Bva Question

[carlie]

How do I deal with this from my BVA decision ?

"The veteran has also raised the issues of entitlement to service connection

for A, B, C, D, and E. These issues have not yet been adjudicated by the RO and are

referred to the RO for appropriate action. See Godfrey v. Brown, 7 Vet. App. 398 (1995)

(the board does not have jurisdiction of issues not yet adjudicated by the RO)."

My evidence shows adjudication is final on A, B, C and D.

How do I respond to this, to get BVA to make decisions on these issues.

Thanks for your input,

carlie

[Vike17]

Carlie,

"The evidence Im speaking of was addressed and shown in the DRO hearing transcripts,BUT NOT mentioned at all in the decision, SOC's or SSOC's."

I suspect that, if the evidence wasn't listed in the SOC's or SSOC's, then in the eyes of the BVA that eveidence wasn't formally considered. If I'm not mistaken, there is a regulation that states something along the line of any evidence submitted must be listed on a rating decision, SOC, or SSOC, especially if that evidence does not support the granting of the benefit sought. If that evidence is then unable to allow a grant in benefits, the RO must give a rational as to why.

Ricky,

"does this mean that if new evidence is submitted during the local appeals actions and is not addressed by the DRO then the BVA does NOT have jurisdiction over the issues on appeal?"

Essentially, yes, that's what it means.

"In this case does one respond to the SOC and notify the RO that such evidence was submitted but not discussed/considereded or do you go ahead and file the form 9?"

In this senario, I would notify the RO by re-sending the evidence that wasn't listed on any SOC or SSOC, and tell them since they did not consider it or list it as evidence on the SOC/SSOC, this constitutes "new" evidence and tell them should issues either a grant in benefits sounght based on that "new" evidence or issues a SSOC. One thing to keep in mind is that if you do this, it needs to be done within the 60 days of receiving the SOC/SSOC!

Any evidence submitted by a claimant that hasn't been considered by the "agency of original jurisdiction," meaning the local RO, will in all likelyhood cause a remand by the BVA so the local RO can consider that evidence. This is similar to when you ask for a hearing during an appeal and the VA issues a SOC/SSOC without holding the rerquested hearing. Then you file Form 9 and the case goes to the BVA. They take a look at the C-file and notice you requested a hearing but the ROnever held one. The BVA would remand the claim back to the RO for them to have the requested hearing and issue a SSOC if that hearing didn't produce a grant in benefits sought.

Vike 17

[Chuck75]

As I understand it, you should have a letter from DRO stating the denial of the claim(s). If so this will likely have some wording as to the "final" decision. I believe this is what the BVA needs to actually do something..

How do I deal with this from my BVA decision ?

"The veteran has also raised the issues of entitlement to service connection

for A, B, C, D, and E. These issues have not yet been adjudicated by the RO and are

referred to the RO for appropriate action. See Godfrey v. Brown, 7 Vet. App. 398 (1995)

(the board does not have jurisdiction of issues not yet adjudicated by the RO)."

My evidence shows adjudication is final on A, B, C and D.

How do I respond to this, to get BVA to make decisions on these issues.

Thanks for your input,

carlie

[Ricky]

Vike thanks.

In the case where the RO fails to list the evidence and the form 9 is pending, I wonder if the vet can submit a statement in support of the claim and waive RO jurisdiction/need to review? Kinda like when you submit evidence directly to the BVA during an appeal.

Maybe you could word it something like: "although the following evidence (list evidence) has been previously submitted in support of this claim, XXX RO failed to use such evidence to decide this claim. Therefore, I waive any right to have the XXX RO review this evidence. Based upon my request and waiver I ask that the BVA accept jurisdiction over my claim and use the listed evidence in their rating decision. something like that anyway.