EVERYTHING YOU EVER WANTED TO KNOW ABOUT WAIVER OF REVIEW IN THE FIRST INSTANCE


Boy howdy do I ever wish I’d found out about these little “judicial anchors” when I first set sail on my VA claims adventures in 1989. Actually, it’s sad to find them so rarely used by those in the legal know. It should just be de rigeur-like filing for Tinnitus if your Vet were in Artillery or a Huey Door gunner. I speak now not as a supplicant but as an accredited advocate for Veterans. And yes- always Veterans with a capital V for valor- in peace and war. What naive man has ever signed up in peacetime with the absolute assurance that war was not on the horizon?

More some other time about Veterans.  Today we absorb the magic world of the Waiver of Review in the First Instance. As aforementioned, think of it as an anchor to keep you in place judicially. When we enter the world of Fort Fumble, we are dealing with incredibly under-educated or indelibly brainwashed VA employees who are trained to look at this as a basically “fair” process. I submit if we lose 85% of the time on our first attempt, the process is being gamed. If everyone being granted PTSD automatically seems to receive an initial 30% rating in spite of some Army shrink’s six hours of sessions and a 70% assessment at a Warrior’s Transition Battalion, it smacks of a preordained outcome. VA’s “examiner” is basing this on a 30-minute intake by an 80-year-old retired psychologist with incipient Alzheimer’s who is moonlighting at VES/QTC for some Johnnie Walker Blue Label money. He’s DSM V challenged.  Thirty Pieces of Silver can still buy a lot these days.

You lose at the RO  because the deck is tilted and you don’t know the rules. You lose at your DRO Review/hearing because they have already made up their minds. In fact, some claims like Hep C due to jetguns are automatically sent to the Board of Veterans Appeals (BVA) without further ado. Well, they actually hang you out for a few years on the old DRO game before they issue that SOC. You could have a Buddy Letter from Jesus Christ and it would be to no avail. It’s verboten to decide a Hep C jetgun claim at the Agency of Original Jurisdiction (AOJ). No Vet to date has won one yet at that level based on jetguns. You don’t have to see it in writing. In fact, does anyone remember the FAST letter that went out on the VA’s Excessive Awards Program (EAP) in 2007? Right. I missed that one too.

 WHY YOU SHOULD SUBMIT A WAIVER

Based on this, some claims and some situations demand getting a substantive appeal to the BVA post-haste so you can queue up there and wait. I know. It’s a three-year snooze right now but hey! Wait until that Fully Developed Denial Statute hits the BVA in 2019. Hey, it’s only time wasted if you lose. Since VA is wrong 74% of the time these are far better odds than playing 21 down at the Indian Casino. Once you arrive and are ushered in at the appellate level, you are before a Veterans Law Judge (VLJ) who actually has a law degree. Remember, up to this point, you have been dealing with the equivalent of legal chimpanzees. They’re busy computing Christmas banana bonuses.  When you arrive at the BVA, you’re movin’ on up, bro. You have arrived at the Perry Mason coat-and-tie level.

Now, which would you prefer? Would you want to have your Judge remand your claim back to the AOJ (your local Fort Fumble) because the RO forgot to tuck the Social Security records in there? That will cost you a year for these dolts to obtain them.  It was already denied several times earlier for whatever reason. Do you subscribe to the Tooth Faery Times? The Santa Express? The Sandman Sentinel? Do you think it’s going to be met with any chance of a grant this time? The VLJ has to, in good conscience,  remand  it for a new c&p exam because your condition might be worse after three years growing butt sores on the Group W bench awaiting his/her review.

Or… perhaps you’d prefer, in the alternative, to file a Waiver of Review in the First Instance and nail it down there at the BVA at a real court of justice. This “anchors” it in the VLJ’s hands and he can control the claim rather than relinquish it for over a year for more development and a new denial. A Waiver of Review speeds up the process by keeping your appeal on track for a timely conclusion. What is it? A Waiver instructs and commands your VLJ to retain control of this himself. It forbids allowing the idiots back at Fort Fumble to chimpanzee it to delay you even more.  I see it used increasingly these days by VLJs themselves to expedite antique claims with about six or seven remands.

Unfortunately, when you do win, you claim returns to the local Puzzle Palace for a brand new low ball rating to see if a) you even notice and; b) to force you to appeal the low ball rating and thus begin anew the whole appeals process. This is why we call it the hamster wheel of VA Justice. We see a bottleneck here as well. Some grants sit for a month or two awaiting that initial, predictably low rating. VLJs are only allowed to give you a thumb up or down. They cannot award a rating on an initial appeal unless it’s an appeal for a denied increase in your rating.

A Waiver of Review must be filed with the Board of Veterans Appeals and can be appended to the VA Form 9 Substantive appeal. I hand them in to the Veterans Law Judge personally because I don’t do videoconference hearings. I want my VLJ to take the measure of my Veteran in 3-D Technicolor with Dolby©Sound. I think of them as IMAX hearings… from three feet away.

VA has yet to come out with a Fully Developed Appeal form specifically used for a Waiver of Review. In the interim, standard issue SF8.5X11 (white) is permitted to be used in lieu of one. Simply be sure that Veterans’ name, rank, airspeed and tail number are included with their last known heading. Do not assemble a laundry list of other wishes like advancement on the docket based on 38 CFR §20.900(c). Your waiver must be a stand alone filing that can be photocopied and sent back to the AOJ informing them they have been relieved of any more heavy lifting on the claims development. The worst that could happen would be a request for a c&p but that is easily fixed with VBMS and VACOLS. Roads? We don’t need roads. We have VBMS and Jesus in our Hearts.

Lastly today, I’d like to thank Cupcake for putting up with me for the last thirty years. I neglected to tell her the truth about why I chose to be married on December 8th back in ’87. All that hooplah about Pearl Harbor is the mental wake up call I’d need  henceforth to remember to timely obtain flowers. I can only imagine myself in a Nursing Home on Dec. 7th some twenty years hence and trying to escape into town to find a florist. I really can’t  believe she actually agreed to tie the knot in spite of my suggesting she could take a cab if she had no desire to ride home in my TR-6 with the top down…  on about our 3rd or 4th date. I guess I’m just an eternal optimist or incredibly lucky.

And that’s all I’m going to say about Cupcake and Waivers. Enjoy the season. I always have great luck with incredible wins about this time of year. It’s as if the M 21 reverts back to a nonadversarial, Veteran friendly publication for a fortnight. I’m sure the VA pumpkin and mice will be back December 31st at the stroke of midnight. I’m not fatally optimistic.

 

 

About asknod

VA claims blogger
This entry was posted in All about Veterans, Jetgun BvA Decisions, KP Veterans, NOVA Attorneys, Remanded claims, Tips and Tricks, VA Agents, VA Attorneys, vARO Decisions, VBMS Tricks, Veterans Law, Waiver of Review in the First Instance and tagged , , , , , , , , , , , , , . Bookmark the permalink.

4 Responses to EVERYTHING YOU EVER WANTED TO KNOW ABOUT WAIVER OF REVIEW IN THE FIRST INSTANCE

  1. John Barbaccia says:

    Have a Merry Christmas and a Happy New years. Finnaly got 20 Percent hep c and 0 Percent for service connected disability.🎅🎄12 years later

  2. Kiedove says:

    Very interesting. “A Waiver of Review must be filed with the Board of Veterans Appeals and can be appended to the VA Form 9 Substantive appeal.”
    Can the Waiver of Review be turned down? Who does the appending?

    • asknod says:

      A waiver of review cannot be declined. It vests all decision making with the VLJ and he is not permitted to allow it to be referred back to the VARO AOJ in the first instance for anything more than development purposes. After any development there or the AMC ( now called the ARC) is completed and it is returned to the VLJ for a decision. The Veteran or his representative staples (appends) the Waiver of Review to the submitted VA 9 or includes it in writing in the contentions for review in the VA 9 substantive appeal.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s