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On Remand Since March 2001

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vaf

Question

We received a BVA decision dated October 28, 2005 in which the Board referenced a pending claim that the Board remanded to the New Orleans VARO in March 2001. The BVA stated:

"The United States Court of Appeals for Veterans Claims (Court) has held that a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders. The Court further held that a remand by the Court or the Board imposes upon the VA Secretary a concomitant duty to ensure compliance with the terms of the remand, either personally or as 'the head of the Department.' 38 U.S.C.A. Subsection 303 (West 1991). Additionally the Court stated that where the remand orders of the Board or the Court are not complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998).

In March 2001, the Board remanded the claim of entitlement to an initial rating higher than 30 percent for an organic mental syndrome secondary to a pituitary tumor in order for the RO to apply new regulations governing the rating of such disability. In its June 2003 remand, the Board noted that the issue had not yet been addressed by the RO and was not before the Board at that time. Unfortunately, the RO still has not complied with the Board's remand order. Thus, the issue is again remanded with the specific instruction to consider amended rating criteria for the veteran's psychiatric disability. The Board also notes that the June 2003 letter concerning VCAA notice did not include the issue of entitlement to a higher initial rating for organic brain syndrome."

OK, so the RO sat on its tush and did nothing for over four years. The Board has accepted responsibility for not maintaining compliance as legally bound. So what? Is there anything we can do to object to the way our "right to compliance with the remand orders" has been handled? Does anyone have any legal accountability to us?

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Guest allanopie

>OK, so the RO sat on its tush and did nothing for over four years. The Board has accepted responsibility for not maintaining compliance as legally bound. So what? Is there anything we can do to object to the way our "right to compliance with the remand orders" has been handled? Does anyone have any legal accountability to us?

Hello Vicki,

I think you have to be a US citizen or atleast here illegally before constitutional laws, such as due process, the right to legal council or bill of rights kick in.

It took me four yrs just to get a hearing at a traveling board with the BVA.

I went to Sen. Maria Cantrel for assistance. I didn't feel I could get a fair evaluation at the RO, so I appealed. I recieved a letter from the BVA & Maria Cantrel that my claim would be decided by the BVA & not remanded back to the RO, as I requested. Maria wished me luck with it. Thats as far as it went.

The next thing I get is a letter from the BVA, saying they would remand it back to the RO. Seems like it sat at some appeals center back east or in florida maybe for several yrs. The last time it was remanded, the RO at St pEtes basacally ignored the BVA's request & the medical opinion, Dr bash provided. Dr Bash sent the BVA a letter pointing out that the RO was in error for not complying on Sept 9th. Havn't hjeard anything. But it wouldn't supprize me to see it remanded back to the same, imcompatant RO.

[The Court further held that a remand by the Court or the Board imposes upon the VA Secretary a concomitant duty to ensure compliance with the terms of the remand, either personally or as 'the head of the Department.' 38 U.S.C.A. Subsection 303 (West 1991).]

This means, the VA has been ignoring what the court thinks for almost 15 yrs, without "anything" or anyone being able to change it.

Sec. Nichols is far more interested in head hunting combat veterans with PTSD these days for cost reduction, than to be interested in forcing these RO's to comply with anything.

Why comply, when a delay or deny will put them in a position to give up or die.

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I think I'll mix it up just a bit and write a letter to U.S. Congressman Jim McCrery and U.S. Senator Mary Landrieu, both representing Louisiana in the hallowed halls of Congress.

I'm going to ask if by chance this indirectly puts the BVA, as a result of the inaction of the NOLA VARO, in contempt of the U.S. Court of Appeals for Veterans Claims. No one has formally appealed the Court's determinations regarding remand compliance requirements, so there is no stay in force like the one regarding Smith V. Nicholson.

Is my logic flawed?

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Terry, can I go ahead and file for a Writ with the Court without writing the RO again and waiting? We were dealing with the New Orleans RO, which has been shut down indefinitely. Although I know the workload has been re-directed to Muskogee OK to be dispersed to St. Pete and St. Louis, I don't know what happened to the records in New Orleans, their physical shape, or if anyone is in there trying to sort things out - period. So, I don't know how long a wait we're talking about, since this isn't a normal situation.

Am I obligated to first try to work out things with whichever RO ends up with this?

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  • HadIt.com Elder

Vicki:

I agree you should file a Writ of Mandamus. You might consider writing the VARO a letter stating your intention to file a Writ of Mandamus unless they contact you with some kind of reasonable timeframe for taking care of your claim.

Good Luck

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OK, will add that to the list of items that we're appealing directly to the Court, those that the BVA denied.

Thanks so much for your help!

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