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.

[Mr cue]

An I will add my last point to what cause delay.

After a remand from the court or bva.

The VA will tell veterans they have to do new nod va form 9 to continue there appeal back to the board.

They will take that new nod va form 9 an open a new appeal stream.

Which changes your docket number.

You could have a 2018 docket number and now you have a new one the date of the new VA form 9

This isn't how it work a remand is to be return to the bva at the front of the line.

I tell all veterans to look at there docket number to see if it change this adds all those years of delay.

They try to do it with my cavc remand I had to do a writ.

An I still end up with 4 different decision on a cavc remand all with different docket numbers.

The cavc had to merger all my case back with the cavc remand docket number Because the VA refuse.

 

[Lemuel]

14 hours ago, broncovet said:

The short answer to "How long will it take VA to _________" is always:

In other words, nobody knows.  If you can figure out precisely how long it takes VA to get stuff done, stop wasting your time with VA, and buy lottery tickets instead, as you probably have a gift at foretelling the future.  

    To speed up your claim, you could consider dropping your hearing request, or perhaps allowing a video hearing or something that may go faster.  

     Im not a fan of hearings, but thats because I dont hear well and I would rather go to the dentist and get my healthy teeth drilled out without pain med than go to a hearing.  (that I probably could not hear what they say).  It is purely a source of frustration for me.  

     However, some Vets do well with hearings.  But, they pretty much always delay stuff.  

     I see it that hearings serve pretty much a single purpose:  To look at the file and compare with evidence you have, and add any missing evidence.  

    If you are confident that your cfile (held by VA) is consistent with your medical records, then a hearing may not be necessary.  

    The reason is VA rarely cares about what we think anyway.  I think Va should award all vets who apply SMC R2, and backdate it to year 1880.  But I dont think they think that way.  So I avoid expressing my opinion(s) to VA employees.  Instead of my opinions (worthless) I often cite "Dr. Simpson, in an exam dated 11 Oct. 20 opined xxxxyyyy".  That is medical evidence that matters, and my opinion does not matter.  

    They can easily dismiss my opinions, but its much harder for them to dismiss a regulation, or competent medical professional opinion.  Since my opinion does not matter, I keep it out of my filings with VA as much as possible.  

    Mostly, VA likes to use our opinions against us:  "BUT YOU SAID, in a letter dated 12 nov. 1992...."..and then use what we said against us.  

Thanks, you are right.

My problem is much of the evidence has been removed from the C&P file and can only be gotten back by obtaining a copy of the "hard copy" medical file from the VA Medical Division that was never scanned into the system and is apparently in that 5 plus mile-high stack of disorganized record the VA OIG found that had not been scanned yet.

My files were destroyed by a flood and a computer virus.  The VA is responsible for maintaining the medical files and providing them to the Benefits Division.

I think that is the delay in this instance.  I wrote a brief and filed motions, including motions to the VARO Directors responsible for specific records to subpoena them from the relevant VAMCs.  Their problem is tracing the last VAMC to hold and retire my hard copy medical file.  From 1990 to 2012 my time in the U S was spent homeless between the west coast and east coast with family and friends.   I moved around a lot.  I do not know if the file was archived without scanning by the San Diego VAMC, the Washington, DC VAMC, the West LA VAMC, the Sheridan WY VAMC, the Cheyenne, WY VAMC, the Baltimore VAMC or the Denver VAMC.

I pointed out the documents in the file that prove what I need exists in my brief and motions.  All I can do is wait and write a letter to the VA OIG asking for a response regarding the ability to find the documents and if not recoverable then ask the BVA Judge to find as fact what I remember as being in those documents.

Letter to VA OIG is my today project. 

[Lemuel]

5 hours ago, Mr cue said:

An I will add my last point to what cause delay.

After a remand from the court or bva.

The VA will tell veterans they have to do new nod va form 9 to continue there appeal back to the board.

They will take that new nod va form 9 an open a new appeal stream.

Which changes your docket number.

You could have a 2018 docket number and now you have a new one the date of the new VA form 9

This isn't how it work a remand is to be return to the bva at the front of the line.

I tell all veterans to look at there docket number to see if it change this adds all those years of delay.

They try to do it with my cavc remand I had to do a writ.

An I still end up with 4 different decision on a cavc remand all with different docket numbers.

The cavc had to merger all my case back with the cavc remand docket number Because the VA refuse.

 

Yes, I am waiting for a new docket number.  As advised by the BVA Judge during my 2016 hearing, that I would probably have to appeal back for a new hearing because of the VARO's handling of the remands.

I was hoping to get the same BVA Judge.  If it were a civil court, the case identification would be the same and the judge would be the same.

I made the mistake of waving (finale fact finding--I forget the exact question before the hearing started) making some remands to VARO necessary instead of the Judge deciding upon the evidence available. 

I believe, if you recognize you have a good judge, it is necessary to withdraw that waver and ask the judge to investigate the facts with the assistance of the VA OIG to get it out of the hands of the ROs and DROs that only copy from the last decision in the record instead of looking at the whole record as required to save time causing a repetition of errors.  Even worse now with the new C&P set up that does the same thing with exams.  Anyway, I will try that this time.

In my brief, I stated the facts as I find them with references to the "Record Before the Agency" (RBA) not wanting to get a new effective date with new evidence.  Although there is new definitive evidence, there is evidence enough presented in the previous BVA hearing and decision and was but is not now in the benefits C&P file with evidence in the RBA of its prior existence going back before the 1990 BVA Decision.  (No CAVC then).

I have submitted a motion to re-open all prior decisions through 38 CFR 20.1000.  That, I hope, will get the EED I am after for myself and others with organic brain injuries given the provable deceptions by the VA and the military in minimizing the recordation of the severity of organic brain probable residuals in their summaries of inpatient care which I can prove with my own summary of hospitalization and with the easily obtainable of summaries of hospitalizations of cerebral malaria victims in Vietnam.  The summary for cerebral malaria victims only included the rehabilitation period.

Because many organic brain residuals include anosognosia, the victims cannot be held accountable for not recognizing their lost abilities aka disabling affects.

[broncovet]

It may be in your best interest to get those files (evidence) for yourself..dont depend on VA doing something for you that will cost them money and benefit you.  

Write to those places, or call, and ask them for a copy of those records you feel may help your case.  You may have to pay for postage/copying, depending on where they are at.  

Then, if you do get some (favorable) evidence, you can resubmit it as new and material evidence to a "pending" claim, under 38 cfr 3.156b, or new service records under 3.156c. 

In the case of a pending claim, when you submit new evidence it should go back to when you first filed.  

It would probably be well worth it for you to obtain your own records, and dont count on VA to help you get them.  

[Lemuel]

17 hours ago, broncovet said:

It may be in your best interest to get those files (evidence) for yourself..dont depend on VA doing something for you that will cost them money and benefit you.  

Write to those places, or call, and ask them for a copy of those records you feel may help your case.  You may have to pay for postage/copying, depending on where they are at.  

Then, if you do get some (favorable) evidence, you can resubmit it as new and material evidence to a "pending" claim, under 38 cfr 3.156b, or new service records under 3.156c. 

In the case of a pending claim, when you submit new evidence it should go back to when you first filed.  

It would probably be well worth it for you to obtain your own records, and dont count on VA to help you get them.  

The problem appears to be the PROGRESS NOTES of my treatment in the Seizure Clinic in West LA VAMC from September of 1990 to end (5 or 6 months) and the PROGRESS NOTES of my treatment in the Back Clinic in West LA VAMC from April of 1991 to end (a year or more) appear to unrecoverable except for 2 pages of Seizure Clinic and 1 page of Back Clinic in the IPTR from August 1991 to mid-January 1992, suicide ideation because of pain.

There are two possible locations of these records. 

1.  Un-notified member of research for which West LA VAM&RC along with UCLA Medical School lost their research accreditation in the mid-1990s for a couple of years.

2.  The reported by the VA OIG 5-mile-high stack of unscanned records which appear to be disorganized and inaccessible on an individual basis, probably because they are contractors such as the one that scanned my C&P file in Denver, CO for scanning and some of the contractors have become defunct leaving the files unaccountable for and lost.

My only hope is relying on the proof in the C&P file that the records should exist, my wife's statement and the inability of the VA Medical Division to provide them, to put them in the category of the NPRC files and allow my recollection (though failing because of age and TBI residuals) to carry the day for me.  There are two IPTR records that will be helpful in correcting the diagnosis of "pseudo seizures" to temporal lobe epilepsy and new research changing back the diagnosis of "drug effect" from pseudo seizures to temporal lobe epilepsy to the pre 1990s in Neurological Text Books.  The 2010 research cause all of the Neurological Text Books I could find on the University of Wyoming's Law Library server 2015 editions to the pre 1990s editions.

I wish to thank everyone for their posts on this thread which causes me to think through my approach to my hopefully upcoming BVA Hearing and amendments and motions I may make to my filings before the hearing to the BVA.

Answering Bronco's post makes me realize I need to enter another motion to set the facts on this issue.

[Lemuel]

On 8/16/2022 at 5:18 AM, Tbird said:

How long will my claim take at BVA? To long and not soon enough. Like a lot of answers you find as you navigate the VA Claims process, this answer and others often suck.

 From Woods Law How Long Will It Take to Appeal a VA Decision? -  Updated Aug 2022

Thank you for your response, Tbird.  The Woods Law page is very helpful, and I submitted a request for their help on the articles page.

I am in the Legacy Appeal mode because of the dates in question and a CAVC decision recommendation to get the facts decided.

I have requested the re-opening of all of my previous BVA Decisions and my claims by motion based on problems with evidence not being provided by the VA Medical Division and ROs limiting the scope of examinations causing physicians to refuse to provide ask for examination of issues and lack of reporting complaints during examinations, especially the early audiograms where the box for tinnitus was ignored even though I had always complained of tinnitus during audio exams and because of the unlawful limiting of examinations per CAVC precedence and the requirements of 38 CFR 4.42.

If they take me on, I will ask Woods to try to get the BVA, by motion, to remand without a hearing, the remainder of my issues to the Director, Compensation Services for initial "extra-schedular" investigation as to the facts and medical malpractice decision. 

The DRO at the Central Office who did my previous TDIU extra-schedular claim, did a thorough records brief to the Director who then recommended the EED for TDIU to September of 1985 last day of a full time employment even though my unprocessed extra-schedular claim was dated in 1987, 2 years later and I had had above poverty level part time employment as an accountant working for a CPA business manager of a Hollywood Actor, whose books were up to me to keep. Even putting in full time hours for the part time pay I was unable to keep up the way previous employees had apparently done per the records as they were when I took them over.