Can You Sue A Vso

[Mr cue]

can you sue vso. i did a cue of a 1994 rating form services claim. july 2009 bva say these claims are still pending in appeal status from 1994

now i go to the american legion that handle the claims for help they tell me they dont have poa. will not help..

so please tell me how they drop the ball and just let the va hold my appeal for yrs. than when i find out tell me they cant help. how could they not have poa if they started these appeals.

were would i start this sue i have all of the papers.

[scscrewed]

What state are you in? It seems you found out in 2009, so it may be difficult to file a claim of malpractice, because of when you found out about the injury. Now, I am not an attorney, and while I have filed many pro-se lawsuits in my periods of lucidity and won some, I cannot advise you or tell you what the laws in your state are. You need to find out what the statute of limitations for professional malpractice are in your state.

You need to find out if your within the statute of limitations. Now if, this is sensitive, if you have a mental disability, then maybe you can argue that the statute of limitations should be toiled.

[Chuck75]

To me this can go different ways.

You might be able to sue, but I'd think the chances of success are not great.

Filing such a suit is one thing. Getting the result you hope for is another.

The VA seems to be a major part of the problem, as the appeal seems to still be open.

(The VA may try to say that the veteran abandoned the appeal when the open status is brought to their attention, and then show that status.)

(Assuming that the VA may have asked for something, usually in very general terms, and the veteran did not follow through with a response.)

Remember that ultimately you are responsible for your claim, and a VSO in fact is there to "help".

Is there some sort of contract, written or implied, that obligated the VSO to do certain things?

The advertizing by various service organizations implies that they can do various things for a veteran.

i did the cue2009 and found out that vso and va left my appeal pending since 1994

Citation Nr: 0928705

Decision Date: 07/31/09 Archive Date: 08/04/09

DOCKET NO. 09-19 043 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in Buffalo,

New York

THE ISSUES

1. Whether a June 1994 rating decision granting service

connection for a muscle strain of the left neck, rated 10

percent under Diagnostic Code 5233, contains clear and

unmistakable error (CUE).

2. Whether a June 1994 rating decision denying service

connection for a left elbow disability contains CUE.

3. Entitlement to service connection for residuals of a left

elbow fracture with parasthesias.

4. Entitlement to an initial evaluation in excess of 10

percent for a muscle strain of the left neck.

WITNESS AT HEARING ON APPEAL

The Veteran (Appellant)

ATTORNEY FOR THE BOARD

W. H. Donnelly, Counsel

INTRODUCTION

Please note this appeal has been advanced on the Board's

docket pursuant to 38 C.F.R. § 20.900© (2008). 38 U.S.C.A.

§ 7107(a)(2) (West 2002).

The Veteran served on active duty with the United States Army

from October 1, 1993 to December 13, 1993. He received an

uncharacterized discharge.

This matter comes before the Board of Veterans' Appeals

(Board) on appeal from June 1994 and September 2008 rating

decisions by the Buffalo, New York, Regional Office (RO) of

the United States Department of Veterans Affairs (VA). The

June 1994 decision denied service connection for a left elbow

and hand disability, and granted service connection for a

muscle strain of the left neck, rated 10 percent disabling.

The September 2008 decision found no CUE in the June 1994

rating decision.

The Veteran testified at a May 2008 pre-decisional hearing

and at a February 2009 hearing before a Decision Review

Officer (DRO) at the RO in connection with his CUE claims.

He declined a Board hearing. Transcripts of the local

hearings are associated with the claims file.

The issues of service connection for a left elbow disability

and evaluation of the neck disability are addressed in the

REMAND portion of the decision below and are REMANDED to the

RO via the Appeals Management Center (AMC) in Washington, DC.

FINDINGS OF FACT

1. Service connection for a left elbow disability was denied

in a June 1994 decision; service connection for a neck

disability was granted in the same decision and rated 10

percent disabling.

2. The Veteran filed a timely Notice of Disagreement (NOD)

with the June 1994 decision in October 1994. A Statement of

the Case (SOC) was issued in December 1994.

3. In January 1995, within one year of the June 1994 denial,

the Veteran, through his representative, filed correspondence

referencing both issues and expressing an intent to pursue

his appeals; this correspondence must be accepted as a

substantive appeal sufficient to perfect the appeal to the

Board.

4. The October 2007 claim of CUE in the June 1994 decision

addresses issues currently pending on appeal.

CONCLUSIONS OF LAW

1. The Veteran's appeal as to the issue of CUE in the denial

of service connection for a left elbow disability is

dismissed as no justiciable case or controversy is before the

Board at this time. 38 U.S.C.A. §§ 5109A, 7104, 7105 (West

2002); 38 C.F.R. §§ 3.105, 19.4, 20.101, 20.200 (2008).

2. The Veteran's appeal as to the issue of CUE in the

assignment of an initial 10 percent rating for a left neck

muscle strain is dismissed as no justiciable case or

controversy is before the Board at this time. 38 U.S.C.A.

§§ 5109A, 7104, 7105 (West 2002); 38 C.F.R. §§ 3.105, 19.4,

20.101, 20.200 (2008).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As provided for by the Veterans Claims Assistance Act of 2000

(VCAA), the United States Department of Veterans Affairs (VA)

has a duty to notify and assist claimants in substantiating a

claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,

5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and

3.326(a).

In this case, VCAA notice ands assistance is not required

because the issue presented involves a claim for review of a

prior final regional office decision on the basis of clear

and unmistakable error (CUE). The VCAA is not applicable to

CUE matters. See Livesay v. Principi, 15 Vet. App. 165, 179

(2001) (en banc); Parker v. Principi, 15 Vet. App. 407

(2002).

In June 1994, the RO issued a decision denying service

connection for a left elbow disability and granting service

connection for a neck disability, initially rated 10 percent

disabling. The Veteran filed an NOD with these decisions in

October 1994, and the RO issued an SOC in December 1994. In

January 1995, within the one year appeals period from the

denial of the claims, the Veteran, through his

representative, filed a statement which must be accepted as a

substantive appeal on those issues.

The Veteran requested a personal hearing, and referenced both

the service connection and evaluation issues. He also noted

that both were currently on appeal, and that an SOC had been

issued. His filing manifests an intent to continue his

appeals. Resolving all doubt in favor of the Veteran, this

filing is the equivalent of a VA Form 9, Appeal to Board of

Veterans' Appeals, and perfects the appeals on both issues.

38 C.F.R. § 20.202. The RO failed to certify the issues to

the Board, and the Board has never taken any action on either

issue. The appeals remain open.

Regulations indicate that only "determinations which are

final and binding" are subject to revision based on CUE.

38 C.F.R. § 3.105(a). In this case, no final and binding

determination exists as to service connection for the left

elbow or the evaluation assigned for the neck disability.

The perfected appeal prevented the June 1994 decision from

becoming final.

Therefore, there can be no valid claim of CUE in that

decision at this time; such an allegation is premature.

There is no case or controversy pending before the Board as

contemplated by 38 U.S.C.A. §§ 7104, 7105 and 38 C.F.R.

§ 19.4. In the absence of any justiciable question, the

claim regarding CUE must be dismissed.

ORDER

The question of whether a June 1994 rating decision granting

service connection for a muscle strain of the left neck,

rated 10 percent under Diagnostic Code 5233, contains CUE is

dismissed.

The question of whether a June 1994 rating decision denying

service connection for a left elbow disability contains CUE

is dismissed.

REMAND

As was discussed above, the Veteran has timely perfected

appeals with regard to the issues of service connection for a

left elbow disability and initial evaluation of a left neck

muscle strain.

During the pendency of these appeals, the VCAA was enacted.

VA has a duty to notify and assist claimants in

substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,

5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a),

3.159 and 3.326(a). Adequate notice and assistance has not

been afforded the Veteran under the VCAA with regard to

either claim, and hence remand is required.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's

docket pursuant to 38 C.F.R. § 20.900© (2008). Expedited

handling is requested.)

1. Provide the Veteran with the notice

required under 38 U.S.C.A. § 5103(a) and

38 C.F.R. § 3.159(b), as well as Court

precedent, to include Dingess v.

Nicholson,

19 Vet. App. 473 (2006) (regarding notice

of assignment of effective dates and

disability evaluations).

2. The AMC/RO should specifically request

private medical records regarding

treatment of the left elbow and arm

disability from the time of injury to

service, or proper releases to allow VA to

obtain such on the Veteran's behalf. The

RO should review the claims file to ensure

that all the foregoing requested

development is completed, and arrange for

any additional development indicated, to

include provision of VA examinations.

3. The RO should then readjudicate the

claims on appeal. If any benefit sought

remains denied, the RO should issue an

appropriate SSOC and provide the Veteran

and his representative the requisite time

period to respond. The case should then be

returned to the Board for further appellate

review, if otherwise in order. No action

is required of the appellant unless he is

notified.

The appellant has the right to submit additional evidence and

argument on the matters 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 of

Veterans' Appeals or by the United States Court of Appeals

for Veterans Claims for additional development or other

appropriate action must be handled in an expeditious manner.

See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).

______________________________________________

J. Parker

Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

had the american legion 1994 took with me to tell them claim they started were left pending told they dont have poa

how is that. than who does.during all this i have lose two houses.

crazy thing is during this pending appeal i put in paper 2001 with vfw va treated as an increase rating claim granted 60% for same neck issue and iu on appeal

by the dro.

how would the vfw not no that these claims were left pending from 1994 when they took poa. vfw told me they dont have poa claim from 1994 will not help

so now no one will help and i had two different vso during all this.

i am going to state court houses today did not no were to start. were do you do a complaint at

more to story to much to post

[scscrewed]

also if you have a mental health illness and one that is service connected the VSO has a greater responsibility. So, that may take some of that responsibility off of you as the claimant.

And, I agree with Chuck it will be difficult winning the claim unless the statement of claim provides gross negligence on the part of the POA/VSO.

[Pete53]

Until you realize that your VSO and the VA are oftentimes working together and not always for your best interests. The VA gives them offices and trains them a little and they share the same break room at many VARO;s