ptsd Wings Bva Docket No.

[Wings]

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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).

[Wings]

Wings

Dean Vorgey is the name of the VSO that helped me, even though he was not my POA, I told him how long my claim had been there and he said he did n t care if he did nt have the POA and he got my claim moving thru the system again.

His office is in the same bldg as the AMC, American Legion, telephone number

202 530 9142 or 41 or 40 or 43. One is his direct line, but I can not remember which one.

Fax 202 530 0126

This link may help you find contact numbers AMC

Happy Trails

Paul

Since I do not have a POA, it would be a simple matter of faxing the papers. I might give him a call. It's still a relatively "new" remand, but I don't want it to get "lost". I did email the AMC on Friday . . .

To: <amcquery@vba.va.gov>

Dear AMC,

Please tell me if my "remand" is in the possession and jurisdiction of

the AMC, and if so, provide your mailing address. Thank you.

[Wings]

You're all probably sick of hearing our story about our experience with the AMC, but if you believe that "expeditious" is an enforceable Board directive, you are going to be disappointed. We were at the AMC since October 2005 until we finally filed a writ of mandamus request to the Court in April 2008, after the Board tried to remand again to the AMC in March 2008 (for the second time). It's still pending, and we finally got some movement, so the Court's monitoring the situation put a stick of dynamite under the AMC's collective butt...

In a nutshell, we filed an appeal to the Board in 1994. C & P exams were ordered in 1995, 1998 and 1999. We didn't hear anything until the Board issued its first remand back to the VARO in 2001-- the VARO did nothing. In 2003, the Board re-issued the same remand back to the VARO -- the VARO did nothing but order another C & P examination. In 2005, the Board re-issued the remand again, only this time to the AMC. The AMC did nothing. The Board attempted to re-remand it again to the AMC this past March, when we finally had enough and asked for the writ. It is not a complicated procedure, and as loathe as the Court is to get involved with VA adjudication issues, it did call "the agency" on the carpet in a nice way and told them to get moving, filing reports every 30 days, etc. We just received the SSOC from the AMC and it's a denial, of course, but so full of holes you can drive a tank through it. They list evidence we sent and never discuss it in the decision, they don't list evidence we sent and don't discuss it in the decision, or they cherry-pick evidence listed for aspects of it that favor a denial, and disregard any discussion of the evidence in my husband's favor. So, the response is about three inches high that includes evidence that they're going to receive all over again, complete with all the legal precedents, statutes, etc., that they've totally disregarded. However, this time, we're also copying the Board and the Court.

At least there's movement, and if the Board supports the AMC's decision, we'll move on to the Court where we can get an attorney. We're expecting a dismissal of the writ as being moot any day now, which is about the most a veteran can hope for. So, you see, you can be at the AMC for years and years -- don't give the AMC more time to rate a claim than you would wait for the Board to review your appeal.

I don't know how old your claim is since you say you filed an appeal to the BVA in 1994, but after reading some of these posts it almost seems smarter to let the claim die, then resurrect with "new and material evidence". What do you guys think of this strategy? Not that I could withdraw a CUE claim since that's one bite at the apple but other claims might get a faster decision with new and material evidence . . . ~Wings

[Wings]

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WRIT OF MANDAMUS ISSUED ONLY IN EXTRAORDINARY SITUATIONS

The remedy of issuing a writ of mandamus “is a drastic one, to be invoked only in extraordinary situations.” Kerr v. U.S. Dist. Ct., 426 U.S. 394, 402 (1976).

“Before a Court may issue a writ, a petitioner must demonstrate (1) a clear and indisputable right to the writ and (2) a lack of an adequate alternative means to obtain the relief sought.” Matter of Cox, 10 Vet.App. 361, 370, (1997) citing Erspamer v. Derwinski, 1 Vet.App. 3, 9 (1990); see also Hahneman Univ. v. Edgar, 74 F.3d 456, 461 (3d Cir. 1996).

“As for the first requirement, the Court in Erspamer quoted United States v. Black as follows:

The Court will not interfere by mandamus with the executive officers of the Government in the exercise of their ordinary official duties, even where those duties require an interpretation of the law, the court having no appellate power for that purpose; but when they refuse to act in a case at all, ... a mandamus may be issued to compel them.

United States v. Black, 128 U.S. 40, 48 (1888) (emphasis added): Erspamer, supra; see also Edgar, supra (“writ of mandamus is a drastic remedy that a court should grant only in extraordinary circumstances in response to an act amounting to a judicial usurpation of power”) (internal quotation marks omitted) (quoting Will v. United States, 389 U.S. 90, 95 (1967)). Cox, supra; see also Cowart v. Principi, 16 Vet.App. 18, 19 (2002) (denying writ in appeal twice remanded from the Court where doctor’s statement gave opinion of life expectancy of less than six months, in part, because the Board had advanced the case on the docket.); see also Lamb v. Principi, 284 F.3d 1378 (Fed.Cir.2002) (Federal Circuit refused to overturn Court of Appeals for Veterans Claims (Court) denial of writ to stop the Board from remanding the veteran’s claim to the regional office thereby forcing the Board to act on the claim remanded from the Court. The Federal Circuit found that it had the authority to review the Court of Appeals for Veteran’s Claims denial of a writ and, in dicta, found the Board remand of the veteran’s case to the regional office, in the facts of this case, was helping the claimant).

http://www.dav.org/veterans/documents/DAV_...t_citations.doc.

[vaf]

Quite right, a mandamus is for use in extreme cases. Ours was extreme, at least the Judge must have thought so, because in other writ requests I looked at, it appears when the Court thinks the request lacks merit, they get denied pretty quickly.

The initial claim was in August 1993, we didn't get the decision until a year later, and we appealed it to the Board.

In our writ request, the Judge stated, "While the Court cannot intervene if delay is the product of an overburdened system, the Court is not convinced that the delay in this case amounts to anything other than an arbitrary refusal to act on the petitioner's claims. See Constanza v. West, 12. Vet.App. 133, 143 (1999) (per curiam order). The Secretary has not explained whether the inability to develop the petitioner's claims and issue a rating decision since 2005 is due to an overburdened system or simply an arbitary refusal to act. Although the Secretary addresses why the claims have not been developed in the last months while the claims file is with the OGC (personal note: we also have a separate appeal before the Court of Veterans Appeals), the Secretary has not sufficiently explained why, in the three years since the Board remanded these claims, VA has failed to develop them and issue a rating decision."

Interestingly enough, the Court didn't discuss the 11 years between the time we first filed the appeal to the Board and when the AMC finally got the remand to develop. Why the Court would give the VA a pass on that is beyond me, but I guess as long as we got what we asked for (a rating decision), it doesn't matter.

We didn't have anymore "new and material" evidence. We had even included an IMO from Dr. Craig Bash, which is one of the pieces of evidence they listed, but never discussed or gave reasons or bases for dismissing it.

Had I known back then what I've learned between then and now about handling claims, I never would have let seven years go by after the initial Board appeal. I would have asked for a writ back then.

[Wings]

Quite right, a mandamus is for use in extreme cases. Ours was extreme, at least the Judge must have thought so, because in other writ requests I looked at, it appears when the Court thinks the request lacks merit, they get denied pretty quickly.

The initial claim was in August 1993, we didn't get the decision until a year later, and we appealed it to the Board.

In our writ request, the Judge stated,

"While the Court cannot intervene if delay is the product of an overburdened system, the Court is not convinced that the delay in this case amounts to anything other than an arbitrary refusal to act on the petitioner's claims. See Constanza v. West, 12. Vet.App. 133, 143 (1999) (per curiam order).

The Secretary has not explained whether the inability to develop the petitioner's claims and issue a rating decision since 2005 is due to an overburdened system or simply an arbitary refusal to act. Although the Secretary addresses why the claims have not been developed in the last months while the claims file is with the OGC (personal note: we also have a separate appeal before the Court of Veterans Appeals), the Secretary has not sufficiently explained why, in the three years since the Board remanded these claims, VA has failed to develop them and issue a rating decision."

Interestingly enough, the Court didn't discuss the 11 years between the time we first filed the appeal to the Board and when the AMC finally got the remand to develop. Why the Court would give the VA a pass on that is beyond me, but I guess as long as we got what we asked for (a rating decision), it doesn't matter.

We didn't have anymore "new and material" evidence. We had even included an IMO from Dr. Craig Bash, which is one of the pieces of evidence they listed, but never discussed or gave reasons or bases for dismissing it.

Had I known back then what I've learned between then and now about handling claims, I never would have let seven years go by after the initial Board appeal. I would have asked for a writ back then.

In retrospect, how much time would you give the AMC before sending a WRIT? The Veterans Court's own Judges have the authority to tell the Board to act, but they never do set a deadline; furthermore, there are no real consequences for the Secretary if he does not act poste haste ... ~Wings

[Philip Rogers]

Wings, wouldn't letting a claim die lose the EED!

pr

I don't know how old your claim is since you say you filed an appeal to the BVA in 1994, but after reading some of these posts it almost seems smarter to let the claim die, then resurrect with "new and material evidence". What do you guys think of this strategy? Not that I could withdraw a CUE claim since that's one bite at the apple but other claims might get a faster decision with new and material evidence . . . ~Wings