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.

[Lemuel]

On 8/15/2022 at 2:28 PM, Whodat said:

https://cck-law.com/blog/cck-law-takes-legal-action-against-department-of-veterans-affairs/

Thanks for the link.  It is not clear what they are filing or if they are filing.  There are no "case file" records quoted in the article.  I believe it is just an advertisement for new slam dunk cases for which they can get low rewards (20% of simple but low back payment awards or cases like my BVA remand for extra-schedular TDIU that got the attorney $80,000.00 plus on my $400,000.00 plus Director of Compensation services recommended award.

It appears they are filing mandamus appeals on behalf of somebody but who?  What are the case identities?  Failure to let you look up what they are doing and what response the Court is giving them leaves much to be desired.  I suppose they could be protecting their cases from being joined with other clients from other firms and presenting pro se claimants like me from petitioning to join their cases slowing them down a bit.

If they actually have filed mandamus complaints and are successful, it will help all of us though it appears they are just trying to speed up their AMA appeals which they get fees deducted from veterans.

[Vync]

@LemuelDon't forget that the kind of BVA hearing you request can have a bearing on how quickly they can schedule it. The direct review option is "supposed" to be the fasted. There's no hearing and they are "supposed" to have it reviewed within one year. I could not take the evidence option because my appeal is a CUE from years ago, so I am not allowed to submit any new evidence outside of my testimony describing the CUE. I chose the hearing option this time. Despite the DRO with the HLR verbally admitting the VA made an obvious CUE error, someone in QA felt otherwise and ignored the laws/regs in effect at the time. I previously took the hearing route back in the 90s. At the time they had a travelling board who would go between VARO's and hold hearings. Back then there was no option for a video conference.  Back then, it took more than a year each time to get the board to review things. I guess that hasn't changed all that much...

[Lemuel]

On 8/15/2022 at 2:28 PM, Whodat said:

https://cck-law.com/blog/cck-law-takes-legal-action-against-department-of-veterans-affairs/

I searched Chisholm, Chisholm & Kilpatrick; Chisholm and CCK on the CAVC docket.  I find no cases which the represented under any of those names.  As I suggested above, they are probably a scam praying upon veterans who are not aware of just waiting will get their slam dunk claims with back pay and not having a firm like CCK taking 20% from them.  They apparently do not handle tough cases or have not filed what they are claiming to have filed.

 

On 8/15/2022 at 2:28 PM, Whodat said:

https://cck-law.com/blog/cck-law-takes-legal-action-against-department-of-veterans-affairs/

I am posting a chat here that I copied from the CCK article site.  It appears they are running a scam operation preying on unsuspecting veterans that could wait and not have to pay the 20% from their back payment awards.  They are unwilling to name any attorneys that can be searched on the dockets or through PACER for any court.  The article seems to be a scam advertisement to suck in veterans for representation.

If you have them as a representative, I suggest you cancel their representation and wait for your slam dunk award.  They will probably not represent anyone whose claim will require any attorney work other than simple claims filing that you could do yourself online at VA.com.

"

Chisholm Chisholm & Kilpatrick LTD (Privacy Policy)

Ashley: Hello, thanks for contacting Chisholm Chisholm & Kilpatrick LTD. My name is Ashley, may I have your name?

You: Do you have a list of your attorneys?

Ashley: I am sorry I will have to get this information for you. || Can we email or text you the answer to your question? I can also connect you to our office by phone.

You: Do not post your email address.

Ashley: Thank you for your contact information. May I have your full name, please?

You: Lemuel C Bray. Your firm denied representation of me. I tried to search the docket for CCK under various names at the CAVC to see the progress of cases filed in the article I am looking at. No cases ever filed on any of the heading names at the CAVC according to the search. Are they a scam organization preying upon unsuspecting veterans for slam dunk cases to get 20% of what the veterans would have gotten anyway without their help. I experienced such an act by another firm that took $80,000.00 out of my $400,000.00 back remanded TDIU claim with little work then refusing to do the rest of the claims that would require more work. And since I do not find any cases on the CAVC docket, I will inform Hadit.com they are the same unless I can get the case identities of the cases they claim to have filed.

Ashley: Thank you, Lemuel. Please hold for one moment while I review your information.

Ashley

: 

Thank you for your patience. Are you seeking legal representation?

No

Ashley: Thank you for contacting us. Unfortunately, we are not able to assist you at this time, but should you be seeking legal representation in the future, please feel free to reach out to us. Thank you!

System: The chat session has ended."

[Lemuel]

10 minutes ago, Vync said:

@LemuelDon't forget that the kind of BVA hearing you request can have a bearing on how quickly they can schedule it. The direct review option is "supposed" to be the fasted. There's no hearing and they are "supposed" to have it reviewed within one year. I could not take the evidence option because my appeal is a CUE from years ago, so I am not allowed to submit any new evidence outside of my testimony describing the CUE. I chose the hearing option this time. Despite the DRO with the HLR verbally admitting the VA made an obvious CUE error, someone in QA felt otherwise and ignored the laws/regs in effect at the time. I previously took the hearing route back in the 90s. At the time they had a travelling board who would go between VARO's and hold hearings. Back then there was no option for a video conference.  Back then, it took more than a year each time to get the board to review things. I guess that hasn't changed all that much...

Thanks for the info, Vync.  I am in the same position with part.  I have a medical malpractice claim and a denied to exist I-9 from 1994 when we wrote them in letter form.  The unprocessed I-9 is more clearly a CUE.  Coupled with Denver VARO's 1998 denial of its existence to the VA OIG.

I am thinking of going extra-schedular with mine by motion the BVA.  They may grant the motion and refer to the Director, Compensation Services to get it out of their backlog since the DVA did not process the remands as remanded and I can provide clear evidence of that in the motion.

[Whodat]

51 minutes ago, Lemuel said:

I searched Chisholm, Chisholm & Kilpatrick; Chisholm and CCK on the CAVC docket.  I find no cases which the represented under any of those names.  As I suggested above, they are probably a scam praying upon veterans who are not aware of just waiting will get their slam dunk claims with back pay and not having a firm like CCK taking 20% from them.  They apparently do not handle tough cases or have not filed what they are claiming to have filed.

 

I am posting a chat here that I copied from the CCK article site.  It appears they are running a scam operation preying on unsuspecting veterans that could wait and not have to pay the 20% from their back payment awards.  They are unwilling to name any attorneys that can be searched on the dockets or through PACER for any court.  The article seems to be a scam advertisement to suck in veterans for representation.

If you have them as a representative, I suggest you cancel their representation and wait for your slam dunk award.  They will probably not represent anyone whose claim will require any attorney work other than simple claims filing that you could do yourself online at VA.com.

"

Chisholm Chisholm & Kilpatrick LTD (Privacy Policy)

Ashley: Hello, thanks for contacting Chisholm Chisholm & Kilpatrick LTD. My name is Ashley, may I have your name?

You: Do you have a list of your attorneys?

Ashley: I am sorry I will have to get this information for you. || Can we email or text you the answer to your question? I can also connect you to our office by phone.

You: Do not post your email address.

Ashley: Thank you for your contact information. May I have your full name, please?

You: Lemuel C Bray. Your firm denied representation of me. I tried to search the docket for CCK under various names at the CAVC to see the progress of cases filed in the article I am looking at. No cases ever filed on any of the heading names at the CAVC according to the search. Are they a scam organization preying upon unsuspecting veterans for slam dunk cases to get 20% of what the veterans would have gotten anyway without their help. I experienced such an act by another firm that took $80,000.00 out of my $400,000.00 back remanded TDIU claim with little work then refusing to do the rest of the claims that would require more work. And since I do not find any cases on the CAVC docket, I will inform Hadit.com they are the same unless I can get the case identities of the cases they claim to have filed.

Ashley: Thank you, Lemuel. Please hold for one moment while I review your information.

Ashley

: 

Thank you for your patience. Are you seeking legal representation?

No

Ashley: Thank you for contacting us. Unfortunately, we are not able to assist you at this time, but should you be seeking legal representation in the future, please feel free to reach out to us. Thank you!

System: The chat session has ended."

Wow. How interesting. What people would do to scam people for money. 

Thanks for the clarification 

[Lemuel]

23 minutes ago, Whodat said:

Wow. How interesting. What people would do to scam people for money. 

Thanks for the clarification 

I looked up Woods on the CAVC.  The firm in the post by Tbird.  There is one Woods attorney case represented by an Erika Woods in 2008 on the Docket Search.  The rest are pro se cases or attorneys representing themselves.

Searching my last name, I find I am also listed as the attorney in the cases I filed for myself when I was less informed and thought you could appeal fact findings that were clearly wrong in the record.  The only way you can do that is to claim the fact finding BVA Judge was "arbitrary and capricious" in the Judge's fact finding which only gets you a remand to the BVA to clarify the facts in application to the law.

To search an attorney, which you are thinking of signing a fee agreement with to see how they have done or if they have done anything at the CAVC, use this link:  Case Search (cavc.gov)

Not many cases go to the CAVC that are not taken there in pro se and most of them are denied because the CAVC cannot rule on facts.  Only on law and application of law to the facts.

Some notables on this site have been there and done that.  As you see from their posts, they usually know what they are talking about.  I have been learning a lot from them.