BVA Claim

[Ken Dillon]

I have a claim that is currently been sitting at the BVA for direct review for that last 2 and half years. Recently received a email telling what my docket number is, with out asking. So now anyone have a guess when that claim might been by a judge? 

[pacmanx1]

3 hours ago, Ken Dillon said:

I have a claim that is currently been sitting at the BVA for direct review for that last 2 and half years. Recently received a email telling what my docket number is, with out asking. So now anyone have a guess when that claim might been by a judge? 

Unfortunately, we do not know, and guessing is not even on the table. There are a few of us still waiting for more than two full years. I know that VYNC has been waiting for three years unless the BVA has recently made a decision on his appeal, and I am coming close on a full three years waiting myself.

My current appeal is a simple appeal for an Earlier Effective Date (EED), when I filed my claim the reginal office sent me to a C & P exam and the examiner wrote me a favorable medical opinion, but the regional office completely ignored the examiner’s medical opinion and my newly found/discovered missing VAMC medical records.

[Vync]

@pacmanx1 I finally got a decision a couple of weeks ago. From the time the BVA received it (AMA lane, no PACT act, no special considerations), it took almost 3 and a half years. Of course, it was a rubber stamp denial. The VLJ ignored everything and even failed to mention any reference I made about functional loss = limited motion, 4.40, 4.45, Deluca v. Brown, or Sanchez-Benitez v West. They just basically issued a blanket response saying the laws at the time were applied correctly, even though they were clearly ignored. I'll be appealing to the CAVC soon, but am doing some research and checking with law firms to consider for representation. Worst case, I'll go pro se. Just that much more time waiting....

@Ken Dillon The docket number will come first. That means they have your place in line. When I sent my appeal in January 2021, I did not get a docket number until later in 2021, but it was tied directly to the date when they received it. My video hearing occurred almost two years after the appeal was received and from there it took another year and a half to get the decision. I hope yours does not take nearly that long plus I hope you receive good news.

Edited June 1 by Vync

[Lemuel]

20 minutes ago, Vync said:

@pacmanx1 I finally got a decision a couple of weeks ago. From the time the BVA received it (AMA lane, no PACT act, no special considerations), it took almost 3 and a half years. Of course, it was a rubber stamp denial. The VLJ ignored everything, and even failed to mention, any reference I made about functional loss = limited motion, 4.40, 4.45, Deluca v. Brown, or Sanchez-Benitez v West. I'll be appealing to the CAVC soon, but am doing some research and checking with law firms to consider for representation. Worst case, I'll go pro se.

@Ken Dillon The docket number will come first. That means they have your place in line. When I sent my appeal in January 2021, I did not get a docket number until later in 2021, but it was tied directly to the date when they received it. My video hearing occurred almost two years after the appeal was received and from there it took another year and a half to get the decision. I hope yours does not take nearly that long plus I hope you receive good news.

Vinc, you can go ahead and file your appeal to the CAVC using the pro se forms.  They will refer your case to the registered "pro bono" attorneys that will take it to conference for you.  Just be sure you include your references.  You will probably get an offer quickly for representation.  First, I would try CCK before filing the pro se appeal.

You can also look up attorneys on the docket search at the CAVC before applying to them for representation.  You want attorneys with a successful history.  The search if free and it is a good thing to do.  The attorney does not get paid unless they win and then get paid by the VA.  A remand is a win and they get paid by the hour for the time they spent.  The attorney I had at the CAVC would not represent me at the BVA.  So now I have CCK.  If you have a remand it is easier to get represented at the BVA but the attorney will be paid 20% out of your back pay.

An appeal to the CAVC and above must be on the application of law.  The appeals courts have no jurisdiction on facts and if you are arguing facts, you will get a quick denial at the appeal courts.

[Vync]

@Lemuel I'll look into that and appreciate the insight. I checked with CCK first, but they declined. I checked with a couple of other law firms, but am waiting to hear back.

I believe my CUE is based on the decision maker failing to apply laws/regs/precedents.

Btw, how long did your CAVC appeal take and when they remanded your claim back to the BVA how long did that take?

[Lemuel]

On 6/3/2024 at 10:15 AM, Vync said:

@Lemuel I'll look into that and appreciate the insight. I checked with CCK first, but they declined. I checked with a couple of other law firms, but am waiting to hear back.

I believe my CUE is based on the decision maker failing to apply laws/regs/precedents.

Btw, how long did your CAVC appeal take and when they remanded your claim back to the BVA how long did that take?

My 10182 was filed on 1/31/2021.  The "AMA BVA decision was on 11/29/2022.  Appealed immediately to the CAVC and remanded on 10/26/2023.  My case moved faster to decision because of my age and application to be expedited because of age.  I do not remember the age for that request but i think it is 70.  I am 83 now.

11 Months.  But that was because the case did not have to got to a Judge.  The VA GC attorney decided to agree with the pro bono attorney that it was not AMA and should be remanded for consideration in Legacy.  That is my opinion.  But the Remand is not clear and has a caveat that should not be in the remand.  If the BVA adheres to the caveat, then it will have to be appealed again and I have CCK to do it.

The remand is not a finale decision and is not appealable at this time.  The caveat is appealable because the remand was not signed by a Judge, only a clerk based upon the conference agreement.  It just has to wait for a final decision signed by a judge at the BVA and then be taken back up the chain.

Edited June 6 by Lemuel
left out definitive phrases

[Vync]

@Lemuel Wow. Good information. Thanks for sharing.

As info, back in the 90s when the BVA remanded my case for C&P, the remand instructions were very clear, but the C&P examiner did not follow all the instructions. Nobody caught it, but that is another story...