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.

 

[Rattler]

What about filing a motion for Mandamus. (motion for extraordinary relief) It might move it along faster.

[pacmanx1]

I currently have one appeal at the BVA and one appeal going back to the CAVC. Each appeal has the potential to award the SMC-S benefit that I seek. These are separate and different disability appeals that have been pending for quite some time. Both appeals already have positive medical opinions and I feel that it is just a matter of time. The BVA just awarded my recent EED and therefore would make it kind of hard to request any type of expedited assistance. 

 

[Dustoff1970]

In 2000 I filed several different types of claims at near the same time for CUE, Section 1151 VA Injury claim, P&T request,  and an Administrative  petition for Equitable and Extraordinary Relief  directly to the VA Undersecretary For Benefits with a copy sent  to the VA Secretary.

I included in the Extraordinary Relief claim elements of my deliberate VA Injury and CUE contentions.  The actual CUE claim and Injury Claim was of course filed directly with the VARO.  

The Equitable Relief petition got the immediate attention of the VA Secretary and they sent it to the VARO for quick adjudication plus a positive letter to me.   Within a few weeks I received a P&T designation for my TDIU rating. 

The CAVC in 2003 agreed with one of my CUE contentions on the VARO failure to adjudicate me for an implied TDIU claim prior to 98 and their remand instructions ordered the VARO to adjudicate me for this inferred claim. 

The VARO about same time of CAVC decision awarded me about 5 year back pay for TDIU.

The VA Injury claim was denied and I did not appeal as no need to continue.

I also in 2000 sent many letters to U.S. Senators and Congressmen complaining of my deliberated medical mistreatment and abuse I and other Vietnam vets received from Temple, Texas VA doctors from 1985 to 87 and most replied to me with letters of concern and copies sent to VA Secretary and VA health care officials in Central Texas forcing those officials to reply to each senator and congressman/woman. 

Bottom line is I played outside the sand box and got their immediate attention and most of what I needed.  It works. I felt I had nothing to loose and a lot to gain and had lots of free time on my hands.

 

To argue against success is to blow against the wind.

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

Edited November 9, 2023 by Dustoff1970

[pacmanx1]

Long story short, these appeals are denied claims are late 90s that the VARO deemed were NWG (NOT WELL GROUNDED). After my claims were denied, I continued to file claims until I was granted/awarded 100% schedular P & T. I had several claims on appeal and the VARO contacted me several times to see if I would withdraw my appeals and of course I said I would not.

Knowing that my appeals pre-dated my 100% schedular rating, I figured that I could get the VA to address my medical records that were completely overlooked and or ignored, and I wanted the VA to recognize my original date of claims.

Here is what I cannot prove, it makes no sense in me accusing the VA of manipulating my original evidence and claims, but my denied claims were later granted. My claims are now rated service connected and most of my appeals have been granted and awarded an earlier effective dates. The last CUE claim/appeal I filed, the VA reopened my claim, sent me to get an updated medical opinion (which was Positive with unadjudicated VAMC Medical Records) but the VARO denied my request ignoring the medical examiner’s opinion and report.  

My record has proved with multiple decisions that the VA had enough evidence in my original claims to award my benefits, but they were denied causing me to lose everything which only pissed me off. I had a VARO supervisor look me straight in my face and lied to me. He said that there was nothing in my records that warranted service connection and I ended up homeless.

This pissed me off so much that I started to read 38 CFR part 3 and 4. I wanted to know exactly why the VA denied my claims and I wanted to prove them wrong. My call sign or username was honestpete992 and changed to Pacmanx1 because I used to work in S-1 the PAC Office in the military. My brain does not always work but when it does, I want to make sure I get the benefits that I should have had all this time.

 

[Dustoff1970]

It is a long shot, but you can always file another new CUE claim stating that the VARO failed to consider the evidence before them in your records and site the evidence that was in their records and they did not consider.  You will also have to site some different 38CFR regs and 38 U.S. Codes that they failed to consider and/or misinterpreted in addition to the ones you used in the first CUE claim. Just speculate like I did but make it close.

Use your imagination with different wording of the new different CUE claim or they may refuse to adjudicate and just ignore it.  

Evidence they failed to consider but was a matter of your official records could be national archives, VA records both medical and non-medical and of course military service records and private medical records, etc.  Just like I did you can make a guess and list the evidence you think they failed to consider in addition to the evidence you listed in the first CUE.   

The CAVC and FED Court ruled that evidence in the above records but not before the VA raters at time of decision was actually "constructive receipt" and should have been used in adjudicating your claim. It worked for me from 2000 to 2003.

All you have to lose is the time it takes to formulate and type the new CUE claim.

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

 

 

[pacmanx1]

39 minutes ago, Dustoff1970 said:

It is a long shot, but you can always file another new CUE claim stating that the VARO failed to consider the evidence before them in your records and site the evidence that was in their records and they did not consider.  You will also have to site some different 38CFR regs and 38 U.S. Codes that they failed to consider and/or misinterpreted in addition to the ones you used in the first CUE claim. Just speculate like I did but make it close.

Yes, I am aware and that is how I won my unadjudicated decision and was awarded my first and second 1998 effective date. As stated, that is the CUE that is at the BVA pending right now. No longer a long shot because the VA reopened my CUE claim and sent me to a medical exam and the examiner wrote in the VAMC medical treatment records in my DBQ that supports my argument that my onset date matches my original claim that was denied, and that same disability is now service connected. Keep in mind that once the VA reopens a claim, the VA must reconsider/re-adjudicate all the evidence of record both old and new. Since this evidence was always in my records, it should generate a new effective date and change my overall rating decision.