BVA Claim

[Lemuel]

5 minutes ago, pacmanx1 said:

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.

Pacman when were your missing medical records newly found?  I suspect that is the hold up on a lot of us.  Particularly those of us that could prove by our C files that there were missing medical records either destroyed or misfiled that were not in our files.  Remands from the CAVC are supposed to go on top.  Mine definitely has not.

If you received your medical records within the last 10 years, then they are wading into that 5 plus mile high pile of unscanned files the VA OIG found a few years ago.  That will enable us to replace missing records and move on with our cases.  

My case went to the BVA, was seen by a Judge who ignored my offer, during COVID for my brief and motions to be considered and an answering of questions by email since my computer checked out as useable for an in-home hearing but the clerk's computer would not communicate with mine through the BVA system.  I would have been able to communicate with the Judge but the clerk would not have been able to listen in and feed questions.  

I think the clerk engineered slamming me into AMA from legacy to get out of the work of getting those files or briefing the Judge about my claims of the files having been lost or not given to the BVA.

The Clerk was working with a file that was only 1300 pages while the RBA that went to the CAVC on appeal was over 12,000 pages.  And even then the pages I listed as missing were not included.  The length of the file is because of ROs copying the entire file and adding it to their decisions so they could claim the reviewed it instead of just copying the previous decision.

Because my case is on remand from the CAVC the clerk will have to not embarrass the Judge again.  It means a more careful look through my brief and motions which will take time and will include an effort to obtain those missing medical records that are not in the C-file form the H-file including the unscanned hard copy records to complete the file.

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.

 

[pacmanx1]

I split this not to hijack the O P (Original Poster's) post.

VYNC@, thanks for the update.

LEMUEL@, maybe I should use the term misfiled records. In my case, over the past three years the BVA has granted me two separate EEDs of TDIU benefits. While going through my records for this claim, I found VAMC Handwritten Medical Records for a totally different service-connected disability. I then filed a reopen claim requesting an EED for that particular disability. Since my prior claim was denied and the BVA had just granted me two separate EEDs using the same criteria, I requested an EED that the VA failed to review my entire records and there were still VAMC handwritten medical (Progress) reports/notes in my file that was never associated and or considered/adjudicated with my current rating. I felt that it would be a no-brainer since I just won based on VA’s failure to review my records and all the regional office had to do was to follow suit that they should associate and adjudicate my found records with my current rating and award the earlier effective date.

[Vync]

@pacmanx1 Thanks to you also. Always glad to provide an update.

@Lemuel I just responded to you on the other post, but will respond here instead going forward. I recall seeing that BVA and higher appeals are accelerated if you are over  75, terminally ill, financial hardship, and maybe a couple of other circumstances. My full BVA AMA appeal took about 3.5 years because I met none of those criteria. I'm not mad about it taking so long because others in those circumstances definitely need to get bumped up in line.

With regards to requesting a copy of my c-file, I wanted to share some details which might be helpful to you or others. I requested a copy about 12 or so years ago and it arrived in a couple of giant cardboard boxes. I was supposed to sign for it, but it was simply left on my front porch. I bought a printer scanner with an auto sheet feeder. I scanned everything in to individual PDF files for quick reference from my computer. After the heart attack in 2019, I re-requested a copy on CD or DVD. I had nothing to do except cardio rehab therapyt while I was out of work recovering for several months, so I had this funny feeling the VA screwed up prior decisions. I worked from paper copies and then sent off the BVA appeal due to the appeal deadline, but I let them know I never got my records despite multiple follow ups. A few weeks after I got them in the mail. I had been told that the PDF file would be password protected and I would need to sign for it. Again, the post office just dropped it off in my mailbox. Upon reading the PDF file, I found it was not password protected. I inquired and was told password protection was not needed, which is a load of BS. Each document was bookmarked, but the organization of it was really awful and the bookmark names were often cryptic. I'm a programmer who works in an industry where I analyze data daily. Normally, systems will have data broken out with fields like application, cabinet, date, document type, document description, etc... Instead, what I received was not broken out in that manner let alone in date order. I realize the old c-files had everything in individual volume folders. It looks like everything was scanned in the exact same way with no attempt to organize them efficiently. And to make things worse, most pages were heavily redacted and blacked out with (b)(6), likely to provide extra protection for in-service providers who had their SSN on a rubber stamp. Of course, there was no care to exactly what got covered up, too, including actual viable information. Other stuff like my SSN and bank account numbers were often not redacted. Very sloppy. Fortunately, I still had my original copies scanned in, including my original in-service medical records. I think they used an AI algorithm to OCR the readable text elements and redact them, but it was not smart enough to do it reliably. There was still many documents missing from it, but I had copies. Just wanted everyone to have an idea of what to expect if you request your claims folder today.