Received BVA decision

[Sailorman]

Good afternoon! 

I received the BBE from the BVA and all of my contentions were remanded by the BVA Judge.  I’m fine with the remand; however, I believe the judge made an error writing my decision and I wanted to pick some brains. 

Two of my contentions, my right and left ankles were on appeal for a higher rating of 10 percent each.  The judge remanded both ankles for and entitlement to initial rating in excess of 20 percent each. 

I wonder if the 20 percent is a typo or if the judge is directing the RO to begin the rating at 20 percent after the C&Ps.  Have anyone seen this type of decision before?

Thank you!

Edited September 24, 2018 by Sailorman

[Sailorman]

Thank you for chiming in Bertha. My docket # is 16-55 349A.  The Judge did State the examination was inadequate. 

Edited September 27, 2018 by Sailorman

[FormerMember]

Sailorman,

Please disregard Lemuel's post as it isn't applicable to your case just yet. If you are remanded to the Agency of Jurisdiction (AOJ- your Regional Office) or the Appeals Management Office (AMO) your claim is still at the regional level. If, and when, the RO re-examines you and rerates you, only then will they return it to the BVA Judge. Right now, he "controls" it. If, and when he denies you, you can appeal it up to the Court of Appeals for Veterans Claims (CAVC). They will decide it. If, and only if, they deny you by affirming the BVA decision would you be in a position to obtain review at the Federal Circuit Court of Appeals. This Federal Circuit is what Lemuel refers to in his post. You are a long way (4 years) from getting to that stage of your appeal at the moment. 

Might I suggest you file a Waiver of Review in the First Instance with the BVA of initial review of any evidence at the Agency level to avoid future remands?

best of luck.

a

[Berta]

I dont know if your decision is at the BVA yet Sailorman.

The BVA site has been down a lot lately. I thought it  was my access but the 'isitdownnow' site said it has been down for everyone.

[Lemuel]

On ‎9‎/‎25‎/‎2018 at 8:17 AM, Berta said:

If we have your docket # the BVA remand might be on line by now-

It helps to read remands very carefully-

I had 3 IMOs for my DMII death claim, and had a VCAA violation I mentioned in the appeal.

BVA remanded for a third posthumous C & P exam -from a cardiologist.

Instead I got a C & P exam written by a PA.

I knocked it down medically right away-and argued that it was too speculative and not done by a cardiologist as the remand had called for. I knew more about cardio than the PA did,and I sent my rebuttal directly to the BVA.

BVA agreed, and also said I had overcome the VCAA violation with medical evidence  and they awarded the claim.

You might get  a fair shake because they will do another C& P exam to determine the rating. I hope they do it right.

 

 

 

 

 

I'm on my third remand for an examination now.  And I didn't read the decisions carefully or the responses from the AOJ. 

My filing is against the AOJ Agency decision because they were refusing to certify the issues I raised to the BVA.  The BVA wouldn't consider issues not certified which made the issues a "finale decision."

The CAVC wouldn't consider issues not considered by the BVA. 

At the CAVC 17-2990 the Clerk's Orders were unable to pry the evidence from my Health Division Medical Treatment Records so the Dispute with the Record Before the Agency was going nowhere because of the obfuscation.

I have no idea how the Federal Court of Appeals is going to rule because of SOL considerations.  I may have to wait until a ruling by the CAVC stating they couldn't consider the issues and appeal in a timely manner to that ruling.

But I think I have a case under the FCA Jurisdiction for "arbitrary and capricious acts."  

So Berta is right.  Read everything carefully and compare it to the facts. 

I had an appeal closed because I couldn't get the evidence from the Health Division to support my claim.  Three hearings were scheduled after receipt of my letters notifying the AOJ that I would be out of the Country for a time during the time I was out of the Country and unable to receive the notices of the Hearings. 

On the last hearing, I had ask for the Hearings location to be moved to DC where I was moving.  The hearing was scheduled after receipt of the letter by the DRO notifying that I would be in DC and sent to a 2 year old address.  Then the Appeal was then closed by the DRO because of my failure to appear.  And I've been unable to even get the arbitrary and capricious closing considered as an issue of abuse of power.  The DRO could easily have substituted my hearing time to someone after me and scheduled my hearing when I was available but didn't.  Just used the opportunity to clear his desk.

And the DRO that closed the Appeal wasn't actually the DRO of the AOJ that the Appeal originated in.  So there was no reason to not transfer the Appeal with me to VARO DC as it had been transferred from VARO West LA to VARO Cheyenne/Denver.

[Lemuel]

19 minutes ago, Berta said:

I dont know if your decision is at the BVA yet Sailorman.

The BVA site has been down a lot lately. I thought it  was my access but the 'isitdownnow' site said it has been down for everyone.

The eBenefits site has been down also.  Probably related.  May be related to the Health Division's problem with "Blue Button" records.

Berta, Do you know if there is any access to a veteran's "Evidence Center" file which I presume is the new "C-file" since we have to send all evidence to our assigned Evidence Center first.  Problem is we can't verify something was received and filed without access like we used to have by getting an appointment to review our file at our VARO.

Or perhaps someone knows the proper route.  It isn't published.  Perhaps go to VARO and sit down at a computer after someone has pulled up your file to review it.  Nice to be able to find a way to see what is happening.

VARO Denver doesn't have qualified TBI/PTSD examiners except in Golden Colorado.  And, though qualified, they are doing abbreviated examinations not following protocol.  I suspect budget cuts have made that the rule around the country.

[Berta]

Sailorman- I was finally able to get to th BVA site but your decision docket does not appear there yet.

They do try to get decisions posted faster at BVA these days. Whew- I get worried when BVA is down. I have learned plenty from reading BVA decision, whether denied or awarded.