ptsd Bva Question

[carlie]

This comes verbatium from my BVA Decision:

The veteran has also raised the issues of entitlement to

service connection for a back disorder and PTSD based on in-

service sexual trauma; service connection for depression, the

residuals of a right wrist laceration, gastroesophageal

reflux disease, and a dental disorder as secondary to her

service-connected seizure disorder; an increased rating and

earlier effective date for the grant of service connection

for right shoulder bursitis; clear and unmistakable error in

the RO's January 1981 failure to grant an increase in

compensation for a dependent child; and entitlement to

compensation pursuant to 38 U.S.C.A. § 1151 for a heart

disorder. 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).

The issues that I have made in bold and underlined have been fully adjudicated by the Ro and DRO.

How should I respond to the BVA on these ?

Thanks to all,

carlie

[sixthscents]

It sounds like the BVA didn't get the whole C-File... otherwise how could they have missed the rating decisions from the VARO?

I'd request another copy of my C-File (since it now should be at the VARO - again) and see whats in there. I just cant see the BVA making a mistake like this... how could they miss a rating decision if it was in the file? Or, if you can go and view your C-File with your copies of everything and compare them...

Man carlie thats a hard one... if the C-Files do not match I would resubmit to the BVA with the reasoning that they had an incomplete evidence issue... does that sound right, I mean it's almost a CUE, if the records were in fact in the C-File I think it would be... if they were incomplete then I think not...

entropent... you got any ideas?

Edited October 2, 2007 by sixthscents

[entropent]

several things could have happened

1) as sixthscents suggests, the entire file was not available to bva

2) the issues in bold were adjudicated by the rater and dro, but the maximum benefit under law was not awarded (max percentage, effective date back to date of claim) and there is no clear statement from the vet agreeing with the actions taken and withdrawing the issues from review,

3) the vet did communicate satisfaction with the dro's decision but later submitted a statement in which he/she discussed those issues, and bva did a backflip inferring that the veteran wanted to pursue the issues to bva. sometimes the bva will accept a communication from the vet as a form 9, so it doesn't necessarily matter if those issues were not on the form 9.

4) the bva decisionmaker was flat wrong.

whatever happened, the bva has directed ro to readjudicate these issues, and the ro will try to do so unless you write a very specific letter explaining that you do not want to continue to pursue those issues. if you do that, it will be helpful to all concerned if you specifically communicate what issues you understand to be on remand and under bva jurisdiction, and what issues you unequivocally want to pull off the table.

[Berta]

To have the BVA consider these additional issues as out of their jurisdiction is like saying those claims are still in the appeals process.

If these were denied by the RO and you filed a I-9- I would send a copy of the RO denials and the I-9 to the BVA.

I feel the BVA is quite thorough in preparing their decisions-

but they cannot take jurisdiction over anything that has not been denied and formally appealed to the BVA-

it does seem something is missing-

I sure would send them a letter with the denial decisions and copy of the I-9 they were raised on-

Weird----

The VA attached a claim I have that they have never even decided yet onto my appeal last year.

When I sent the BVA a letter stating that VA had committed prejudicial error in transfer of my Agent Orange death claim to the BVA-

I have no doubt that the BVA checked my file to see if I was correct and they remanded it all immediately.I never got a docket #- it was prejudicial error-

Then- after getting back the entire file and my IMOs, 4 months later the RO said they had never received any IMOs at all from me-ever-

(the BVA certainly had sent them back)

My long point here is that in my opinion the BVA does meticulous work on our claims-

the ROs are very careless-

If they denied your other issues they should have sent you the complete denial rationale etc and attached an I-9 for these specific issues.

Only proof of a denial decision can trigger an appeals process.

I filed a claim over a legal question issue in Jan 2003.

It was a challenge to the new Bonny V Principi regs.

The RO has promised me a decision many times- but I never received one yet-

I wrote to the General COunsel as to this claim because this is where RO should have sent it in the first place.

It is a legal issue.

If you read General Counsel Pres Ops you will see that most of these arise from legal question issues that stem from a claim situation that the ROs cannot handle.

General COunsel however could not take jurisdiction because the claim had never been decided yet.

If you send the BVA those denials and copy of the formal I-9- I think they would have to take jurisdiction-

It happens sometimes that a vet will raises new issues in their I-9- these issues have to be remanded back to the RO for resolve.