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ptsd Wings Bva Docket No.
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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).
USAF 1980-1986, 70% SC PTSD, 100% TDIU (P&T)
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