38 CFR § 20.900(c)– MORE THAN MEETS THE EYE


Members have asked me frequently what the parameters are for seeking an advancement on the docket. While this might sound like climbing Mt. Everest barefoot, it isn’t. There are four criteria for this in spite of the common misconception of two.  Additionally, this is not something that can only be petitioned for to the BVA. Let’s review this. I print below 38 CFR  § 20.900 first:

Here is the link if you wish to peruse it later

http://www.law.cornell.edu/cfr/text/38/20/900

(a) Docketing of appeals. Applications for review on appeal are docketed in the order in which they are received. Cases returned to the Board following action pursuant to a remand assume their original places on the docket.

(b) Appeals considered in docket order. Except as otherwise provided in this Rule, appeals are considered in the order in which they are entered on the docket.

(c) Advancement on the docket— (1) Grounds for advancement. A case may be advanced on the docket on the motion of the Chairman, the Vice Chairman, a party to the case before the Board, or such party’s representative. Such a motion may be granted only if the case involves interpretation of law of general application affecting other claims, if the appellant is seriously ill or is under severe financial hardship, or if other sufficient cause is shown. “Other sufficient cause” shall include, but is not limited to, administrative error resulting in a significant delay in docketing the case or the advanced age of the appellant. For purposes of this Rule, “advanced age” is defined as 75 or more years of age. This paragraph does not require the Board to advance a case on the docket in the absence of a motion of a party to the case or the party’s representative.

(2) Requirements for motions. Motions for advancement on the docket must be in writing and must identify the specific reason(s) why advancement on the docket is sought, the name of the veteran, the name of the appellant if other than the veteran (e.g., a veteran’s survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual’s behalf), and the applicable Department of Veterans Affairs file number. The motion must be filed with: Director, Administrative Service (014), Board of Veterans’ Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. (This is for advancement on the BVA’s docket. All other request should go to your VARO)

(3) Disposition of motions. If a motion is received prior to the assignment of the case to an individual member or panel of members, the ruling on the motion will be by the Vice Chairman, who may delegate such authority to a Deputy Vice Chairman. If a motion to advance a case on the docket is denied, the appellant and his or her representative will be immediately notified. If the motion to advance a case on the docket is granted, that fact will be noted in the Board’s decision when rendered. (oddly, if the advance occurs at the VARO, you will never know except that justice sure seems to move right along).

(d) Consideration of appeals remanded by the United States Court of Appeals for Veterans Claims. A case remanded by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action will be treated expeditiously by the Board without regard to its place on the Board’s docket.

(e) Postponement to provide hearing. Any other provision of this Rule notwithstanding, a case may be postponed for later consideration and determination if such postponement is necessary to afford the appellant a hearing.

 § 20.900(c) is up in the § 20s section of 38 CFR because it ostensibly only applies to cases before the Board. Not so. Any claimant can ask for this from Day One of his filing. Here is another little secret. They (your VARO) must make this determination within 90 days of your filing for such. It behooves you to supply them with everything needed to make this decision if you want to hit that 90 day number. One cannot simply ask for it and sit back and wait. You have to be proactive on this. You are petitioning them for special consideration so you must do the legwork to prove you are eligible. Once they have all the required information, the 90 day clock begins to tick. If you provide them with it at the outset with VA VISTA records and/or reams of credit card balances, it will begin sooner rather than later. They will not send you a letter saying they are granting it either. You will just notice things move along rather swimmingly.

So, with that laid out, you will notice the underlined portion in section (c). This is the one facet of the regulation most are not aware of. Usually, this is utilized to help older WW2 Vets. I petitioned on the grounds that my 1994 claim was unadjudicated and thus still open. VA accepted my argument or else they rightfully assumed I’m going to be room temperature sooner rather than later. I certainly haven’t given them any reason to believe otherwise. Four operations and a one year sojourn at the VAMC in a private room (MRSA) is a good beginning for this argument. Secondly, I put forth the argument that medical records from a civilian hospital in a war zone should have been treated as service medical records and collocated with my SMRs.  Working for AirAm did not always give you the opportunity to just hop a plane back to civilization and the nearest military medical facility when you were bleeding out from a GSW.

HCV claimants have a leg up for this request. Those of you who are getting along as I am at 60ish, are usually rather advanced in the disease process. This mitigates for an advancement based on poor health. As most of us can no longer work, we have financial issues as well. I know I did and they just got worse the longer I waited.  This is why I admonish the reader to start with this at the beginning rather than wade in and ask for it a year after filing when things are bogged down waiting for an IMO. Don’t think you are stepping on another Vet’s toes.  Someone filing for acne vulgaris or hemorrhoids does not face the same time constraints as you.

Lord, I felt so guilty when I first set foot in the Seattle VAMC in 1989. I asked myself what on earth I was doing there. I had nothing more than a simple, screwed up back with radiculopathy down into my hips for 20 years. Outside the entrance were Vietnam Vets with no legs and some without arms either, happily smoking and sharing jokes. I felt so out of place compared to these warriors. It seemed that I was the interloper who might somehow detract from their financial or medical needs. Three years later when my health started going south and I found out what Agent Orange was doing to me, my sentiments changed. While the feeling persists that I am less worthy than one who has lost limbs to war, I console myself by keeping in mind that my injuries are virtually invisible, but far more lethal. This is one of the hardest concepts for many Vets to overcome. VA aids and abets this insecurity through VSOs by implying that somehow you are a “willfully disabled Vet” or one that is not as “entitled” as other real Vets. Some of those we have helped have reported that the SOs they approached were loathe to take their cases and went so far as to imply it was a waste of their time. I won’t go into how I feel about this subject line, but I saw the raised eyebrows of my rep. and the knowing look traded with another SO sitting beside him in 1994. It spoke volumes as to their belief that I obtained this from drugs.

Now that I have that off my chest, I can proceed. Asking for advancement and being denied same is not good. Of course they will think you are trying to cut in line if you request this without documentation. I don’t think I need to explain why. Go look on another Veterans Web site that has pink in the background and examine the laundry list of problems these guys and gals are trying to hang on their service. I mean no disrespect to anyone, but it seems something is amiss when Vets come out the other end of a four year enlistment as a paper pusher and have more ills than combat Vets. I don’t buy it. HCV secondary to paper cuts? Hemorrhoids due to sitting too long at a desk? Bunions due to those nasty combat boots you wore for 6-8 weeks in Basic and never donned again?

I hope this little diatribe reinforces your resolve if you were wavering on this subject. HCV and resultant cirrhosis waits for no one, be it Veteran or civilian. The hosts of ills that travel with this circus are horrible and debilitate you further. As such, you legitimately should file for advancement. Your time on earth absent SVR (HCV remission), is measurable- not some nebulous concept that may or may not come to pass. It is incumbent on you, especially if you have a spouse, to start making provisions for the future now. Advancement on the docket, even at the RO level, is prudent if you qualify. I think I speak for all Vets when I say that most would advocate for a triage philosophy that comprehends the sickest and neediest be afforded a quicker resolution to their claim(s). I apologize if I seem selfish about this. No Vet is better than another, even if they served in time of war. Hate me if you will, but I advocate for the sickest first.

About asknod

VA claims blogger
This entry was posted in Tips and Tricks, vARO Decisions and tagged , , . Bookmark the permalink.

3 Responses to 38 CFR § 20.900(c)– MORE THAN MEETS THE EYE

  1. Victor Sellers says:

    Some good points and some inaccuracies.

  2. screwed over vet says:

    Thank you so very much for the work you put into informing veterans.
    Your effort is absolutely priceless. (GOD BLESS YOU, MY PRAYERS ARE WITH YOU)

  3. screwed over vet says:

    THANK YOU SIR. PRAY THAT GOD KEEPS HIS ARMS AROUND YOU

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