BVA Hearing Delay

[Lemuel]

How long should I give the BVA to set up my new hearing before appealing to the CAVC about the delay?

My BVA appeal is at the BVA but no hearing has been held yet on my 1/31/2021 appeal.

I still have not had my BVA hearing that will include remands not accomplished from my 2017 BVA Decision.  

This time I wrote a brief asking for previous decisions to be re-opened by the BVA based upon errors and maleficent by the RO and DRO, copying errors in past decisions, eliminating favorable to me records in the decisions, lost records and destroyed records that can be proved to have existed by references in VA letters, etc.  The office of the BVA has contacted me twice since receiving the brief.

COVID has delayed my BVA hearing plus the complicated issues of having a lost and destroyed medical record as previously noted.  I understand the delay so have not appealed the delay to the CAVC yet.  I am considering if the delay continues past 24 months, I will appeal the delay to the CAVC under a precedence that the BVA should provide the hearing within 18 months.  (Actually, not a precedence--the precedence is forwarding the appeal to the BVA and the BVA has tried to provide hearings within 18 months)

Biggest issues are:

1. EED TBI to date filed an unprocessed 1987 next of friend claim to the extra-schedular process for all veterans with service-connected organic brain syndromes.  (EED will not affect my compensation but will affect those whose compensation was limited by the limitations in the law passed by congress in the 2008 TBI bill by 11 years for Vietnam vets)

2.  Back pay paid by current rates under the 5th Amendment and 14th Amendment Constitutional guarantees.

3. Re-opening of claims under 38 CFR 20.1000.

4. Treating unscanned medical files as lost as those in the fire at NPRC because of the VA Medical Divisions inability to provide them in a timely manner.  (Within 18 months per precedence)

5. Mistreatment of my temporal lobe epilepsy in 1990 with Tegretol on two counts listed on page 983 of the 1990 Edition of the PDR (Physicians Desk Reference for pharmaceuticals) causing a delay in effective treatment to August of 2015. 

So far, the contact from the Office of the BVA has only been about the documents that are missing from my VA comp and pen file and are not available to the BVA because they are destroyed and must be recovered from the "hard copy" VA Medical Division medical file that has not yet been scanned into my VA medical file causing me to have to give history from memory without my treating physicians being able to look at the actual documented history of being confirmed to have temporal lobe epilepsy and having been mistreated with Tegretol plus the MVA of 1990 caused by the epilepsy that resulted in secondary spinal injury.

The hard copy medical file is probably in that VA OIG found 5 plus mile high stack of unscanned documents and not in an individually priority recoverable organization.

[Dustoff1970]

Having prior experience of filing my own CUE appeal to the CAVC court I don't believe you can file an appeal to the court until the BVA issues you a final decision on your appeal and then you have only 90 days to file.  

You can file a motion to the court requesting the CAVC issue a Writ OF Mandamus requiring the BVA to fulfill its duty to hold your hearing and proceed with the appeals process.  HOWEVER, it is very rare indeed for the court to comply and issue these writs.  But who knows just the act of filling such a court request might speed things up and make BVA angry at the same time as we have recently seen small minded petty bureaucrats are very revengeful.  Be sure to send a copy of your request to BVA.

My comment not legal advice as I not a lawyer, paralegal or VSO.

 

[asdf]

I had a veteran whose appeal was decided by the BVA last month and it took 4 years 2 months.

[Lemuel]

27 minutes ago, Dustoff 11 said:

Having prior experience of filing my own CUE appeal to the CAVC court I don't believe you can file an appeal to the court until the BVA issues you a final decision on your appeal and then you have only 90 days to file.  

You can file a motion to the court requesting the CAVC issue a Writ OF Mandamus requiring the BVA to fulfill its duty to hold your hearing and proceed with the appeals process.  HOWEVER, it is very rare indeed for the court to comply and issue these writs.  But who knows just the act of filling such a court request might speed things up and make BVA angry at the same time as we have recently seen small minded petty bureaucrats are very revengeful.  Be sure to send a copy of your request to BVA.

My comment not legal advice as I not a lawyer, paralegal or VSO.

 

There is the precedence of the CAVC requiring the DVA to process appeals within 18 months when the backlog of getting to the BVA was years. 

While the Appeals courts take longer, they are dealing with the laws not the facts or the application of facts to law.  They are not the decider of facts.

The deciders of facts must be timelier under the 5th Amendment "Due Process".

The BVA is the finale finder of facts in the VA appeals process for the DVA.

If the CAVC was willing to apply the 5th to the VA Benefits Division, I see it as a probability that, citing their precedence, the CAVC may also cause the BVA to get on the ball and fill their attorney vacancies and move up the delayed hearings.

The problem is COVID and COVID long haul.  How long should the BVA get to be back up and running at full strength?  How long should I, as a Vietnam era Veteran, have to wait given the impending backlog from the PACT Act? Will my appeal, because of being complicated by missing files from the VA's mishandling of hard copy files put me in the file, "delay, deny, wait until they die," at 81 years of age?

Much of my appeal is based upon remanded items that the DVA failed to complete from my May 2017 BVA Decision.

How many more are in my position?  Why isn't the age priority working in our cases at the BVA? 

During COVID, I had an at home BVA hearing scheduled.  But when the Office clerk, probably working from home, had a computer that was incompatible with the VA system unless communicating with a Google Chrome Browser.  Because of adverse experiences with Google Chrome security, I refuse to use Google Chrome.  I contacted the IT on the link provided and discovered a sound problem that could have been corrected the way it was for my BVA 2016 hearing by using a telephone for sound for my attorney who was unable to be seen on the video at the Cheyenne VA hearing room.

My computer connection was O K.  My telephone was also O K.  There was no reason to cancel my hearing by the BVA office clerk other than a probable shortage of a Judge to hear me Given the COVID status at that time.  So why did the office clerk just tell me the Judge was sick and unable to conduct the hearing?  Why the bull about a connection problem?

How much delay time should I allow given the COVID back log for all of us waiting?  Godsey v. Wilkie link- NVLSP is the CAVC Decision that prompted the 18 month limit for the RO DRO to certify a claim to the BVA.  Will the CAVC follow suit with a mandamus to the BVA on delays?  How much consideration will they give to the COVID delay excuse?

[Mr cue]

Me personally I don't never requested a bva hearing to many story on how it prolong appeals.

I don't no if they still do them I use to have a dro hearing at the regional office.

It is put in your record an it is complete in half the time.

I think they got rid of the dro hearing with all this new appeal stuff 

 

[Lemuel]

28 minutes ago, asdf said:

I had a veteran whose appeal was decided by the BVA last month and it took 4 years 2 months.

How old was he?  Did he have any financial problems?  How sick was he? These items move those of us over 75 or with one of the other problems up the docket.  And why should he have had to wait that long even if he was employable and not in distress even if he was delayed by those of us jumping ahead of him?

[Lemuel]

4 minutes ago, Mr cue said:

Me personally I don't never requested a bva hearing to many story on how it prolong appeals.

I don't no if they still do them I use to have a dro hearing at the regional office.

It is put in your record an it is complete in half the time.

I think they got rid of the dro hearing with all this new appeal stuff 

 

My file has already been through the DRO decision.  And my experience with the DRO in Pittsburg left much to be desired given he never rendered a decision in 8 years he held the file.  I had to move back to the U S and get my file moved to Cheyenne.  It took 4 more years to get to the BVA from a DRO negative decision and get my presumptive TDIU the DRO would not give me.