I think Regional forgot about my case!

[JuanP]

 

That was the successful conclusion of my case........ but it wasn't. 

As it turns out, they remanded a bunch of stuff back to the Regional office.  They ruled on my Spine (cervical) in my favor.

In the ruling, they remanded the Psych claim along with most of my secondary conditions back to Regional office. and here we are almost 2 yrs later and I have heard nothing......

Any thoughts?

[broncovet]

Here is the deal.  You can appeal to the CAVC any issues which are "denied" by the BVA.  You can not appeal "remanded" issues, because that is not a final decision.  Instead, you have to wait until the RO completes the Remand, and, if dissatisifed with this outcome you may appeal that.  

IN short, you can not appeal a remand in process.  

If the BVA "fails to address" one or more of your issues, then this is appealable.  If the BVA never mentions it, then you can "presume" this is a "deemed denial".  The CAVC has said that, when VA addresses some issues and does not address others, this is a "deemed denial", and (the appeal clock begins to run).  However, more recent case law suggests that its only a "deemed denial" if the Veteran can conclude the issue has been denied.  

The deem denials flies in the face of 38 CFR 3.103, which essentially states, in pertinet part, that the Veteran is entitled to a written decision.  Thus, the "deemed denial" rule is in conflict with 3.103, which states:

(from the VEterans law blog):

November 8, 2012

Veterans Deprived of CFR 3.103(a) Protection before Board, FedCir Oral Arguments in No.2011-7191, National Org of Vet Adv. v. Shinseki

Filed under: Uncategorized — veteranclaims @ 6:12 pm

I strongly urge every veteran and all veteran advocates to listen to this oral argument, because veteran claims before the Board have been wrongly denied and the VA is not going to tell those veterans about these illegal actions, unless the FedCir Orders them to do so. Hopefully, the FedCir will issue such an Order/Decision, but I urge all veterans that may be affected to seek help because this is a complex issue.

FedCir Oral Argument page:
http://www.cafc.uscourts.gov/oral-argument-recordings/search/audio.html

Excerpts from NOVA brief:

“On August 23, 2011, the Department of Veterans Affairs (VA) abruptly announced—and immediately put into effect—a new regulation that stripped veterans of their § 3.103 rights in hearings before the Board.”

“38 C.F.R.§ 3.103. This provision creates certain “Procedural due process and appellate rights” that apply to all VA adjudications. 38 C.F.R. § 3.103(a). They include the right of veterans to have the officials conducting their hearings “explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position.”
Id .§ 3.103(c)(2). The provision also establishes the VA’s basic “obligation” in all

4proceedings “to assist a claimant in developing the facts pertinent to [his or her]claim” and “to render a decision which grants every benefit that can be supported in law.” Id. § 3.103(a). Section 3.103 protects disabled veterans and their entitlement to benefits. It reflects the “general character” of the veterans’ benefits system, which is “strongly and uniquely pro-claimant.” Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998).
===================================

[JuanP]

So my understanding of the last IRIS reply is that now they are aware there are open issues, so it will be reviewed to see what is happening.

Is that what they are saying?

[JuanP]

The latest ISIS reply came on Friday of last week, It appears if they are on it and so I''m guessing I should wait and let this play out?  Here is the meat:

Your claim dated December 22, 2013 has been established and is being processed. A letter dated October 28, 2016 has been sent to your address of record regarding your claim. We apologize for any inconvenience and appreciate your patience.

Our records show that you do not have a Veterans Service Organization to assist you wil VA matters. We recommend that you appoint a Veterans Service Organization moving forward. For more information, "google" Veterans Service Organizations in your county.


Thank you for contacting us. If you have questions or need additional help with the information in our reply, please respond to this message or see our other contact information below.

Sincerely yours,
RO Director
VA Regional Office
EF

[JuanP]

And their Letter came today.  And go figure, they are asking for more evidence.  I submitted a nice neat little repackage of everything 18 months ago.  I do not believe there has been anything new to add.  Just continuing treatment notes.

However, now I have dental effects that I'm affraid to submit due to the way they recycle the start time on your claim each time you give them something new. 

Anyway, attached is the meet of what they sent me.

Redacted VARO October 28 communication.docx

[Berta]

That is the 5103 Waiver ( formerly aka VCAA)

On mine ( for my 1151 HBP posthumous  accrued claim) I signed it and mailed it within the 30 day deadline with proof of mailing.

I stated on the form the exact evidence I had already sent to them,which was only one document for that specific claim, and I asked for decision..

They quickly denied ,I quickly raised hell because they again violated 38 CFR 4.6, my favorite regulation)and they called me and then verified by phone that they did have the document and would use it this time...and then they denied AGAIN because they again failed to use , I raised hell again and then they awarded it.

All of above didn't take too long at all to accomplish.I am used to over 20 years of this crap from my VARO.

I think everyone who is requesting that they decide their claim with this 30 day form, should list on the form,  the evidence they have already sent it. 

In most cases, they will probably read and list all the Evidence you have sent to them on the evidence list in the decision.If they forget to list and then completely ignore  something probative, it is a CUE and they can fix that right away....if you jump on them ASAP.

(my probative evidence was a 2 page medical opinion from the head cardiologist at VA Central.The cardio doctor also has HBP as a prime area of their expertise at www/healthgrades.com and the doc fully admitted the HBP was an additional 1151 issue. I bring that all up because it is usually only the best evidence we have ,that they ignore...so that they can deny...and hope we will not even notice what they did.

 

 

Edited November 4, 2016 by Berta

[JuanP]

OK Berta, thank you. 

So I am going to reply back with the list of evidence they already have. AND add in the 1151 for the dental stuff.

Very good.  as always, I appreciate you!!!