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Waiting Bva Hearing?


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7 replies to this topic

#1 mrp

 
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Posted 01 February 2012 - 01:52 PM

if an appeal is awaiting a hearing at BVA ( no date yet ),
is it possible that before sending it to the BVA that the Regional Office will re-review it
and decide NOT to send it to the BVA ?

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#2 retiredat44

 
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Posted 01 February 2012 - 04:42 PM

seems to take about 3 months to get a DRO hearing (after two years of denials and appeals process starts..), but 2 years to get results..
which is about 4 years after you first apply...
my experience in San Diego

Edited by retiredat44, 01 February 2012 - 04:44 PM.


#3 carlie

 
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Posted 01 February 2012 - 04:51 PM

if an appeal is awaiting a hearing at BVA ( no date yet ),
is it possible that before sending it to the BVA that the Regional Office will re-review it
and decide NOT to send it to the BVA ?


Someone at the VARO will review your c-file for completeness prior to
transferring the c-file to the BVA.
It took about 30 - 36 months to get my hearing with a BVA travel judge
from the time I filed my Form 9.

#4 mrp

 
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Posted 01 February 2012 - 06:01 PM

Carlie,
I guess that is what I was interested in knowing ----
when they review it for " COMPLETENESS ",
is it possible that if they made a mistake , that they will not want to send it to the BVA,
and that could result in a quicker decision ( from the RO ) than having to wait for the BVA hearing.

Thanks for your help.

#5 carlie

 
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Posted 01 February 2012 - 06:10 PM

Carlie,
I guess that is what I was interested in knowing ----
when they review it for " COMPLETENESS ",
is it possible that if they made a mistake , that they will not want to send it to the BVA,
and that could result in a quicker decision ( from the RO ) than having to wait for the BVA hearing.

Thanks for your help.


I believe the review for completeness more or less looks for things like
VCAA Notice sent ?
SOC / SSOC's sent ?
If a DRO hearing had been requested - was it held ?

Maybe others will chime in on this.

#6 Berta

 
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Posted 02 February 2012 - 08:04 AM

I agree with Carlie-


if they sent you a valid VCAA letter, prepared any SOCs or SSOCs, and did a DRO review-if you had requested it,


then at the RO level that would be considered a 'complete' adjudication of the claim.


It is up to us as claimants to make sure they have all evidence they need and to rebutt anything wrong in any SOCs or SSOC within the response deadlines.
I think it is still 60 days for a SOC, 30 Days for a SSOC----------please correct me if I am wrong-


The VA prepares an I-8 form prior to BVA transfer.


I found the I-8 format in 21-1MR and it is a checklist that ostensibly shows the proper steps the RO takes prior to BVA transfer.


I had a case at BVA and the VARO did NOT follow these steps on the I-8 checklist.


I asked the BVA to remand the case and they did but the RO still failed to correct a major VCAA error.


When BVA got the claim back however they considered the VCAA error as moot as my medical evidence outweighed the VA's.


"s it possible that if they made a mistake , that they will not want to send it to the BVA,"


I wouldn't count on that due to above personal experience.I gave the RO ever oportunity to correct these errors but they didnt.


Did the evidence list in any decision fully consider ALL probative evidence you sent to them?


Carlie's questions are right on the mark as we can't tell here exactly what the status of your claim is.


Once an I-8 is prepared and the case is set for transfer to the BVA, if a claimant has a POA, they are supposed to prepare a 646 to support the contentions of the claim.


http://www.va.gov/va...a/pdf/VA646.pdf


At that point I would think a good vet rep would pour over the 1-8 and raise any errors on it to the RO bu I believe these 646s are prepared by reps who might be unfamiliar with the claim and they just go through the motions and chec the first Box on the 646 - stating they rest on the appeal.I didnt even know the rep who prepared a 646 for my BVA case.He took almost 4 months to even fill it out, holding up the BVA transfer and never made any additional argument (the RO had failed to consider my 3 IMOs, made a major VCAA error,and the I-8 indicated they took all proper steps to adjudicate but they didn't.)


We don't talk much about the 646 form here.
http://www.va.gov/ve...es3/0425500.txt
In this case the veterans POA raised stressors on the 646 as well as the veteran in his formal claim and the BVA remanded for more info to clarify the stressors for verification.


In this next case the 646 was accepted as a timely appeal for some issues and allowed further consideration of the additional conditions.:


http://www.va.gov/ve...les/0401538.txt :
In part:
"The October 2002 rating action denied the veteran's claim for
an increased rating for irritable bowel syndrome, and denied
the veteran's claims for service connection for
diverticulosis, a circulatory problem of the legs, a back
condition, and a heart condition. The RO issued a statement
of the case with respect to these issues in March 2003. In
June 2003, the veteran's representative submitted a VA Form
646. On this form the representative listed each of the
issues discussed in the March 2003 statement of the case, and
stated that the veteran wished to have those claims reviewed
by the Board. The Board finds that this June 2003 submission
by the veteran's representative acts as an adequate and
timely substantive appeal with respect to the veteran's
irritable bowel syndrome, diverticulosis, circulatory problem
of the legs, back condition, and heart condition claims. See
38 C.F.R. § 20.200 (2003). Accordingly, each of these issues
is currently in appellate status before the Board.”
In this case the veteran's POA called attention to evidence that VA had not acquired yet in the 646 form:

http://www.va.gov/ve...es3/9320002.txt

“In his March 1992
substantive appeal (VA 1-9) form, the veteran referred to a March 1992
visit to the VA Hospital in Cheyenne, Wyoming, and also indicated that
he was scheduled to be examined on April 23, 1992, by the Urology
department of the Cheyenne VA Hospital. In the July 1992 VA 646 form,
it was noted by the veteran's representative that the foregoing
medical records had not yet been obtained and included in the file.”
It is really up to us claimants as well as our vet reps to raise all issues regarding evidence etc, prior to any BVA transfer.
The BVA checks the VCAA letter first and then certainly considers any additional statements in a 646 for but I bet many 646s do not include any additional argument to help the claimant at all.


Maybe you are not even close to a BVA transfer yet. We need more info as to the status of your claim.

I would think many reps would prepare additional argument on 646 forms but by then often the claim has been developed completely as far as evidence goes and no additional argument would help.

I have never seen a RO decision overturned by a 646 because by that time the claim is done at the RO level.I think the 646 is the final step and it just is put into the C file.

But-particularily in the decision above regarding additional medical records,
the 646 might have helped this veteran get a proper resolve of his claim at the BVA.

Although the 646 most of the time has little importance to the outcome-
prior to any 646 even being prepared,there is plenty of time in most cases, for the claimant to gather and send VA the evidence they need - a process that has to start when they get the VCAA letter or even prior to that when they first file the claim.

In my opinion, I think a BVA transfer letter should prompt a POA rep to go over the entire claim very carefully-
to see if there are errors that would cause a remand.

The BVA case I had took 7 years but I was thrilled when they remanded it and that was my request to the BVA.
On remand the BVA asked for an additional VA med opinion, but when they got it and my rebuttal to it, that is when they considered ALL of my medical evidence (overcoming the VCAA error the RO had made)so remands can be a good thing.

A remand adds time to claims but on the other hand, a remand can open the door for even more evidence to be brought to the VAs attention.

#7 mrp

 
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Posted 02 February 2012 - 11:24 AM

Thank you for your effort to explain the process in detail.
I am not exactly sure what stage it is as far as transfer status,
other than being told it is still at the RO. I think it has been certified, but awaiting docket and hearing.
I have used the county(state) VSO at the VA Clinic to file the claim, but correspondence with RO always says
American Legion is my rep and has POA. I don't know who would do the 656.
I have sent much additional info to the RO to address the errors, but this was after the DRO denial and ssoc,
so I don't know if they will acknowledge it, or if it will not be reviewed until it gets to the BVA hearing.
I am mostly concerned about how long it will take to go through the BVA process and possible remand,
since I am confident that the RO was in error. I was hoping that the RO would see their error and correct it
before sending it to the BVA , and thereby shorten the process.
Looks like I am in for a long process (BVA).
Thanks again.

#8 carlie

 
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Posted 02 February 2012 - 12:59 PM

mrp,
Sorry not to have better news for you but if your file hasn't been transferred to the
BVA yet, my guesstimate is about 2 years before there will be resolve on your appeal issues.




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