Bva Remand

[VetsLady]

Hi,

Can anyone tell me why AMC is returning a remanded claim (all development was completed) to DC?

Who does make the decision? From what I have read, it seems like the AMC makes a recommendation

to the BVA and BVA will concur or deny. Either way, can the BVA can reverse the decision? We don't know

what the decision is yet, if any. Will that actually come from AMC via snail mail or BVA? BTW, we self-rep

and plan to keep it that way. Last SO did nothing for the claim.

Claim was awarded 70% in April 08, but still had one other issue on appeal that went the whole nine yards to

BVA.

We are going in to the 7th year of this claim.

Thoughts appreciated.

[vaf]

Yes, the claims file is supposed to go to the Board between the time the AMC issues the SOC and the Board makes its decision.

I would send another IRIS inquiry to confirm that your appeal has, in fact, reached the Board. We discovered that for some reason, our VARO told the Board my husband had withdrawn his appeal when he did not. We found out within two months after he had allegedly done this (this is a BIG error in the absence of any correspondence that could be remotely construed to be a withdrawal request), but it could have been much worse, and we're not convinced this was an accident. If it was, it follows on the heels of our having to file a Writ of Mandamus complaint with the Court last year to strongarm the AMC into issuing an SOC after having done nothing with the appeal after almost four years.

If the SOC recommends a denial and the Board upholds it, or if the Board upholds any part of a decision with which you don't agree, be that the question of service connection, effective date, and/or rating percentage, you can either ask the Board to reconsider (which I consider a waste of time), or appeal it to the Court of Appeals for Veterans Claims. At that point, you would probably hear from a host of veterans law attorneys who monitor new filings at the Court, in their effort to have your husband become a client. It's at that point that the appeal leaves the Veterans Administration system and enters the judicial system.

No evidence may be submitted to the Court that was not available to the Board (i.e., no "new" evidence). The Court only reviews legal procedure, not medical differences of opinion, so a "win" at the Court would be a remand back to the Board, to have the Board review the appeal within the legal structure dictated by the Court. I apologize if I'm telling you something of which you're already aware, but I didn't know if you had ever entered this territory before, so I thought I'd mention what to expect.

Edited September 7, 2009 by vaf

[VetsLady]

vaf,

Thx for explanation. Yes, I am aware of how the claim process is suppose to be. If they do SC for whatever %, we will take that and file reconsideration for EED or higher %. His disease will never get better and their is no medication that can make it any better. Unfortunately, it is what it is. The docs tried 3 times to treat, none of which worked and his condition has only worsened with new manifestations and residuals pertaining to the disease cropping up here and there. We accept it and move forward.

I'll send another IRIS this evening and perhaps when "IRIS" gets to the office, she/he will respond that his file is there. They told me last Friday it was headed to DC, but would prefer to confirm it did arrive. Intact and in totality.

Thx for the words of advice. Wouldn't it be grand if I picked up our mail tomorrow and AMC decision with SC is in there.....whoo-hoo, that would be a postiive note. VLJ saw during the hearing where the VARO clearly made an error in their SSOC issued on the appealed matter last year. It's not really a CUE, but certainly was on the line and in the grey area.

One thing I am curious about, do they go all the way back to day 1 for an ED? Or, do they go to the date of the QTC exam? Or to the date he was eligible for SSD? Part of the reason he was SSD was this disease but SSA picked the one that would prevent him from doing what he did and that was primary even though we had the other conditions listed. What he is already SC for is an AO issue so retro went back to 1 year prior to filing the original claim. % was incorrect but planned to go back in and argue that after the appeal decision came back. Should mention, he was one sick puppy when we filed, medrecs verify that. He didn't have an exam until 8/08 when he was already pst the point of treatment and doc gave a Nexus opinion of more likely than not, same with his private med doc. We'll see what happens and go from there.

[vaf]

I'm somewhat hazy on effective dates. Someone will step in if I'm wrong, but my understanding is that with initial claims filed within one year of discharge, the effective date would be the day after discharge. With other claims, it's supposed to be the date of claim, but the VA will often try to make the effective date the date of the C & P exam that follows the claim filing. We've had our share, as most folks here have, of times we have to argue for an earlier effective date on a claim that's been granted.

Inferred claims are another story. It doesn't sound like you're involved with an inferred claim, but most of the discussion i've found on inferred claims involves a veteran being examined for one condition at the VA, however, says or does something that indicates the veteran may qualify for TDIU (for instance, being examined for back problems, and mentioning they've had to quit a job due to back pain). The VA then becomes aware of this, and should infer that a claim has been made, however, that hardly ever happens to my knowledge, and the veteran would have to file a claim, and then point back to the date of the inferred claim and claim that earlier effective date.

[Berta]

VAF said:

"No evidence may be submitted to the Court that was not available to the Board (i.e., no "new" evidence). The Court only reviews legal procedure, not medical differences of opinion, so a "win" at the Court would be a remand back to the Board, to have the Board review the appeal within the legal structure dictated by the Court. I apologize if I'm telling you something of which you're already aware, but I didn't know if you had ever entered this territory before, so I thought I'd mention what to expect."

This point always bears repeating- thanks VAF-

and the lawyers who rep vets at the CAVC cannot perform a miracle-they too as well as the court only can use the established record that the BVA had.

A CAVC remand however can open the door again for submission or more evidence but this can take years.

VAF is right on the EEDS too-

but in some cases when a vet gets TDIU or 100% and they have a prior SSA award solely for exactly same condition and the SSA award is at least one year prior to their filing date-the VA will often use a date that complies with the SSA findings as the EED-but I have never seen them go back further then one year on that.One year prior to the filing date of the VA claim.

[VetsLady]

VAF said:

"No evidence may be submitted to the Court that was not available to the Board (i.e., no "new" evidence). The Court only reviews legal procedure, not medical differences of opinion, so a "win" at the Court would be a remand back to the Board, to have the Board review the appeal within the legal structure dictated by the Court. I apologize if I'm telling you something of which you're already aware, but I didn't know if you had ever entered this territory before, so I thought I'd mention what to expect."

This point always bears repeating- thanks VAF-

and the lawyers who rep vets at the CAVC cannot perform a miracle-they too as well as the court only can use the established record that the BVA had.

A CAVC remand however can open the door again for submission or more evidence but this can take years.

VAF is right on the EEDS too-

but in some cases when a vet gets TDIU or 100% and they have a prior SSA award solely for exactly same condition and the SSA award is at least one year prior to their filing date-the VA will often use a date that complies with the SSA findings as the EED-but I have never seen them go back further then one year on that.One year prior to the filing date of the VA claim.

[VetsLady]

Didn't mean to hit the quote button, excuse me on that whoopsie.

Original file date was 2/03, granted AO related SC hence SC date is one year prior to filing the original claim.

Our of the service a long time ago, so no one year after discharge rule applies here.

SSD applied for 1/06 granted 1st time in, ED 6/06. Claim for SC with VA is still ongoing at that point, and, at

that point his appeal had already been filed. We filed for a DRO review at the RO level just a year shy of the

original file date. Denied again. Then the SC comes in 4/08 - with a hand on the shoulder from our local

Congressman, it took from 2/04 - 4/08 - over two years to prove DH stepped foot in Vietnam. Ok, so that part

is over and done with and at a later date, we'll file for EED as they gave him a pittance of a % up until the date

QTC doctor saw him, thats when he rec'd the 70%. So, for the time being, we put that aside.

The current issue on appeal is what we're dealing with now. Just prior to his hearing date in Nov.08, said SO

(and I will not name them as there may be some Vets getting a fair shake with them) suggests he file for TDIU.

He files in Oct., Heaing is in Nov., Appeal is remanded for further development on a PTSD issue of which since it

was on his original claim, and no one had addressed it, the VLJ felt it needed addressing and rightfully so. VA was

ordered to verify the in-service claimed stressor that my spouse didn't have any recollection of until talking with a

buddy of his years later and he has never had a dx of PTSD, possible PTSD, but not definetive. Again, at the initiation

of the claim in '03, said SO told us greenies to list every little ache and pain you may have rather than concentrating on

2 main illnesses/disease as all the other issues were symptoms and would fall under the 2 illnessess/disease....

Filing a TDIU claim just prior to a BVA hearing was not a smart thing to do, we live, we learn. He was denied TDIU

because his SC was not what SSA disabled him for, although it was on his app, SSA disabled him 100% for the non-

SC condition. Fair enough. Had he only had the 1 condition and not the other, SSA would have approved him

forthright anyway, and VA would have denied him as it had not been SC when the TDIU claim was filed.

TDIU is history now. Should they SC him for the current issue on appeal, even at 30% (it should be higher), adding

math the way VA does, he'll start with 50, (20+30) add 20, add another 20, then 3 10's and he'll be at 100%

I understand their rating schedule. Take the 1st 2 highest, add them together, then go from there.

My questions were answered by this forum, we'll have to wait and see what happens on the ED. If they go back to

the original file date or use the SSD date, it's a complicated issues yet very simple. Some periods he would fit into

a 100% disabling period of almost 1 year, then to a 50 then back to 100 and this went on over the course of 4

years.

We are advised that his original claim "fell through the cracks" - think about this, he files in 2/03, denied, filed for a

DRO at the suggestion of his SO, denied. File a formal appeal when the DRO is denied. All with not one exam from

VA having been performed. Now, we know why. Ultimately it's the Vets responsibility to make sure everything he/she

wants considered is in the file, don't rely on your SO to give you a call or send a letter to you to submit additional

evidence. DH's claim was SC in 4/08 based upon medrecs that were in the file (through mid 04)and the QTC exam from 2/08.

You can be assured they have it all now, as I made absolutely certain they had all they needed to make an informed and

accurate decision.

Any Veteran can have any SO rep them, but still, it's up to the Veteran to provide all of the information VA needs to make

a qualified determination of the claim. I truly believe (but can't go back in time) that had they had all of this current info

we would not have had to go in front of the board to prove his claim. BTW, we waited for well over 2 years for that to

happen.

I sincerely hope we won't need to go the CAVC route, but will if needed. All of this from 1 clerical mistake by 1 RO who

made a wrong decision and didn't know their left from their right, literally.

Thanks again for the insight.