ptsd Wings Bva Docket No.

[Wings]

x

x

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Phone call to AMC sez they have my claim and is "before a rating specialist"

Phone call to VARO sez they don't have it.

When I read my BVA Remand, I am VERY confused as to who has jurisdiction, who has it, where is it going, etc?

Tell me what you read from the remand found here http://www.va.gov/vetapp08/files4/0828378.txt

Citation Nr: 0828378

Decision Date: 08/21/08 Archive Date: 09/02/08

DOCKET NO. 06-33 573 ) DATE

)

)

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(b)

(2007).

[Pete53]

Writ of Mandamus

[MARINEVET]

Wow. I do not feel so good after reading these posts indicating how long these claims have been at the AMC as a result of remands. When my claim was remanded in July 2008 for a C&P examination I thought the wait was nearly over. What a surprise, I guess I can expect more waiting.

The Claim itself is almost 11 years old, it's only that the remand is 3 years old. So I like to think of it fondly. My Dad likens it to fighting a really bad insurance company, you just have to keep on keeping on. It's nice to have comraderie on the journey.

[MikeR]

Well they are finally moving on it. I had 2 C&P exams in 2 weeks. One at the end of Sept, and one in Early October. I inquired today and they say that they are still collecting information. I sent a letter from my Foot Surgeon, as well as the Privacy act form so they could collect more information from them and I am fairly certain that it will get to them quickly. I am guessing that they have enough information for my PTSD claim at this time. I still cannot figure out how they would order a C&P without verifying my stressors, as it was a condition spelled out in the remand. Of course I have severe PTSD with Severe Depression and a GAF of 45. I went and got my own doctor to put me on meds since early Oct. It has helped some, and frankly if that is all I get out of this then I would not be shocked. I have not read of many people applying for PTSD and getting a rating for Depression instead.

[Wings]

Yup, nothing like protecting "0%" ! It's service connected but only gets you counseling. ;-)

pr

PR, I AM GOING TO BED NOW --PLEASE WAKE ME IN 10 YEARS LOL!! HUGS!! ~Wings

[Wings]

Wings, I know it's all my fault and when the check comes in you can thank me. You'll be happy to hear the price of lobster is at an all time low. Mmmmmmmmmmmmmmmm, good! I know, I said I'd never mention it again but I lied. "SSDI, next!"

pr

For you, my Brother !!

[Philip Rogers]

I forget where I was, but they auctioned off a lobster like that and the high bidder sent it to a Boston aquarium, for the remander of it's life. Nice, tho!!!!!!

For you, my Brother !!