BVA Requirements

[Lemuel]

Does anyone know the 38 CFR section regarding BVA Judge referral to Director, Compensation Services?

I recall reading it and I think it was posted here on HADIT.

[broncovet]

The Board of Veterans Appeals regulations are below, but Im not sure about referring a judge to the director of comp services.  

https://www.ecfr.gov/current/title-38/chapter-I/part-20

[Lemuel]

I went through Chapter 20 as best I could before I posted this question.  Maybe I dreamed of the quote.  I thought I downloaded it but if I did I cannot find it now.  So was hoping someone else saw it and remembered it.

If not, I will try Ponton and Ponton with the question on their Wednesday question answering.

[pacmanx1]

3 hours ago, Lemuel said:

Does anyone know the 38 CFR section regarding BVA Judge referral to Director, Compensation Services?

Why and what reason are you looking for this?  I read it to, but I don't think it is about a judge referral. 

eCFR :: 38 CFR 20.904 -- Rule 904. Remand or referral for further action.

Edited March 22, 2023 by pacmanx1

[Lemuel]

8 minutes ago, pacmanx1 said:

Why and what reason are you looking for this?  I read it to, but I don't think it is about a judge referral. 

I have submitted an NOA to the CAVC on a complicated Legacy Appeal.  The BVA Judge took my motion in lieu of the AMA form to say that I agreed in writing to switching to the AMA.  Some real creative reading of my motion as I said in lieu of a hearing, I could be ask questions via email.

The case involves an unprocessed 1974 "next of friend" claim for other veterans with organic brain syndromes, a 20.1000 hearing, (administrative hearing under the rules at that time) and the denial of medical evidence I had requested from the VAHA (in West LA).

I have two issues of law if I can find that quote again and it is as I remember it.  The last paragraph stating that the BVA should refer complicated cases to the Director, Compensation Services.  In 1974 the wording was different.  But I think the one I remember would apply to a current BVA case even though the subject matter would be a response to a SOC from 1974 that was denied to exist in 1998 by the Director,  Denver VARO.

The two issues are the Judges (maybe being misled by a clerk) refusal to address the statement of facts in my Brief and Motions which I went to great detail in because the Appellat Courts cannot address the facts of the Case and my experience of having the Facts taken from the SOC instead of from the record and the hearing with a broad brush approach to where the facts found came from without the detail.

And the referral to the Director, Compensation Services.

[pacmanx1]

10 minutes ago, Lemuel said:

And the referral to the Director, Compensation Services.

Not sure but hope this helps.

eCFR :: 38 CFR Part 4 -- Schedule for Rating Disabilities

It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.

eCFR :: 38 CFR 3.321 -- General rating considerations.

Extra-schedular ratings in unusual cases -

(1) Disability compensation. Ratings shall be based, as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice to the exceptional case where the schedular evaluation is inadequate to rate a single service-connected disability, the Director of Compensation Service or his or her delegate is authorized to approve on the basis of the criteria set forth in this paragraph (b), an extra-schedular evaluation commensurate with the average impairment of earning capacity due exclusively to the disability. The governing norm in these exceptional cases is a finding by the Director of Compensation Service or delegatee that application of the regular schedular standards is impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization.

[Lemuel]

21 minutes ago, pacmanx1 said:

Not sure but hope this helps.

eCFR :: 38 CFR Part 4 -- Schedule for Rating Disabilities

It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.

eCFR :: 38 CFR 3.321 -- General rating considerations.

Extra-schedular ratings in unusual cases -

(1) Disability compensation. Ratings shall be based, as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice to the exceptional case where the schedular evaluation is inadequate to rate a single service-connected disability, the Director of Compensation Service or his or her delegate is authorized to approve on the basis of the criteria set forth in this paragraph (b), an extra-schedular evaluation commensurate with the average impairment of earning capacity due exclusively to the disability. The governing norm in these exceptional cases is a finding by the Director of Compensation Service or delegatee that application of the regular schedular standards is impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization.

These are helpful but not the particular one I was looking for.  Thanks!