - claimed IBS should be at 30% higher elevation due to Diarreah. Had claimed diarreah in the original claim - listed on several SSC & in medical records along with test.

However - on SOC they said because it wasn't claimed on the SSD application that he didn't have diarrhea & didn't get the higher rating !

I would love to send the SOC to a higher authority so they could see , in black & white , the abuse and disrespect of the RO. So much for the vet being treated with respect !

Does anyone have any ideas who/where to send it? The claim is going to be held up for years anyway .....

[Berta]

gwvet-

as much as we complain about the raters etc at the VAROs-still the veteran's documented symptoms have to fit into the higher rating criteria for them to increase a rating-

It pays to check out similiar claims at the BVA. It shows not only the diagnostic codes and the percentage criteria but also VA's thinking as to what evidence supports a higher rating.

This case states:

"The

Board notes that a 30 percent disability rating is the

highest schedular rating available under Diagnostic Code 7319."

(from:

http://www.va.gov/vetapp06/files2/0602204.txt)

and:

"Since the veteran's disability is already rated at the

maximum schedular evaluation available under Diagnostic Code

7319, a higher rating can only be achieved if the veteran's

disability meets the criteria of another diagnostic code for

a similar disorder" and the case goes on to explain more regarding this-

Sometimes vets lock themselves in with claiming a higher rating but they might instead have a secondary condition to the IBS that would probably be combined rating but still a higher rating.

Cases like this one at the BVA make me angry- why didnt the vet rep explain this all to the vet in the first place- I dont think vet reps even look up diagnostic codes to see if the claim has potential or if it cannot meet the criteria- then they could use a different approach.

(ooops- I just noticed the vet did not have a POA)

This claim was remanded however as he had additional disability:

REMAND

"A preliminary review of the record with respect to the issue

of entitlement to an increased rating for an anxiety disorder

with panic attacks discloses a need for further development

prior to final appellate review"

Edited January 12, 2007 by Berta