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Has anyone ever gotten the BVA to vacate a BVA decision under 38 CFR 20.1000?  (also want to check if new tags will search this question to HADIT)

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Not exactly, no.  Its not like the BVA does not make mistakes.  Did they reduce your rating, as a result, increase it, or did it stay the same? 

38 cfr regs do not exist "in isolation", but other regs infulence them also.  

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No.  I just requested previous BVA Decisions be vacated because the VA Medical Division did not provide evidence that can be proved to exist on multiple requests.  The evidence was either removed from the C&P file or never provided by West LA VARMC.

Evidence of an 1151, mistreating confirmed epilepsy (partial and complex partial seizures) with Tegretol on two counts for more than 5 months after an MVA that caused by an "altered state of consciousness" (an atypical absence seizure).   Page 983 of the 1990 Edition of the PDR cautions against use of Tegretol for atypical absence seizures and for a sensitivity to amitriptyline, which I have a sensitivity to that is in my record 3 years prior to the start of using Tegretol, because the temporal lobe epilepsy would become worse.

The result of the treatment was that I was diagnosed as having pseudo seizures because I did not respond to Tegretol, the drug of choice at that time for grand mall epilepsy.

I had also requested the spinal MRI and X-rays that show the obvious relationship of the back injury to the MVA in a picture that was not in the radiographic reports.  The "possible" temporal lobe epilepsy was evidenced on previous EEGs from my TBI beginning in 1985, prior to the 1990 MVA.

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 Someone said (probably a law firm)  that BVA decisions are rarely vacated, but they can be vacated with the CAVC.  Overcoming this, on a finalized decision, will be a tall hurdle to jump over, very tall.  

BVA can vacate their own decisions, upon request from the claimaint, but again that would be exceptionally rare.  

Unfortunately its the Veteran's burden to "prove" his case with medical evidence.  

You can supply your own medical evidence, if you dispute that with c and p examiners, or vA doctors, by hiring a doctor to refute the VA's medical evidence.  But you can not force VA docs to give you a favorable exam.  

You can file CUE, if the old decision's meet the CUE criteria.  (And I have no idea if they do or not).  

You can challenge the competency of a medical examiner, if you feel his/her exam was inadequate.  

CCK law explains how to challenge examiner competency:

https://cck-law.com/blog/how-to-challenge-va-cp-exam/

The best way to dispute a BVA decision is to timely appeal it to the CAVC.  However, after 120 days, the BVA decision becomes final, and overcoming the finality means you need to meet the criteria for CUE.  

 

 

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3 hours ago, broncovet said:

 Someone said (probably a law firm)  that BVA decisions are rarely vacated, but they can be vacated with the CAVC.  Overcoming this, on a finalized decision, will be a tall hurdle to jump over, very tall.  

BVA can vacate their own decisions, upon request from the claimaint, but again that would be exceptionally rare.  

Unfortunately its the Veteran's burden to "prove" his case with medical evidence.  

You can supply your own medical evidence, if you dispute that with c and p examiners, or vA doctors, by hiring a doctor to refute the VA's medical evidence.  But you can not force VA docs to give you a favorable exam.  

You can file CUE, if the old decision's meet the CUE criteria.  (And I have no idea if they do or not).  

You can challenge the competency of a medical examiner, if you feel his/her exam was inadequate.  

CCK law explains how to challenge examiner competency:

https://cck-law.com/blog/how-to-challenge-va-cp-exam/

The best way to dispute a BVA decision is to timely appeal it to the CAVC.  However, after 120 days, the BVA decision becomes final, and overcoming the finality means you need to meet the criteria for CUE.  

 

 

What happens when you can prove items have been removed that were favorable to you when they were in the C&P file though you no longer have a copy?  (Example the NPRC fire or shredding by VA personnel)

I hope I have adequately challenged the competency of the examinations. 

We have a FOIA right to medical evidence recorded by the DVA Medical Division and that examinations done are complete per the remands in my BVA Decision of 5/17/2017.

Problem is the incomplete recordings of radiographic reports and other tests.

I have challenged some of those also.

There should be sufficient evidence in my C&P file for the 1151 without the FOIA requested PROGRESS NOTES forms.  We will see.  I will let HADIT know the results when they are in.

I will finish my submission for a review without a BVA hearing before the end of the month.  I expect the decision to take some time though I know the BVA is working on it because of calls I have received.

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The way I see it you can ask bva for reconsideration.

The cavc court is the only one that can vacated a bva decision I believe. You have a 120 day from the decision for this.

 

Or you can try to reopen the claim with the newly found medical records. Which can also get you a effective by the date of the records.

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If you can prove the "items have been removed", see Cushman vs Shinseki, where the VA altered the Veterans file and deleted his claim.

 

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48 minutes ago, broncovet said:

If you can prove the "items have been removed", see Cushman vs Shinseki, where the VA altered the Veterans file and deleted his claim.

 

Thanks for the reference.  This is along the lines I am working.

For Mr. CUE,  38 CFR 20.1000 states the BVA can vacate its decision on its on or on a request by the claimant.  Because the BVA is the sole fact finder and the only way to get the CAVC to overrule on a fact is to find that it is an "arbitrary and capricious finding of fact" by the BVA which is a very high bar. 

You will have much better luck asking for an extra-schedular decision from the Director, Compensation Services.  That gives a review by a Central Office DRO that does not want to be overturned in his/her review before sending it up the Director which means at least one more review before it reaches the Director's desk. 

Politics play at that level.  Congressional requests for review after the fact usually mean the Congressman's Office has reviewed and believes the veteran should have been given the benefit of the doubt.  Especially if, as in my case, you have a very favorable CAVES report (SSDI) in your file.

I have already been there once getting an EED for TDIU back to 1985 awarded in April of 2020.  I may have worn out my welcome, but I think there is enough in my record to get temporal lobe epilepsy awarded and an 1151 awarded for mistreatment of the temporal lobe epilepsy after the confirmation in 1990.

I will let the board know how it turns out.  I believe I was taken out of my most productive earning years by the mistreatment following a 1985 recommendation that I be treated with Dilantin by California Rehab Neurologist.

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