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? 

[Lemuel]

4 hours ago, Vync said:

@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...

The examiners, whether VA or one of the private contractors, are strictly limited by the RO and DRO.  The VA employees doing the ordering do not look at the remand when ordering the examination.  They copy the previous order which strictly limits the examination scope.  

In examining my wrist, the order limits the examination to the articulation of the fingers though the thumb is primarily the digit that has limitations of movement from a 1969 surgery.  That has been the case since the first examination ordered in 1984.

I am back at the BVA on this one issue as well as others for the fourth time.  Not only are the examination orders copied without looking at the BVA remand, but the RO and DRO decisions are copied from the previous decision and a current copy of the C file is added behind the decision.  The decision rarely makes any references to specific file documents and is easily appealed because of missed specific reports that are counter to the decision.

VA OIG reported 10.8 million in bonuses paid to VA supervisors.  The bonuses must be tied to cutting benefits costs because that is what is happening.  Cheyenne VA is again cutting services.  Appointments are for over 3 months when requested.  Seeing a C&P for a 6 month checkup has been changed to 1 year checkup.

I am editing the above post I made because I did not mention that the CAVC Clerk is who ordered the remand.  Therefore, the decision is not finale and not appealable. It was not made by a Judge so the remand itself may become appealable on that basis because of a "limitation" put in the remand. Stuck in the loop.  Hope CCK can break it.

[Vync]

@Lemuel I have a copy of the instructions sent from the VARO to the VAMC back in 1997. They were literally copied/pasted from the BVA identically. Separate issue, but makes me wonder if I still have a potentially open claim from way back then. I have been told by others on a different site that it would be deemed closed and not CUE-able because they thought it was a duty to assist error.

I read about the executive/management bonuses that showed up in the news. It's severely impacting getting community care referrals addressed in a timely manner, but we can discuss that in another topic.

Sounds like the VA might have been trying to back burner things by allowing clerks to issue CAVC remands.

[Lemuel]

@Vync  CAVC and all the courts are trying to speed thing up.  If you have an attorney, the rules allow the clerk to remand on a joint motion.  My attorney allowed a caveat that should not have been allowed.

CCK has my BVA claim.  I brought up issues for reopening claims because of failure of the RO to follow the remand orders.  I also brought up 38 CFR 20.1000 reopening of claims and BVA decisions based upon the errors made in processing the claims.  Such things are supposed to be forwarded to the Director, Compensation Services by the RO and DRO.  I have ask the BVA to send my file to the Director, Compensation Services for a full review especially of my TBI, partial and complex partial seizure confirmation, and several other things in separate motions to the BVA.   

Result was a slam from Legacy Appeal to AMA and ignoring of the brief and motions with a lot of specific file pages and line references.  Apparently the clerk did not want to deal with the full C file.  She had only 1,336 pages of over 12,000 pages that were sent to her by VARO.  That alone is enough to get a remand for an incomplete RBA before the BVA.

The CAVC also received an abbreviated RBA the first time.  A little over 4,000 pages with critical items missing.  

By briefing and using motions I am hoping that the BVA will have to address specific pages and lines in the "finding of facts" and not just quote the VARO rating decision and its nonspecific quotes of the copied pages of the file submitted with generalized findings without specific references.

We will see what CCK is able to do anything with my previous filings.  There is a lot of delay with the remand.  Remands are supposed to be handled faster than original 10182 forms.  The remand from the CAVC was on 10/26/2023.  The BVA Docket No. will remain the same.  But no Legacy hearing has been set up yet which seems odd to me.  I had a hearing date much sooner on the 10182 and then had it cancelled by the BVA clerk because I could not communicate with her via the video link on her home computer.  There was no problem with my set up per the test before and after her attempt to verify my connection from her home with the BVA IT guy on a test.  That is what resulted in the AMA and I suspect it was engineered by the BVA clerk who did not want to do the work required on the case.

 

 

[Vync]

@Lemuel Thanks for the info! I hope your legacy hearing is/was not like my AMA video hearing at the BVA. Back in the late 90s, the BVA hearing was with someone who had reviewed my file and I was able to interactively ask questions about the errors. The new AMA video hearing experience was awful. It was basically "we're going to record you asking questions" and place the transcript in your file so the other judge who makes the decision can read it in a year or two. Was the 4000 pages your entire c-file? I requested mine and it was over 11,000 pages in a PDF, but was still missing a bunch of stuff. My state VSO at the hearing was basically representing me by merely being there and was zero help. I followed back up about the denial and they still gave me "guidance" that contradicted the laws and regs at the time. Fun stuff, but that's why I am interested in exploring the CAVC route.

[Lemuel]

@Vync The 4,000 page RBA was missing about 6,000 pages at the time.  Maybe more.  I received a stack of two sided documents that was more than 6 ft tall when stacked in one stack by 2 boxes with more than 18 inch stacks, 4 stacks, each box having 2 stacks.  Definitely more than 10,000 pages before the up and down in remands with VA employees each copying a bunch of documents, I presume the 1336 pages they have decided was the file at some point to back up their decisions.

You have to file a notice of appeal within 120 days of a BVA Decision.  It has to be based upon law or "arbitrary and capricious" decisions.  (high bar).  If you are getting no help from your rep, write your on brief and motions referencing specifics so that you can meet that "arbitrary and capricious" high bar.  If your rep only stood by on your last hearing, apply for a 38 CFR 20.1000 vacation of the decision based upon failed representation because the rep did not prepare a brief.  If he did prepare a brief and it can be proven inadequate by documents in your file, you should still be able to get the decision vacated and redecided by my reading.  We rely on reps.  They decide what to present.  If they are clearly wrong, then we should be able to get representation to correct the problem.

That is what I am hoping CCK will do for me.

The most you can hope for from the Courts of Appeal is a remand for a re-do with their instructions.  

Your experience with a hearing is the same as mine except the American Legion rep at my 1990 admitted in the hearing as being unprepared because he was not given the file until an hour before the hearing in DC.  At that time a panel of 9 if you ask for a hearing in DC.  Also had a panel of 9 in 1986 at the LA VARO.

You will have to petition the BVA to vacate the previous old decision based upon your rep being no help before you can go to the CAVC.  You could submit a Legacy Appeal covering all of that and ask for a Director, Compensation Service review for "extra-schedular" ratings based upon the actual difficulties you are experiencing compared to the rating given and the rating schedule.  The RO says, for example, you only demonstrate a 30% schedular rating from the C&P examination, but your experience, especially work experience demonstrated a higher disability rating.  Focus on your "chosen field" of employment and try to get current or former employer's statements stating what accommodations they made to employ you and how much the put up with because you were a veteran.

Happy to help whenever I can.  I have a medical background in organic brain issues and spinal issues.

[Vync]

@Lemuel When I found out that my VSO was supposed to write a brief, I asked them about it. They said they didn't have a copy. I'm going to email them so I get it in writing. If they deny having one in writing, I'll file a complaint with them so they don't hose up any other vets in the same way. I hope they didn't simply write their brief and say, "see attached"...
  About 10 years ago, I had a different rep from my VSO for my DRO hearing and they were familiar with the case. That guy retired otherwise I would have asked for him specifically.
  I doubt I could get a legacy review. The initial decision I was CUE'ing was from 2000. I did not file the BVA appeal until January 2021 because the VA was lost. They spent about six or seven months trying to figure out what form I needed to submit a CUE on, plus it was initiated after AMA went into effect. I was hoping to get a 20 or 30% rating, but they rated me based only on max ROM instead of where painful/limited ROM was objectively measured. I can send you redacted copies of the C&P to review and get your thoughts, but did not want to send them without first asking.