Decisions inconsistency at BVA level

[Whodat]

So to kill time, I have been reading 2022 BVA decisions. I have seen a few cases that are pretty similar. For example, Vet 1 filed a claim for a disability 10 years after service, had an event or injury while in service, a current diagnosis, no IMO or anything, was granted. Vet 2 pretty much same scenario, denied. 

Lots of cases that I have read is pretty much lowering my morale level.  In example, I had an event or injury while in service, a current diagnosis as well as a diagnosis while in service. I have read one denial case that stated that disease and or injury did not manifest within 1 year after service. My retirement physical did not include x rays even though I did identify my symptoms. How does VA knows if it did or didn't manifested within a year after separation?

Also I see lots of remands at BVA level. Even though I see somes cases with IMO,s some have favorable c&p exams but still get remanded. Most of the appeals is under the legacy system, if there are so many denials and or remands, how will the legacy appeal system meet the 2022 deadline? I don't think that the legacy system won't be exhausted until 2024. 

[Whodat]

1 hour ago, pacmanx1 said:

At the present time, I believe the VA already announced that they will not meet their end of year 2022 goal of eliminating all the legacy appeals. With that said most of the BVA decisions are either denials or remands. It seems that the BVA tries to give the VARO a second chance by remanding claims hoping they will get it right, don’t forget that there are times when the BVA will grant claims or decisions but still remand them back to the VARO for rating purposes or to assign them effective dates. It is what we call the hamster wheel.

I have had one claim continuing for two decade and now it is going back to the CAVC. Depending on what evidence is in the records, you will never know exactly what helped the claim get granted or what caused the claim to be denied. In my case the evidence was always sitting there in my records, but it was not until I made extra copies and submitted them to the BVA before someone decided to review my entire records but now, I am doing the exact same thing for my rating percentage.

I see that you posted several times about lowering the morale level, IMHO (IN MY HUMBLE OPINION) you have to learn how to encourage yourself. Get angry, get upset but channel all that energy up and begin focusing on the evidence and the regulations you need to better understand your worth. It’s like this, I was told several times that I did not have a chance of getting my service-connected disabilities granted. It just pissed me off and I decided to figure out what was going on and why the VA was denying my claims. Most to all my claims that were once denied are now service-connected and now I am going after the correct effective dates. So as for me my morale is fine, and I am looking forward to the next step. It is OK if my claims are denied but give me a real reason that I can understand but if you can’t, I am going to file an appeal until I get a better answer or the right answer.

I feel it is better to fight the VA now compared to fight the VA later where my health and my mind may be in a worst state or condition.

 

So what I am gathering is that a promise had been made but the promise can't be fulfilled. Gotta love it. 

[broncovet]

The VA has 2 goals, which conflict each other.  They are:

1.  Grant every benefit documented by Caluza  elements

2.  While protecting the interests of taxpayers.  

      This is a nice way of saying they want to "weed out" granting benefits to fraudulent maladies, or exaggerated symptoms.  

     There is a "balance" between these conflicting interests...a "sweet spot" where truly sick and injured Veterans are paid, while frauds and malingerers, are denied.  The trouble is you have to prove which of these categories you are.  This generally means they dont beleive a word the Veteran says, only his doctor and other medical professionals opinions.  

      Audiologists, for example, are trained to spot Veterans faking a hearing loss to get benefits.  Its actually fairly easy, in my opinion, for the audiologist to spot fakers so "dont even try it".  

     The hearing test consists of about six levels, in mhz, as well as speech discrimination.  

     It would be highly unlikely that a Veteran could take 2 or 3 different hearing tests and be able to fake that he has hearing loss in 1000, 2000, and 3000, mhz consistently each test, unless you were really hearing impaired.  You see, they give those at different sound levels. (DB's.). 

     Just tell the audioligist "what you hear" and what you dont.  They can smell a faker from a mile away.  No, they wont kick you out of the exam room, they just state something to the effect that the Veterans hearing tests are inconsistent with each other, and therefore the results are unreliable.  

    It is true we can sometimes hear better than others.  For example, especially if you have tinnitus, and you go to the shooting range without ear protection a half hour before the test, you could easily have ringing in the ears and not hear much at all, and not faking it.  They may possibly ask you if you have been exposed to much noise in the past 24 hours or so.  

    I think too much alcohol the night before can affect your test also.  

    I never recommend any hint of faking, or fraud.  It will likely catch up to you, with very bad results.  Just tell em the truth, and you should be fine.  I also dont recommend getting drunk the night before the hearing test, either, to get more benefits.  That stuff can catch up to you.  

     I sleep well at night in no small part because I have no fear of VA doing a re exam and reducing my benefits, because I simply tell the truth each time.  If I took a hearing test 20 minutes after listening to very loud music, I would tell them so.  (except I hate loud music, so I would not do that at all). 

Edited July 23, 2022 by broncovet

[Vync]

On 7/22/2022 at 11:49 AM, Whodat said:

Lots of cases that I have read is pretty much lowering my morale level.  In example, I had an event or injury while in service, a current diagnosis as well as a diagnosis while in service. I have read one denial case that stated that disease and or injury did not manifest within 1 year after service. My retirement physical did not include x rays even though I did identify my symptoms. How does VA knows if it did or didn't manifested within a year after separation?

The number of denials and lowball ratings are surprising. They also treat chronic treatment the same way. Periodic treatment without being noted as chronic means denial. At the time I left service, I was taking daily inhaled steroids for my asthma treatments. However, after getting out, I got my meds from a local doc in the box and the records showing continues use are long gone. I had no idea of any rating criteria, so I did not know I should have got a 30% rating instead.

[Vync]

On 7/22/2022 at 12:15 PM, broncovet said:

The trouble with reading the decision alone, is that you did not get to read the facts of the case, that is, the Veterans cfile.  There is a lot of interpretation going on here, and there is a wide variety of opinions.  

The good part about BVA:  You can appeal it, if unjust, pretty much with an attorney at no cost because of EAJA..  I have done this multiple times, won a remand each time, and eventually got more benefits. 

Still, of course, its a time burner.  

Absolutely correct! I had no idea what they would look at, what rating criteria was, or anything. You can appeal it if you recognize an issue within the appeal window. However, you have to know what to look for and the VA does not advise vets in how to do that.

 

@WhodatIt took about 5 years before my initial claims were completed. I was just happy to have won. And then my VSO told me not to rock the boat. It wasn't until about 2008 when I found Hadit that I started to learn how the VA claims process actually works. Going from 90 to 100 is a struggle and should not be designed to be that difficult. With your doc's recommendation that you not work, have you filed for IU yet?

@pacmanx1Yep. I didn't get my first C&P exam until the BVA remanded and requested them (two years after I filed initially). Of course, the BVA provided very specific remand instructions which were not complied with in full...

[pacmanx1]

6 hours ago, Vync said:

The number of denials and lowball ratings are surprising. They also treat chronic treatment the same way.

You know this is very strange, while in the military my condition was treated as chronic and post service it remained the same. My initial VARO claim was denied and then the BVA remanded my claim for new development and adjudication but when the VARO denied my claim again, the BVA decided to deny it also but when my claim went to the CAVC and they did a joint remand back to the BVA, this time the BVA had a change of mind and stated that the evidence was in my records and my statement was considered consistent and credible. WTH, they waisted over a decade to finally acknowledge what I was claiming and awarded my disability directly related to my military service.

[Whodat]

On 7/22/2022 at 12:57 PM, pacmanx1 said:

At the present time, I believe the VA already announced that they will not meet their end of year 2022 goal of eliminating all the legacy appeals. With that said most of the BVA decisions are either denials or remands. It seems that the BVA tries to give the VARO a second chance by remanding claims hoping they will get it right, don’t forget that there are times when the BVA will grant claims or decisions but still remand them back to the VARO for rating purposes or to assign them effective dates. It is what we call the hamster wheel.

I have had one claim continuing for two decade and now it is going back to the CAVC. Depending on what evidence is in the records, you will never know exactly what helped the claim get granted or what caused the claim to be denied. In my case the evidence was always sitting there in my records, but it was not until I made extra copies and submitted them to the BVA before someone decided to review my entire records but now, I am doing the exact same thing for my rating percentage.

I see that you posted several times about lowering the morale level, IMHO (IN MY HUMBLE OPINION) you have to learn how to encourage yourself. Get angry, get upset but channel all that energy up and begin focusing on the evidence and the regulations you need to bett

16 minutes ago, pacmanx1 said:

You know this is very strange, while in the military my condition was treated as chronic and post service it remained the same. My initial VARO claim was denied and then the BVA remanded my claim for new development and adjudication but when the VARO denied my claim again, the BVA decided to deny it also but when my claim went to the CAVC and they did a joint remand back to the BVA, this time the BVA had a change of mind and stated that the evidence was in my records and my statement was considered consistent and credible. WTH, they waisted over a decade to finally acknowledge what I was claiming and awarded my disability directly related to my military service.

So why is it that when Vets have to get an IMO/IME, the author has to state that they have reviewed  the vets smr, why can't BVA, or VA say the same? I understand of the quick scan but some documents are hand written.

So what I am gathering is that a promise had been made but the promise can't be fulfilled. Gotta love it.