BVA–WINNERS AND LOSERS


Here’s a real eyeopener. Got this from a reader. Interesting. Statistically, I would expect attorneys would have the highest rate of success. As presented, I presume a 13.03% denial reflects the obverse-a 86.97% rate of success in either winning or getting a remand to repair it. 

PVA has some excellent attorneys on their legal staff like Jennifer Zajac who are gogetters. They do a lot of pickup work from the NVLSP, too.

VVA deals mostly with Vietnam Vets. Getting herbicide presumptives  is like shooting fish in a barrel. That would account for a large number there.

MOPH, now, is going to have a really low denial rate because they aren’t even in business. They were above average on wins when they were in business but as their Association suggests, they attracted a lot of easy musculoskeletal 0-10% SFW wounds and a few LOU/A&A/amputations from PH awardees, too.

Next, we have Agents. I’m glad to see us about here because it validates my suspicions that we were in the upper tier. Interestingly, a large number of combat Vets from RVN gravitated to VFW with documented injuries. They should, by rights, be up near the VVA stats. Personally, at this time my win/loss statistics at the BVA are 80-1. I lost Butch’s appeal for the EED of 1970 but I expected to. I’m rebuilding it now so I don’t consider it a loss yet.

I think it’s also sad to see such a marked disparity with AmVets below the rest.  State and County VSOs could really shine if they were allowed to have more training…like NOVA.

 

Lastly, it speaks volumes that 67.39% of pro se Vets can actually articulate their appeals coherently and succeed. What we cannot see is a statistical breakdown of claims by percentage. It’s one thing to win 0%-10% for tinnitus at the BVA. It’s quite another to get an R1 or R2. I would bet those would be very revealing statistics and skew this ranking entirely differently.

I suppose the glaring 800 lb. elephant here is that 67.39% of pro se Vets win which means that VA is in error 32.61% of the time just on these Vets alone. Considering the CAVC reverses, sets aside, vacates or reverses 74% of time is an indicator that the process is grossly flawed. But then we knew that.

And that’s all I’m going to say about that.

Corona humor and then some…

About asknod

VA claims blogger
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14 Responses to BVA–WINNERS AND LOSERS

  1. I’ve printed out four pages here and adding that on top of my other tasks of pleasure. Thanking you again Lem

  2. I’m still crackin up about that last Horseman. Does the fact the CAVC treats Pro per folks like fine wine have any bearing outside of having or not having a decent claim in the first place?

    • Lem says:

      CAVC does not treat Pro Per folks like fine wine–more like vinegar because they can not find an attorney. And attorneys do not want to go there because of the difficulty being paid. They would rather have a slam dunk at the BVA. $110,000.00+ attorney fee experience at the BVA and 0 representation at the CAVC and CAFC. Go it alone all the way after the BVA. Cases still active. We’ll see how they come out.

      • Appears you would know Lem. My guy is very may I say optimistic; we will see eh?!

        • Lem says:

          At the BVA or the CAVC? CAFC is definitely a hard go.

          • 100%. Not knowing who he is/was didn’t wish to offend. Have been to CAVC two times thus far; both with attorney or attorneys and we prevailed both times with Remand orders. First Remand was waste of time excepting the entry of new evidence and that I have been certified back to 2006 so I could deal with it. Second appearance was of such magnitude from standpoint of my attorney’s expertise, I thought we would get some shining decision. No, they diverted us right to the Remand only which at least has been shorter than first remand time-wise. Yes, Pro se do get treated royally at the court, so much so that i wondered at the time why i didn’t go it alone, having studied many cases and seen the evidence of said treatment. I’m hoping; the attorney counting on getting our Grant at the BVA just as one of his previous victories; 09-17 037 Decided 01/09/14…

      • asknod says:

        Unfortunately, Lem has no legal training. The CAVC treats “pro se” (self-represented) Vets with white kid gloves. Of all legal venues above the VA adjudicatory decisions, the CAVC is probably the most liberal of all-even more so than the CAFC.
        Attorneys, and even us nonattorney practitioners, hate to go up to the CAVC and beyond for one simple reason. We’d rather win it at the BVA level so as to save the Vet money.
        Getting paid for repping a Vet at the CAVC is easy. You file an EAJA for the representation costs and they pay you. They may haggle a bit but they pay when you prevail.
        Going up to the CAVC/CAFC without an attorney is about as stupid as a Vet can get. You can get the Veterans Pro Bono consortium or the NVLSP to do it for free and get high caliber representation. Seems like Lem has not researched how all this works.

        • Lem says:

          Take a look at CAVC Bray v Wilkie, Vet. App. 17-2990 now CAFC 20-1675. CAVC Bray v. Wilkie, Vet. App. 20-1323, a Godsey v Wilkie Rule 21 Petition and CAVC Bray v. Wilkie 20-1415, a Rule 21 Petition on delayed Remands and ignoring the specifics of the BVA Remands. The 05/11/2017 BVA Decision with Remands is filed on 20-1415 and 17-2990.

          So what you are saying, asknod, is that my cases are un-winnable because none of the over 100 attorneys contacted would take them.

          I have ended up with an attorney on the BVA Remands and an unadjudicated 11/26/1994 Substantive Appeal and request for a Executive Director, Compensation Services review, that is in an Appx at the CAFC 20-1675. He will not make an entry per our retainer agreement on the CAVC and CAFC cases. It was the only way I could get an attorney to handle the BVA remands which included a CUE of an unadjudicated extra-schedular 1987 TDIU claim. He got a quick $80,000.00 fee deducted from my over $400,000.00 award so far and the Remands are not finished. My first attorney got a quick $30,000.00 from the earlier $150,000.00 award for a TBI TDIU award from August of 2009. But neither will appear at the CAVC or CAFC?

          Your comment?

        • Lem says:

          How did I same money with representations at the BVA? Seems to me I lost over $110,000.00 in Attorney fees deducted from my awards.

        • Lem Bray says:

          asknod, you could offer to take the CAFC case from where I have it.

          Have to file hard copy briefs by October 6 per 09/22/2020 CAFC Clerk’s Order or get an attorney to make an entry in the case and file electronically. You could also take a “class action” off the 11/26/1994 unadjudicated Substantive Appeal and Executive Director, Compensation Services review request for TBI “next of friend” earlier claims filed by me for everyone with TBI residuals.

          I think it would require a Rule 21 Petitions to the CAVC to get it to the Executive Director for everyone. I brought it up at the CAFC in my brief but it takes a Rule 2 decision for the Court to act on it under “arbitrary and capricious” acts by the Appellee. Denver VARO denied the existence of the SA in a response to the VA OIG on July 20, 1998 (if I remember the date correctly) There is also the arbitrary and capricious denial of diagnosis of anosognosia and of temporal lobe epilepsy, (which lead to suicide ideation that is probably at least partially responsible for the 22 per day combat veteran suicides) the VA going so far as to trade telemetry unit use to Dr. Steele of Harvard in the late 1980s and early 1990s for a finding that has sense been overturned by NIH. VAM&RC West LA and UCLA Medical School had their research accreditation suspended because of some of the things they did during that time. Have to research that to get the evidence.

          An attorney would have to build a team to do this or get one of the Class Action firms to sign on together.

          There are multiple “organic brain syndromes” covered. A separate class action filing would have to be made on each to get it narrow enough to be accepted. I can only be a class representative for TBI with TLE. The cerebral malaria representative is probably dead by now. A separate TBI from blast exposure would have to be made with a representative for that. Might be some of your followers here or hadit.com will volunteer.

          Date of the Claim is Bray v Derwinski, 1988 in the District Court, Central District of CA.

          I’ll put you in touch with my attorney if you would like to consider it. You could work out an arrangement. He already gave me references to class action attorneys who did not respond.

          I presume my email address provided to comment is available to you.

          • Lem says:

            I have only filed electronically since my opening “informal form brief” at the CAFC. I have a Response brief filed electronically on 07/27/2020 as was allowed because of CORVID that I will have to have printed and filed as provided by the rules for Pro Se filers per the Order.

            It also occurred to me that you would not have to go class action to use my (Navy Hospital Corpsman First Class) NOF filings for TBI and extra-schedular cerebral malaria residuals of anosognosia and TLE. You could just use the early unadjudicated NOF filings for EED for individual claimants.

            My back pay for TDIU from September 16, 1985 to August 1, 2009 was over $400,000.00 with over $80,000.00 of that going to the belatedly signed on attorney. Others will qualify under my NOF claims.

            • asknod says:

              So let me see if I have this straight. You tried a freestanding claim for EED on a ’89 tinnitus win- but in 2009. You attempted a due process violation defense like my buddy Phil Cushman. You filed a few Ex Writs (R 21s) and got no traction. I’m not sure which USC/CFR you’re going to claim was violated at the Fed. Circus. I truthfully believe that $500 could have been better spent on a really good red Bordeaux.

              Now, again I seem to be lost. You claim an attorney rooked you out of $80 K. Since we VA ambulance chasers are forbidden to cold call clients, I’m going to presume you called him/them for representation. We are limited to 20% unless the appeal is of immense complexity. Up to, but no more than, 30- 33% is sometimes allowed for large firms like CCK or Bergman and Moore. So, the $80K is an agreed upon sum between you two. As Shakespeare once said, a man who represents himself has a fool for a client.

              I, too, have done what you did. I began in 1974 when I got home from Vietnam and l gave up. In 1989 I began again. And again in 1994. I ran the alphabet of VSOs and came up with a dry hole. I won by myself (partially) eventually after I learned how to play VA poker. I finally went to an attorney when I hit the wall at the BVA in 2011. I won and got my 100% schedular back to 1994. I did not disparage my attorney for his windfall of $84K. Nor did I give him grief four years later when he got me SMC S all the way back to 1994.
              While I don’t do this for the money, I understand why attorneys have to in order to pay their hired help, keep the lights on and put their kids through college.

              I teach a DIY version of Veterans law here and used to preach DIY religiously before AMA in 2/19/19. VA law is now infinitely more complex than it was. I don’t mind doing claims at the CAVC but it’s tiresome having to build the briefs and an unwanted expense to assemble the ROP for the Court. In short, it’s a time alligator. All we get is the EAJA-but, as you have learned yourself, only after we win-not before.

              VA law is not for the novitiate nowadays as you just learned at the Court. Meredith is anti Vet, too. I began in 2006 to win my own claim. I decided to go for accreditation after my atty. told me I knew more than him on certain facets. I’m not admitted to the Fed. Circus by law. I don’t have a JD. I wouldn’t desire to go there anyway. You should be able to win below if you know how to brief it and argue for it.

              No offense, sir, but your appeal to the CAFC will fall flat like a souffle in a daycare center. Nowadays, I teach folks how to do this at the lowest level. I would never suggest pro se after a loss at the AOJ. My record beyond my win is one loss at the CAVC-not counting all my Ex Writs. Now, with the AMA, I merely flip on the turn signal at the BVA loss (if it ever happens) and go back to a 995 supplemental with a new IMO. It’s far easier to win at the BVA than anywhere else. But, like poker, you have to know what it takes to win before you sit down. VA law is actually the easiest of all to win at. It helps if you are a Vet too.
              My suggestion is to withdraw the FC appeal and just refile a 995 with the proper legal argument to attain the EEDs or… go after it with the only tools available-the CUEs you allege,

              • Lem says:

                I am not disparaging either attorney. Both did work for their fees and I could not have gotten there without them. The first spent 6 years getting her $30,000.00+. The second got a quick payout but is continuing to help with the rest of my case. Not so much residual fees for him. Thanks for helping me understand where my current attorney is coming from. He is following your advice and allowing me to see what I can shake loose at the Courts.

                If I win at the CAVC or CAFC, I will do a motion to get back the attorney fees including the fees for a legal research person who was not much help but got me through the CAVC 17-2990 case after the RBA dispute decision to the Meredith decision.

                There is nothing that says I cannot do both if I get it wrong on technicalities at the CAVC and CAFC. I am at the point of decision at the CAFC. Would be foolish to withdraw now. The CAVC Petitions were necessary to break the circle of Remands for inadequate examinations. They were still being ordered with very limiting scope ignoring the BVA Remands.

                You are right about Meredith. In my brief, I held that ignoring the RBA Dispute was a clear error in her decision and that it did not prevent me from raising the issue in appeal because I had tried to appeal the RBA Dispute decision when the Clerk issued it. He let the VA GC get off with not complying with the required detail in the Order and disparagingly sided with the VA GC stating that I was diagnosed with “pseudo seizures” as though that meant malingering. I had not realized the BVA Remands covered the missing medical records because they were not specifically identified by references as I did in the RBA Dispute.

                What is your experience with the CAVC Chief Judge, Margaret Bartley? She has both of my Petitions.

                I began my activism in 1986 when a Social Worker continued our PTSD group after the bulk got their year in to claim agent orange pay out and dropped out. Three of us stayed in the group and none of us applied for the agent orange pay out though we were all exposed. We filed for exposure in case something arises later. The three of us had organic brain syndromes. “Dr. Hook” as we called him had not served but had lost an arm below the elbow. He recommended to me, after I lost my last full time employment job and was severely depressed, that I help the other two with their situations because I had enough left with my verbal residual of a 126 IQ to become an activist for the type of injuries I had brought up in group that were being written off as anxiety reactions and adjustment disorders. I eventually got them 100% PTSD at the RO point because the VA apparently did not want to open organic brain syndromes from blast concussions and cerebral malaria residuals. I learned about the Feres Doctrine at the District Court and Ninth Circuit in forma paupers. Someone forwarded Bray v Derwinski to the CAVC just after it opened. But the notice to provide a fee or a forma paupers request missed be because of my move to homelessness while my wife went to Japan to care for her aging parents.

                Three Pro Se Court cases are pending. CAVC 20-1323 and 20-1415 are Rule 21 Petitions for delays. 1415 includes non compliance with the Remands including expeditious handling, inadequate C&P examinations and completing the medical portion of the claims file with removed documents from the old hard copy Medical Division medical file in the custody of the Executive Director, Medical Services or providing detail in the Claims file why the proven to be missing documents cannot be recovered from the Medical file.

                Remands for the inadequate examinations are extremely specific.

                I have added the dispute of the RBA at the CAVC 17-2990 challenging the 05/11/2017 Decision on EED of tinnitus and TBI under 4.42 exams as 1151 claims as well as the TBI rating because it caused TDIU from September 16, 1990 with an SSDI award, CAVES Report in the file. (Where I am now with the RBA dispute at the CAFC 20-1675 with an order to file paper copies of my filings that were only filed electronically per an email I had received) I ask for a Rule 2 waver on some of the issues because of my age and the “arbitrary and capricious” behavior of the Appellee, a CAFC Jurisdiction. I’ll find out if the CAFC treats me with kid gloves.

                The 05/11/2017 BVA Decision granted TDIU based on a 70% combined rating with 40% for TBI back to the 07/02/2009 claims or August 1, 2009. $150,000.00+ with $30,000.00 going to the Attorney who dropped me without filing the appeal or following through with the Remands where she could have gotten another $80,000.00+.

                I was on my own until I received an unsolicited offer to represent me by a San Diego Attorney although I had contacted many attorneys. The other attorneys rejected because of the CAVC filing. My current attorney offered to do the BVA Remands but excluded representing me at the CAVC or CAFC. He got the Remand for the extra-schedular TDIU on track and an award from October 1, 1985 through July 2009 was granted. $400,000.00+ with a $80,000.00+ fee deducted from my award. An opportunity missed by you from my posts asking for attorney references on hadit.com.

                During the research for the CAFC case, I discovered an unadjudicated Substantive Appeal with a request for Executive Director, Compensation Services Review that includes Next of Friend Claims for all veterans with specific organic brain syndromes. The BVA Judge missed that document but did catch the 1987 extra-schedular claim for TDIU and remanded it.

                On 07/02/2009 I had filed free standing separate claims on the issues because of the previous experience of the adjudicators only doing part of the claims and issues. I had obtained the first attorney in 2011 to handle the NOD while I was in Japan. She was unable to get a copy of the file until after I returned to the US and received 2 boxes with 2 stacks each approximating an equivalency of 6 reams of paper per stack or 24 reams times 500 or 12,000 two sided sheets. Each stack one on top of the other in a corner measured just over 6 ft. She got 1200 single sided pages on a CD. The RBA later turned out to be 4,624 pages with a lot of duplicates and missing documents. (are you getting an idea there might be some maleficence here)

                The 1994 SA also claims whistle blower retaliation for my activism for veterans with organic brain syndromes and getting an arbitrary and capricious, nearly blind, literally, not figuratively, Chief or Psychiatry retired for negating PTSD claims as “anxiety reactions” or adjustment disorders. 1995 was when my 1992 appeal was closed “because I had not filed an SA.”

                The claims include TBI with residuals of seizures confirmed 09/17/1990 and mistreated with Tegretol on two counts. The type of seizures confirmed and my sensitivity to amitriptyline. Because the seizures responded by getting worse, after the trial of only the one seizure drug, ignoring a Neurologist recommendation of a trial of Dilantin, a diagnosis of “pseudo seizures” was made. (not full detail here but the diagnosis does not meet medical standards) Money wise the 1151 claim is rendered moot to 1990 but is in my response brief back to 1974 if the CAFC agrees with me that not following the specific requirements of 4.42 in ordering and doing C&P examinations is a 1151 abridgement requiring an EED to the original claims.

                I also claim that a claim for “hearing loss” is a claim for decibel loss and tinnitus under 4.42 as “related body systems” when the SMR includes a 4/5/1965 denial of a Navy forklift operators permit because of noise trauma hearing loss with tinnitus (drowning out the sounds of the forklift beeps) I could not even work in the area a forklift was being operated. Decibel loss was corrected by a hearing aide but the tinnitus was not. Helps though to magnify the sound above the tinnitus which remains constant or exacerbates intermittently.

                There is a claim that a wrist injury suffered in the same 1969 TBI injury MVA was never given a 4.42 compliant examination and the TBI was not given anything close to a TBI examination until 16 years after the fact and 11 years after my first claim for head injury residuals. The metacarpal-carpal joint of the thumb was surgically ankylosed in 1969, 5 years before my discharge from the Navy. The examinations of the wrist were limited to finger ankylosis.

                Hope this post empowers some depressed to keep fighting and not give in to the demons caused by anosognosia and temporal lobe epilepsy, both of which are difficult to diagnose and usually go together. If you have a TBI or had cerebral malaria that could be you.

              • Lem says:

                I will let you know when the NOF claims are adjudicated at the Executive Director, Compensation Services or a refusal to develop is issued starting a statute of limitations timing.

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