Appeal Remanded...

[Indy_CV62_OS]

My Legacy Appeal was Certified Jul 2019.  In the time that my case was at the Board, I had filed new claim for Hearing Loss and Tinnitus; 0% for hearing and 10% for Tinnitus.  Beginning in late August, I sought out a local lung specialist for a complete exam and evaluation of the collapsed lungs.  He had determined that the left side chest tube caused an injury to the Intercostal Nerves.  This is accidental and also common.  All of that evidence, including a CAT scan went straight to the Board.  When the evidence was faxed, I had waived any consideration of the RO for the new evidence.  I wanted the Judge to see the new evidence and decide my Appeal.

The Board punted my Appeal.  They either screwed up or chickened out.  If someone at the Board failed to show the Waiver to the Attorney or Judge, then they goofed.  If the Judge knew about the Waiver and still made a mere footnote of my Triple Board Certified Pulmonologist, then something else is screwy.  The Board referred to a 2017 C&P Exam for my chronic chest pain, evaluated by, get this...a Nurse Practitioner.  Not that there's anything wrong with NP's, but why did they not rely on the New and Material evidence?

Now my case will go back to the RO and this could take years.  I can't petition the Court of Veterans Appeals because the Judge's order is not final.  So, they get to play with me longer.  I am going to get on the horn with my Lawyer tomorrow and find out if we can file a Writ of Mandamus and take their ass to Federal Court.  It just knocks me out.  I'm running around on my dime gathering evidence that they need.  I even said "I'm willing to wait until the cows come home, as long as the Board applies the new evidence and get it right".  I sure hope somebody can learn from this.  I am way past pissed off and frustrated, but I'm not backing down.  I hope everyone has a good week.  Oh, that other forum?  Learned my lesson once and for all.  You can't even sneeze on their beloved VA without getting your pee pee smacked.  I'll stay here.

[vetquest]

Indy, it appears that the BVA is giving the RO a second chance to do it right.  Short of that I cannot understand their decision.  I went through the same thing on a appeal that took ten years.  What I learned on that appeal is that the RO is supposed to expedite the case.  They will not do that.  After one or two months ask your lawyer to file a writ of mandamus to expedite your case.  This worked for me on the second remand.  It was completed soon after the threat of a writ.  Good luck. 

[Indy_CV62_OS]

18 minutes ago, vetquest said:

Indy, it appears that the BVA is giving the RO a second chance to do it right.  Short of that I cannot understand their decision.  I went through the same thing on a appeal that took ten years.  What I learned on that appeal is that the RO is supposed to expedite the case.  They will not do that.  After one or two months ask your lawyer to file a writ of mandamus to expedite your case.  This worked for me on the second remand.  It was completed soon after the threat of a writ.  Good luck. 

VQ...Great to see you again.  It almost smacks of a case that does not merit a VLJ.  I'm really looking forward to talking to my Lawyer.  He'll push them.  The funny thing is, the Appeal probably went right back to Philly.  Philly RO sat on my Appeal for almost 2 frigging years.  I will win.  I now know what happened when they put that chest tube in.  I just can't figure out why the Judge didn't just Grant with all of the new evidence from an extremely qualified lung doctor.  It is baffling.  I'm still trying to process the incompetency.  What REALLY pisses me off is that WE, the ones who went and Served, did not do a half ass job.  And we sure as hell didn't make the Service wait 5 to 10 years before we shipped over.

Edited November 4, 2019 by Indy_CV62_OS

[Indy_CV62_OS]

Since 1984, I have complained numerous times about the pain in my left side from the chest tube.  Yes, collapsed lungs that are treated is not a disability.  My disability is the accidental injury caused by the treating physician.  And attached here is the opinion of a triple board certified lung specialist...

[vetquest]

I can see why they did not take you seriously.  It says panic disorder on your impressions.  Leave it to the VA to claim it was all in his head.  Did this doctor do a DBQ or IMO?

[Indy_CV62_OS]

UPDATE: I am reading the Judge's Order and now I'm thinking the Judge is going all the way back to the Oct 2007 Denial.  The Judge cited 38 U.S.C. 5108....Reopening a disallowed claim.  It also cites new and material evidence which is not duplicate or redundant since one year after the Oct 2007 Denial.  I wonder if the Board is forcing VBA to go all the way back?

Edited November 6, 2019 by Indy_CV62_OS

[vetquest]

Can you redact and post the remand?  It would help a lot.