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).

[vaf]

As for the EED, unless it's a CUE claim, you lose the EED, do you not?

If I had it to do over again, I'd give the AMC two years max before I started making a fuss.

No, the Secretary doesn't pay any sort of penalty -- however -- the VA hates for this kind of thing to become a matter of permanent record, especially if the writ is granted. Also, the OGC's office, from what I understand, HATES writs to begin with, and certainly doesn't want to have to answer to the Judge as to why the VA screwed things up over procedural (vs. medically analytical) issues.

[Philip Rogers]

As long as a claim is "continually prosecuted" the ED, or EED, is protected.

pr

[Berta]

Philip is Correct-

as to the EED (dont know how VA can protect ED )

The VA has made some Extraordinary awards- those over $250,000 in retro because vets protected their EEDS by continual prosecution of their claims.

BTW all- I suggest that if you have claim for mental disability and do expect a high retro award-you might want to get a psychiatrict opinion (or have it included in any IMO you get) that states that you are competent to handle your funds (although in some cases this is not good idea for the vet and they should have a payee)

I have noticed lately that VA, with a large retro payment pending to a PTSD or SC mentally disabled vet-whips out the competency BS as fast as they can-

this can tie up the retro for many many months-

in some cases like a good friend of mine- he felt this was good idea for his wife to become payee and she was mental health professional (his award was almost 1/4 mill)and he would have spent it in a weekend-but it took months and months fpr the VA to interview his wife to decide if she was 'competent' as his payee.

This is the vet who I helped who wanted to take me to lunch when he got his award- to lunch in Ireland!

It took him 12 years to succeed but he wouldn't give up.

[vaf]

That EED stuff always confuses me! Thanks all!

[Wings]

As long as a claim is "continually prosecuted" the ED, or EED, is protected.

pr

PR, You're right, unless it's a CUE claim, you must continually prosecute the claim to keep the effective date. ~Wings

P.S. If the initial VARO Denial of Claim was for Lack of Medical Evidence or Clear and Unmistakable Error (CUE), I would be tempted to let that Claim die, and not file an NOD . . . then next year, resurrect with "new and material evidence", or file a CUE claim if it's that obvious.

You might lose a year of Effective Date, but getting a favorable rating with "new and material evidence" might be quicker in the long run. It just seems that appeals are generally running years and years, and keeping it at the RO level is the preferred goal at this point in time, with the VA system.

Just trying to think outside the box, but I realize this may be the best advice, even illogical . . . ~Wings

[Wings]

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HOLY COW !! I found a recent CAVC Case that adds one more important element (non-finality) to my claim; should I send them the case ???? ~Wings

Because the governing rule of law established by the Court of Appeals for Veterans Claims (“Veterans Court”) requires that failure to notify a veteran of his right of appeal renders the Secretary of Veterans Affairs’ decision non-final, see Best v. Brown, 10 Vet. App. 322, 325 (1997), we vacate and remand.

2008/8/15 07-7217.pdf CAVC AG v. Peake Precedent

http://www.cafc.uscourts.gov/opinions/07-7217.pdf

United States Court of Appeals for the Federal Circuit

Opinions & Orders http://www.cafc.uscourts.gov/dailylog.html