Appeals Management Center (amc)

[Wings]

January 31, 2009

RE: 397/AMC

CC: Board of Veterans Appeals

VA File No. xxx-xx-xxxx

BVA Docket No. xx-xx xxx

First Name Last Name

Sreet Address

City, State, Zip code

Tel. Number

Department of Veterans Appeals

Appeals Management Center

1722 Eye Street NW

Washington DC 20421

First Name, Last Name, Pro Se

NOTICE OF DISAGREEMENT (NOD) (6 pages)(evidence attached)

OK, I left it on the web long enough. I work hard to keep my ID protected on the internet. ... I don't like those internet spiders that crawl the web for free information. Thanks everybody for your comments and positive vibes!! ~Wings

Edited February 5, 2009 by Wings

[Wings]

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This was my "Remand", from the BVA to the AMC. ~Wings

Citation Nr: 0828378Decision

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).

[luvHIM]

Wings, I am reading for the first time because I missed the first go round.

I know we here at Hadit don't put much stock in the VA system on any level. But the fact that a decision was made quickly could also be due to the amount of retro they will be paying out if they allow this to stretch out any further. If I read correctly, a win would be about 10-13 years worth, and right now they might have the money to pay out. I know...it is lousy thinking but I have PTSD and am on meds...what can I say. Anyway, here's to keeping an optimistic outlook B) B)

When the decision comes back favorable...my fee for fortune telling is way more reasonable than the 1-800#...LOL!LOL!RLLOL...I cracked myself up.LOL ;) B)

[Wings]

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Shot down, in flames. Just got the letter today, 8 pages of distortions.

My kids do not want me to keep fighting, they do not want me to give the VA another piece of myself. There's only so much left of me to fight them with; and as much as I'd like to fight them until my last breath, I know if I appeal this decision, they will find some reason to make my life very, very miserable.

If I file for a Reconsideration, the Board has already said they will not entertain it. My only recourse would be to go to the Court, but I can already see that I am not going to win there either, no matter how much I think I was wronged.

Maybe I will pick up where this Decision left off, at another time, maybe in another lifetime, but for Now, I want to get back on my faithful pony (named Freedom), and ride with the rest of the Vets who know exactly how to hand salute the DVA, with one finger !!!!!!! I'll be more than happy to hate them for the rest of my life; the feeling will keep me warm at night !!!!!!

I'm glad this is over, at least for nw ;-) ;-) ~Wings

[Wings]

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I'll post the Decision when it published on the BVA server. It's 8 pages, and I would have to hunt and pack (type) until the cows come home, and frankly, I have better things to do with my time. I guess I am feeling a little angry. I could spit and cuss and kick dirt, but this is a family friendly forum . . . I love you guys!! HUGS!! ~Wings

[Pete53]

Wings:

Hang in there.

Pete

[Capt.]

Hello Wings,,,,, This remand and remand and remand thing is the only way the AMC and the VARO,(RO) know how to use effectively concerning dragging out time. They rely on the BVA to send it back with instructions.....REMAND. I hope I did not see you write down that you were giving up...... You have helped me with my struggles and the VA. They want you to be tired and out of gas so the Remand process is how they do it. I like what John said....get yourself a lawyer and the stress level will go down for sure. Also, you brought it up that they made the decision too quickly. That is obvious another tactic ,part of the remand stradegy, but it also means that they did not spend any time reading the evidence. There will be some mistakes in their decision process because of them not reading. It will be up to you or someone to find it and to protest this. Berta even commenting on the quickness of them sending hers to the BVA without reading. But she too saw the flaw in this and moved on their mistake. Although I have a lawyer , I also had this happen to my claim(s). Go ride that Pony and have some fun and relax. Then you might have a different outlook on it and will find the mistakes THEY made to pick it up and throw it at them in the courts. God Bless, and please WINGS...........NEVER GIVE UP......C.C.