Appeals Management Center

[gp747]

i have claim at appeals management center. i i have been there two years this time on second remand . called and one time they said waiting on third signature , called second time said waitin on decision ,called third time said decision made waiting on authorization , would not tell me decision. asked if this meant if i had won my claim guy said not necessarily. said would recieve notice 4 to 5 weeks . any body been through this ? or know what is happening

[Wings]

Berta,

Apparently, I won my CUE claim based on a VARO Decision, 1988, dishonorable for VA purposes 1984-1986. They admit they are wrong, and sorry.

County level service-oficers operate under State Laws, not Federal, so I imagine they have their own system for retiring their office files.

I'd already submitted that County SO Letter to the RO . . .

-snip-from my NOD--

CLAIM FOR TIMELY VA MEDICAL CARE

Eligibility of Certain Persons Administratively Discharged Under Other Than Honorable Conditions, 38 CFR Sec. 3.360(a)(b)©

San Diego VARO, Rating Decision 1/20/05, denial of veteran’s claim giving cause to this BVA Appeal --suggests that veteran’s “original claim” was a mere, singular claim for a VA Loan Guaranty Benefit. That same RO decision further decrees, “That Loan Guaranty Benefit --still required a Character of Discharge determination“.

But even if that were true, that Sec. 3.12 Character of Discharge, administrative decision --still required notice of Entitlement to VA Health Care and related benefits. By VA Directive, veteran’s claim of entitlement to a VA Loan Guaranty Benefit, was also a “claim” to Chapter 17, VA Health Care and related benefit(s).

The VA must, “Consider any claim which requires review of a statutory bar or preparation of a character of discharge determination as a claim for this benefit”, M21-1MR, Part III, Subpart v, Chapter ll, Section B, (formerly VA Manual M21-1, Part IV, Chapter 11.01(j). “Effective October 8, 1977, any serviceperson who is discharged under other than honorable conditions is eligible for VA health care and related benefits for any disability incurred or aggravated in the line of duty during active service, provided that she was not discharged by reason of a bad conduct discharge, or under one of the Statutory Bars of Sec. 3.12©,” (38 CFR 3.360). And she was not discharged under Sec. 3.12©.

-snip-

Enter County Service Officer on CA State Form CA-5

(CA-5) Veterans Benefits Verification and Referral

(CA-5), Veterans Benefits Verification and Referral; veteran’s signature, dated DECEMBER 23, 1986.

(CA-5), Veterans Benefits Verification and Referral; mandatory reporting of veteran’s signature and social security number under the Social Security Act, Sec. 402(a)(25), “to assist in the evidence gathering process and explore potential [veterans] benefits.”

(CA-5)(reverse side), Veterans Benefits Verification and Referral, “To Obtain New Veterans’ Benefits, Have the veteran hand carry copies of the Form [CA-5], along with medical documents, military papers [DD-214], etc., to the Veterans Administration Office, to help substantiate [veteran‘s] claim”.

(CA-5), Veterans Benefits Verification and Referral, see Veterans’ Service Officer, dated signature, MARCH 25, 1987. See comments: “CLAIM BEING REVIEWED” and “STILL IN REVIEW”.

[Philip Rogers]

The important thing is the CUE was granted and that's no money,"yet." No one said it would be easy. I understand why they denied the EED but you should consider it just a bump in the road. I still feel it's a winner!!! jmo

pr

((((((pr)))))))

CUE claim granted, EED claim denied = NO MONEY

I'm bummed.

[Wings]

The important thing is the CUE was granted and that's no money,"yet." No one said it would be easy. I understand why they denied the EED but you should consider it just a bump in the road. I still feel it's a winner!!! jmo

pr

OK PR, then I'll need some new shocks for this old jalopy because those little bumps in the road --are making me wet my pants! ROFLMAO! I'll wait for the SSOC, study some case law --and maybe hire an attorney to take 30% ??? What's your JMO on Attorney's at this juncture? HUGS!! ~Wings

[hurryupnwait]

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Found out today, through an American Legion SO (thanks Paul and Betty), only my CUE claim was granted, but my EED claim was denied, saying, "there's no evidence that you filed a claim on a VA Form [ ] prescribed by the Secretary". My old County SO wrote a letter to the RO, that there is evidence of her having filed a claim within one year of discherge, but all of our files are destroyed/shredded every 7 years".

SHIT!!! I'll have to wait a month to get the SSOC, and go from there. I'm NOT done FIGHTING !!! ~Wings

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Citation Nr: 0828378

Decision Date: 08/21/08

Archive Date: 09/02/08

DOCKET NO. 06-33 573

On appeal from the Department of Veterans Affairs Regional Office in Oakland, California

THE ISSUE

Entitlement to an effective date prior to January 25, 1999 for the grant of service connection for post-traumatic stress disorder (PTSD).

ATTORNEY FOR THE BOARD

M. Sorisio, Associate Counsel

INTRODUCTION

The appellant is a veteran who served on active duty from October 1980 to November 1986.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the San Diego, California Department of Veterans Affairs (VA) Regional Office (RO) that denied an effective date prior to January 25, 1999 for the grant of service connection for PTSD.

The veteran’s claims file is now in the jurisdiction of the Oakland, California RO.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on her part is required.

REMAND

In a June 2008 submission to the Board, the veteran alleged that the RO committed clear and unmistakable error (CUE) in an August 1988 administrative decision --that found that she had a dishonorable period of service from October 13, 1984 to November 21, 1986.

Specifically, she argued that --the finding that she had a dishonorable period of service, and that a failure to notify her of the August 1988 decision were CUE.

A review of the record indicates that she has previously raised similar arguments; however, the RO has not adequately addressed the veteran's allegations of CUE in the August 1988 administrative decision.

While the veteran indicated that she was waiving initial review of the CUE claim by the RO, the veteran is unable to waive such review as the Board does not currently have jurisdiction over a CUE claim. 38 C.F.R. §§ 20.101, 20.200.

Notably, the veteran's effective date claim is a "freestanding" claim; she did not appeal the November 1999 rating decision that assigned the effective date of January 25, 1999 and that decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104(a).

Where a decision assigning an effective date is final, only a request for revision based on CUE can result in the assignment of an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006).

Hence, the allegations of CUE are inextricably intertwined with the earlier effective date issue on appeal, and both issues must be adequately addressed prior to final adjudication of the veteran's claim for an effective date prior to January 25, 1999 for the grant of service connection for PTSD. See Harris v. Derwinski, 1 Vet. App. 180 (1991).

Accordingly, the case is REMANDED for the following:

1. The RO should adjudicate the CUE claim and notify the veteran of the decision and

of her appellate rights.

If the CUE claim is denied and the veteran files a timely notice of disagreement, the RO should issue an appropriate statement of the case (SOC) and notify the veteran that the matter will be before the Board only if a timely substantive appeal is submitted.

2. The RO should then readjudicate the earlier effective date claim for the grant

of service connection for PTSD, considering the determination in the CUE claim.

If the effective date claim remains denied, the RO should issue an

appropriate supplemental SOC and give the veteran the opportunity to respond. The

case should then be returned to the Board, if in order, for further review.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an

expeditious manner.

_________________________________________________

George R. Senyk

Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100( (2007).

Wings

You're welcome! Glad I could help.

Mysterious what happened to the old county SO letter, shredded, misplaced, lost in mail or the SO never sent it.

I called my old County SO to find out if they purged my file and they said that they only do that when there is no activity for 4 years. My file had activity in June this year. I wonder if I should get a copy from them anyway.

Happy Holidays

Paul

[Wings]

Wings

You're welcome! Glad I could help.

Mysterious what happened to the old county SO letter, shredded, misplaced, lost in mail or the SO never sent it.

I called my old County SO to find out if they purged my file and they said that they only do that when there is no activity for 4 years. My file had activity in June this year. I wonder if I should get a copy from them anyway.

Happy Holidays

Paul

Paul, Thanks again, your SO was one of the good guys . . . I did submit that County SO Letter to the VARO, do not know if it was sent to the BVA. I will double check. AND, I was wrong about the County SO retiring files at 7 years, their regulations destroy files at 3 years!

-SNIP-

EVIDENCE OF “ORIGINAL” CLAIM

Veterans Services Office, Administrative Letter, 2/09/05; which states, “Veteran's Name did in fact have a claim being reviewed as far back as March 1987, but this office maintains files not longer than 3 years [and] all documents and/or correspondence with the Department of Veterans Affairs would have been destroyed long ago,” (C-file). Veteran asserts that a folder was opened in her name which filed, at minimum, her CA-5 Veterans Benefits Verification and Referral Form, a copy of her DD-214, and a copy of her Air Force Discharge Examination.

[Philip Rogers]

Wings, jmo but I'd hold off on an atty, at this time. You can appeal, their decision, w/an atty, later, if you disagree. I still feel it's a winner but also believe they are not going to give up easily, due to the size of the award. I realize the waiting takes it's toll but at least you have 100% income, while you're waiting. Again, jmo.

pr

OK PR, then I'll need some new shocks for this old jalopy because those little bumps in the road --are making me wet my pants! ROFLMAO! I'll wait for the SSOC, study some case law --and maybe hire an attorney to take 30% ??? What's your JMO on Attorney's at this juncture? HUGS!! ~Wings