HadIt.com Elder Wings Posted November 13, 2008 HadIt.com Elder Share Posted November 13, 2008 x x x 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). Link to comment Share on other sites More sharing options...
HadIt.com Elder Philip Rogers Posted November 14, 2008 HadIt.com Elder Share Posted November 14, 2008 Wings, The RO, Oakland, is in charge, via the AMC, however any decision should be by the RO. Anyone other than the RO making the decision is an error. I still feel it's a winner. Never give up!!!!! jmo pr Link to comment Share on other sites More sharing options...
HadIt.com Elder Wings Posted November 14, 2008 Author HadIt.com Elder Share Posted November 14, 2008 Wings, The RO, Oakland, is in charge, via the AMC, however any decision should be by the RO. Anyone other than the RO making the decision is an error. I still feel it's a winner. Never give up!!!!! jmo pr x x x When I read the Remand for first time, I thought that it was, indeed, supposed to go back to my VARO Oakland. BUT, when I called Oakland, they said my Appeal was at the AMC. So, then I called AMC, and heard "Your Appeal is with a rating specialist as of 10/27/08, and should be decided within 6 weeks". Of course, I took this information with a grain of salt . . . Sooooo, do I need to push the envelope, and try to track my claim back to my Regional Office??? I guess I hear you all saying that another VARO may do the work (just as San Diego took jurisdiction over my NOD) . . . I just don't want it to get "lost" in the system AND, I think I can get a couple of folks to write Notorized Lay Statements to the effect that I did, in fact, present my Claims to the County VA Office for claims representaion within weeks of military discharge. Anyway, I do have a docket number, is that how I will track my claim??? I'm not very exited or hopeful, but I did write my heart out on this PTSD/CUE claim, and I did think the remand wasn't all that bad; they did simplify my issues on appeal and understand that ... "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". Does anybody have a link to Harris v. Derwinski, 1 Vet. App. 180 (1991)??? On second thought, maybe I AM a little exited!!!!!!! ~Wings P.S. Mr. Rogers, This is ALL YOUR FAULT LOL!! Link to comment Share on other sites More sharing options...
HadIt.com Elder Wings Posted November 14, 2008 Author HadIt.com Elder Share Posted November 14, 2008 x x x One more thing, on January 25th 2009, I'll have been Service-Connected for 10 years!! Soooo, here's hoping (ironically), they drag this out for another couple months LOL!! According to VA Regulations, Section 1159 of title 38, United States Code, provides: Service connection for any disability or death granted under this title which has been in force for ten or more years shall not be severed . . . except upon a showing that the original grant of service connection was based on fraud or it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge. The mentioned period shall be computed from the date determined by the Secretary as the date on which the status commenced for rating purposes. ALSO, "Pursuant to section 1159, a determination of service connection that has been in force for ten or more years generally may not be severed, even if it was clearly and unmistakably erroneous." See VAOPGCPREC 6-2002, Protection of Service Connection—38 U.S.C. § 1159; 38 C.F.R. § 3.957; and VAOPGCPREC 13-1996 Severance of Entitlement to Benefits under 38 U.S.C. § 1151 Precedent Opinions for 1989 to 2008 http://www.va.gov/ogc/precedentopinions.asp Link to comment Share on other sites More sharing options...
Ricky Posted November 14, 2008 Share Posted November 14, 2008 Keep in mind that the AMC is simply an extension of the VARO. Therefore, if your VARO is covered with claims the AMC more that likely keep it and function as the VARO making a final decision on your claim. Based upon what you have been told on the telephone this is what has happened. All remands back to the VARO are via the AMC some they keep some they don't just depends on the work load of the VARO. Link to comment Share on other sites More sharing options...
HadIt.com Elder Wings Posted November 14, 2008 Author HadIt.com Elder Share Posted November 14, 2008 Keep in mind that the AMC is simply an extension of the VARO. Therefore, if your VARO is covered with claims the AMC more that likely keep it and function as the VARO making a final decision on your claim. Based upon what you have been told on the telephone this is what has happened. All remands back to the VARO are via the AMC some they keep some they don't just depends on the work load of the VARO. I'm going to call the AMC again. Thanks all !! ~Wings Link to comment Share on other sites More sharing options...
HadIt.com Elder Philip Rogers Posted November 14, 2008 HadIt.com Elder Share Posted November 14, 2008 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 x x x When I read the Remand for first time, I thought that it was, indeed, supposed to go back to my VARO Oakland. BUT, when I called Oakland, they said my Appeal was at the AMC. So, then I called AMC, and heard "Your Appeal is with a rating specialist as of 10/27/08, and should be decided within 6 weeks". Of course, I took this information with a grain of salt . . . Sooooo, do I need to push the envelope, and try to track my claim back to my Regional Office??? I guess I hear you all saying that another VARO may do the work (just as San Diego took jurisdiction over my NOD) . . . I just don't want it to get "lost" in the system AND, I think I can get a couple of folks to write Notorized Lay Statements to the effect that I did, in fact, present my Claims to the County VA Office for claims representaion within weeks of military discharge. Anyway, I do have a docket number, is that how I will track my claim??? I'm not very exited or hopeful, but I did write my heart out on this PTSD/CUE claim, and I did think the remand wasn't all that bad; they did simplify my issues on appeal and understand that ... "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". Does anybody have a link to Harris v. Derwinski, 1 Vet. App. 180 (1991)??? On second thought, maybe I AM a little exited!!!!!!! ~Wings P.S. Mr. Rogers, This is ALL YOUR FAULT LOL!! Link to comment Share on other sites More sharing options...
Question
Wings
x
x
x
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).
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