All BVA Judges are not agreeable, BVA judge partially denied JMR Review.

[pacmanx1]

Over the past four (4) years I have won three BVA decisions, the first granted me an Unadjudicated claim/appeal.  The second granted me an Earlier Effective Date (EED) of my service-connected disability. The third granted me an Earlier Effective Date of TDIU.

The issue I have now is that I was rated 100% schedular P & T before this rating and when the judge granted my appeal and awarded an EED of TDIU, the judge failed to address an SMC-S consideration even after the IMO stated that my symptoms preclude employment. This was a new separate claim/appeal, and no other disability was included in my medical opinion. The judge’s decision stated that my symptoms preclude employment but there was no mention of SMC-S. This was a JMR (JOINT MOTION FOR REMAND).

The only medical opinion I have in my records is that my symptoms preclude employment, but the BVA judge took it upon himself to state that my symptoms do not preclude employment. My appeal is headed back at the CAVC trying to get another remand because the BVA decision failed to address their own medical examiner’s opinion that my symptoms preclude employment.

The VA/BVA has a duty to maximize the veteran’s benefits, the BVA did maximized my rating percentage but failed to maximize my overall benefits. The records should show that I am rated 100% schedular P & T with a separate TDIU rating which means the VA should have awarded me SMC-S. The BVA judge decision refused to comply with the JMR to review the entire record to determine the maximum rating.

 

[Dustoff1970]

To begin with if you meet the minimum criteria  for SMC-S  then I would go ahead and file for it and see what happens.  If it has been denied by VARO or BVA then appeal that with good arguments.  You can also remind the BVA and VARO of the appropriate regulations/laws that require them to assume the vet is filing for highest rating possible to include SMC. 

You can also file for a BVA reconsideration of your denied appeal and point out the above information I mentioned.  You may or may not be able to introduce new evidence in your reconsideration request or file CUE on the BVA or appeal directly to the CAVC.

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

 

[pacmanx1]

8 minutes ago, Dustoff1970 said:

To begin with if you meet the minimum criteria  for SMC-S  then I would go ahead and file for it and see what happens.  If it has been denied by VARO or BVA then appeal that with good arguments.  You can also remind the BVA and VARO of the appropriate regulations/laws that require them to assume the vet is filing for highest rating possible to include SMC. 

You can also file for a BVA reconsideration of your denied appeal and point out the above information I mentioned.  You may or may not be able to introduce new evidence in your reconsideration request or file CUE on the BVA or appeal directly to the CAVC.

A single TDIU rating and a 100% schedular P & T rating is well beyond the SMC-S criteria of a single 100% rating or a single TDIU rating plus 60%. Due to the fact that my current appeal is headed back to the CAVC, as far as I know a veteran cannot have the exact claim pending at the VARO and CAVC. Since the VA already have a contracted medical opinion that my symptoms preclude employment, and they were ordered to specifically review these records, by the CAVC, at the present time filing a new claim seems unnecessary.   BVA reconsideration would be a waste of time since it is easier to send it back to the courts to allow them to review the BVA decision. 

[Dustoff1970]

In my pro se dealings with the CAVC court I filed many motions explaining things and requesting actions of the court on my behalf.  Most times the hostile VA general counsel attorneys opposed my motions with counter motions but the single judge was very liberal in granting my request as required by CAVC own rules for pro se vet appellants. 

You may be able to accomplish much with motions filed to the court if your appeal is still open before the court and no final decision rendered.  I still have the original and copies of all my 2003 court motions, decisions, ROA and other documents that is in two file boxes (very heavy). 

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

[pacmanx1]

Since the attorneys and I agreed and the CAVC Judge already signed off on the JMR to review the record for SMC. Would like to see what the attorneys and the CAVC Judge come up with. As stated, the BVA judge went against the medical opinion of record that my symptoms preclude employment to figure how the BVA judge reasoning will/would come in.  Even in relative equipoise of the balance of positive and negative evidence, here there is no negative evidence (no negative medical opinion) except the BVA judge opinion. There is no medical opinion against the already established positive medical opinion that my new disability preclude employment. Keep in mind that this decision awarded me both my EED of my service-connected disability and my EED of my TDIU rating. Which should have raised, warranted, or generated an SMC award or at least a consideration of an SMC award. 

[Dustoff1970]

You may have to file for a 3 judge panel or en banc review as a reconsideration request motion or file CUE against the CAVC and/or BVC or appeal directly to the higher Federal Circuit Court Appeals.  Maybe it is called the Federal Appeals Circuit court???. 

One of your first and primary arguments on any appeal is that the CAVC failed to consider or misinterpreted relevant 38 CFR regulations and 38 U.S. Code laws and of course mention those distinct regs and laws by proper title.  This will always get you in the front door or they may dismiss your appeal as they do not rule on the facts of the case but the laws and regs relied upon by the lower court and/or BVA.

Then As your second contention you can then argue what facts and evidence the CAVC judge/s dismissed or misread, etc.  This was my pro se method I used with partial success in my CUE Appeal before the CAVC in 2003.

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

[pacmanx1]

At the present time my appeal is still with my attorney. Can't do anything until they get a new CAVC decision.