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Help With Understanding Remanding From Appeals Back To Ro

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Mil T

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Hello,

I am a Vet advocate in my small town. I help as many as I can with their claims and following them along the process. I am not associated with any organization. We don't have any organized VSO's in our town so I try to take up the slack where I can.

I have an issue that I need to get some understanding of.

One of the Vets I'm helping has had claims in for several years and under appeal. When he came to me his claims were very convaluted and all had been denied because no one had helped him with the processes. He even had an attorney that advised him to file for agent orange but the vet is a blue water and was never qualified for agent orange. I was able to get most of it straightned out by dropping the agent orange presumptive illness claims that were never going to be awarded.

We turned in new evidence for the rest of the claims of PTSD, Hearing and tinnitus. Also unemployability because he has parkinsons and he is in a wheel chair due to his SC Knees that he was discharged from service for with a 0% award and asked to be reopened based on new evidence that I helped him acquire. We also asked to have the claims in appeals remanded back to the RO based on the new evidence. This was in October of 2011. We've been following this on E-benfits and never saw any changes. We visit the RO in Phoenix often and were told the claims were back in RO. Yesterday we visited again and this time the Service Officer finally went and got his file after seeing on his computor that all of his claims were still in appeal. When we inspected the file, the 4138 where we requested the remand of claims was there but there was never any action taken. The SO noted this and said he would take it up to appeals and make them aware of the 4138 request.

Today the Veteran was called by the appeals dept. and was told that if they remand the claims that his initiation date of all the claims would revert to todays date and all of his back pay would be lost.

Can someone clarify for me why that would happen? I've always been of the understanding per the VA website and on the e-benefits website that the appeals board should always automatically remand claims with new evidence back to the RO in the first place. I don't understand why he would loose his origional date for the filing of the claim. Some of the dates go back to 2007.

Any help would be appreciated.

We Were Young

We Were Soldiers

We Are Brothers Forever

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Quick question,

I know you posted:

"He even had an attorney that advised him to file for agent orange but the vet is a blue water and was never qualified for agent orange. I was able to get most of it straightned out by dropping the agent orange presumptive illness claims that were never going to be awarded."

Many blue water vets are now eligible for SC under presumptive conditions.

My concern in this relates fairly strictly to his Parkinson's Disease.

By chance - just to be absolutely sure of this, has anyone checked out the alphabetical list and exposure locations and time frames - of 214 ships that blue water vets served on -

http://www.publichea...iplist/list.asp

Blue Water Veterans must have actually stepped foot on the land of Vietnam or served on its inland waterways anytime between January 9, 1962 and May 7, 1975 to be presumed to have been exposed to herbicides when claiming service-connection for

diseases related to Agent Orange exposure.

Some offshore vessels docked to the shore of Vietnam, operated in Vietnam's close coastal waters and sent smaller vessels ashore, or conducted operations on the inland waterways of Vietnam.

Evidence confirmed through military records must show that the Veteran was aboard one of these ships.

Blue Water Veterans who did not set foot in Vietnam or serve aboard ships that operated on the inland waterways of Vietnam anytime between January 9, 1962 and May 7, 1975 must show on a factual basis that they were exposed to herbicides during military service in order to receive disability compensation for diseases related to Agent Orange exposure. These claims are decided on a case by case basis.

Carlie passed away in November 2015 she is missed.

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Yes, we checked the list. He was on the USS Enterprise, a nuclear aircraft carrier and he never went ashore in Vietnam. Because of his diabetes II and the parkinson's the attorney just figured they should file it for AO not thinking that you actually had to prove you were exposed. The claim for AO was also made before the current list of ships were actually approved for AO. It was a crime that he went through all of the wasted time and frustration of 2 denials and a DRO hearing that was initiated by this attorney. He was on the flight deck as an aircraft launcher. He was the person closest to the plane to give the ok to launch the plane. He was exposed to some of the loudest noise exposure DB's in the military service with the F4's launching at full throttle and noise levels exceeding 150 DB's. No one advised him to turn this information in to support his claim and he was denied hearing loss and tinnitus. The parkinson's symptoms are there but the doctors have not said that it is definitly Parkinsons. The tremors don't resemble parkinson's. He is in the Wheel Chair because of his severe artheritis and the failure of his knees. His knees are SC yet he was never advised to file for an increase in award. He has an appointment for knee replacement evaluation and will probably be approved which means we will be able to file a 100% temporary unemployability while in healing process. The attorney also had put him in for IU but he did not meet any of the schedular requirments even though his doctors have confirmed that he is not able to have gainful employement and have said it on his medical progress notes. It is like the cart before the horse kind of thing. He needs to be awarded the necessary disabilities to meet the schedular requirments in order to have IU.

I just need to understand how remanding claims from appeals will make all of his retro dates go away and they start all over? Doesn't make any since to me.

I also will be in the same boat if that is true. I am 80% total with 70% ptsd and 20 for hearing and 10 for tinnitus. I was refused IU when I was awarded the increase for PTSD, so I went to Voc Rehab per the VA's recomendation in the award letter. I was told that I cannot achieve gainful employment due to my SC PTSD. So I used that letter form VR&E to remand my request of a hearing by DRO and appeal back to the RO based on the sufficient and material new evidence of the letter from VR&E. It was brought back to the RO level and is in the pending decision stage per my E-Benefits page. So now I'm thinking that instead of being a retro of April 2009 when I had origionally filled for the IU that it will be Aug 2010 when I asked to have it remanded for new evidence if this information is true about giving up the back dates for the origional claim due to remanding the claim from appeal to RO.

We Were Young

We Were Soldiers

We Are Brothers Forever

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I have an issue that I need to get some understanding of.

One of the Vets I'm helping has had claims in for several years and under appeal.

When he came to me his claims were very convaluted and all had been denied because no one had helped him with the processes.

He even had an attorney that advised him to file for agent orange but the vet is a blue water and was never qualified for agent orange.

I was able to get most of it straightned out by dropping the agent orange presumptive illness claims that were never going to be awarded.

Did he ever actually contract with this attorney and get any VBA adjudication from their services ?

We turned in new evidence for the rest of the claims of PTSD, Hearing and tinnitus.

Also unemployability because he has parkinsons

and he is in a wheel chair due to his SC Knees that he was discharged from service for with a 0% award

and asked to be reopened based on new evidence that I helped him acquire.

Why were the claims for PTSD, Hearing and Tinnitus denied ?

So, is the claim for IU a new issue or has that also been denied in a prior decision?

By chance, does he fall under the income limitations for pension, if yes has a claim for pension

benefits ever been submitted or has VBA ever inferred the issue, if yes was there ever a decision adjudicated

for pension benefits ?

OK, he was discharged from service and was granted SC for "knees" at zero percent.

Had a request for increase in his "knees" condition been submitted, a rating decision denied the

request for increase in "knees" condition.

This denial became final and currently a request to reopen (based on new evidence) has been submitted

on the issue of increase in evaluation for the SC'd "knees"

We also asked to have the claims in appeals remanded back to the RO based on the new evidence.

This was in October of 2011.

Oh my goodness, I do not understand at all, asking the BVA "to have the claims in appeals remanded back to the RO

based on the new evidence".

Are you aware that you had the opportunity to submit the "new evidence" directly to the BVA along with a

Waiver Of VARO consideration?

This would have allowed the BVA to go ahead a make some decisions on the issue/s -

or remand for some other reason that has not yet even been considered, (but may end up waiting for

an additional remand down the road).

We've been following this on E-benfits and never saw any changes.

Ebenefits and the 800 # are infamous for providing inaccurate information/answers.

We visit the RO in Phoenix often and were told the claims were back in RO.

Yesterday we visited again and this time the Service Officer finally went and got his file after seeing on his computor

that all of his claims were still in appeal.

When we inspected the file, the 4138 where we requested the remand of claims was there

but there was never any action taken.

The SO noted this and said he would take it up to appeals and make them aware of the 4138 request.

From what you've posted so far I am guessing that the 21-4138 was the request to (remand),send the

issues under appeal back to the VARO, and the submission of the "new evidence".

Is this correct ?

If not correct, then on the 21-4138 - what exactly was requested ?

Had this vets claim file ever actually been physically transferred to the BVA's jurisdiction?

What action do you feel was to be taken in response to the 21-4138 ?

Today the Veteran was called by the appeals dept. and was told that if they remand the claims

that his initiation date of all the claims would revert to todays date and all of his back pay would be lost.

I would certainly ask what this statement is based on.

Can someone clarify for me why that would happen?

I've always been of the understanding per the VA website and on the e-benefits website that

the appeals board should always automatically remand claims with new evidence back to the RO in the first place.

Not at all.

This whole step can easily be negated by submitting the signed Waiver Of VARO Consideration.

This is FOR SURE the way I personally would have handled it, but maybe that's just me.

I don't understand why he would loose his origional date for the filing of the claim.

Some of the dates go back to 2007.

On any issues that have been under continuous prosecution and have had no failure on the part of

the claimant, to file the NOD's in a timely manner, I do not feel he would loose his earlier effective date/s.

The the 38 CFR and M21-1MR instruction is here:

http://www.benefits.va.gov/warms/M21_1MR1.asp

Scroll down to:

Chapter 5 - Appeals

Click on :

Section G

- Board of Veterans Appeals (BVA) Decisions and Remands

33. Reviewing and Processing Decisions

h. Determining effective date for a grant of benefits -

See 38 CFR 3.400

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=b35d85c535d0a340db47b3d2f7278e9a&rgn=div8&view=text&node=38:1.0.1.1.4.2.69.173&idno=38

Carlie passed away in November 2015 she is missed.

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Waiver Of RO Consideration :

VA_Waiver_of_RO_Consideration (5).pdf

Here's more info on providing the BVA with the Waiver, which provides the BVA

with the authority to go ahead and rule with only their consideration of the "new" evidence,

thereby being able to bypass this time waster (in the majority of Appeals), at the RO level.

"In June 2011, the Veteran offered testimony on the claim for a TDIU during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. In connection with the hearing, the Veteran submitted additional evidence, along with a waiver of RO consideration of the evidence. See 38 C.F.R. §§ 20.800, 20.1304 (2010).

During the June 2011 hearing, the Veteran requested, and the undersigned granted, a 30-day abeyance period for submission of additional evidence in support of the claim for a TDIU. In July 2011, the Veteran's representative submitted additional evidence in support of the claim. This evidence was also accompanied by a waiver of RO consideration. See 38 C.F.R. § 20.1304 (2010)."

http://www.va.gov/ve...es4/1137318.txt

Carlie passed away in November 2015 she is missed.

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If his "knees" are SC'd and he has TRK - he can get temporary 100%

under Convalescence (38CFR 4.30) for up to 13 months.

After that he should be scheduled for a re-examinination and I believe in most cases, it will drop to 30%.

Carlie passed away in November 2015 she is missed.

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I have an issue that I need to get some understanding of.

One of the Vets I'm helping has had claims in for several years and under appeal.

When he came to me his claims were very convaluted and all had been denied because no one had helped him with the processes.

He even had an attorney that advised him to file for agent orange but the vet is a blue water and was never qualified for agent orange.

I was able to get most of it straightned out by dropping the agent orange presumptive illness claims that were never going to be awarded.

Did he ever actually contract with this attorney and get any VBA adjudication from their services ? Yes he did. When I heard what was taking place I recommended that he give up on the attorney as he was just not doing anything for him as you will see when I answer your other questions. He is in Arizona now which is why I am helping but he started in St. Louis which is where the attorney was at.

We turned in new evidence for the rest of the claims of PTSD, Hearing and tinnitus.

Also unemployability because he has parkinsons

and he is in a wheel chair due to his SC Knees that he was discharged from service for with a 0% award

and asked to be reopened based on new evidence that I helped him acquire.

Why were the claims for PTSD, Hearing and Tinnitus denied ? basically because there was never any evidence turned in. The vet was never advised by the attorney that he needed to or to go to the VA or Veteran Center to start some counceling.

So, is the claim for IU a new issue or has that also been denied in a prior decision? Denied and then take to DRO by the attorney which was also turned down because the Vet didn't have any schedular qualifications other than his knees that were 0%. The attorney kept argueing the AO arguement.

By chance, does he fall under the income limitations for pension, if yes has a claim for pension

benefits ever been submitted or has VBA ever inferred the issue, if yes was there ever a decision adjudicated

for pension benefits ? I looked at that as soon as I took over his case. He made to much money to qualify. All of his medical is being handled by VA with no co-pays. One of his doctors agreed that he was catastrophic and he was moved to priority 3.

OK, he was discharged from service and was granted SC for "knees" at zero percent.

Had a request for increase in his "knees" condition been submitted, a rating decision denied the

request for increase in "knees" condition. There was never an increase requested by the attorney or his first VSO. They kept going after the AO and presumptives. It wasn't until he came to me that I advised him and he accepted to drop the AO as he did not qualify and to go after increase in Knees, PTSD and the Hearing and tinnitus. All issues that he does qualify for and we have been able to turn in new evidence.

This denial became final and currently a request to reopen (based on new evidence) has been submitted

on the issue of increase in evaluation for the SC'd "knees" yes.

We also asked to have the claims in appeals remanded back to the RO based on the new evidence.

This was in October of 2011.

Oh my goodness, I do not understand at all, asking the BVA "to have the claims in appeals remanded back to the RO

based on the new evidence".

Are you aware that you had the opportunity to submit the "new evidence" directly to the BVA along with a

Waiver Of VARO consideration? I was not aware of that at the time. I was kind of going off of what the VA claims website and E-Benefits was saying that when new evidence is submitted that the BVA automatically sends the claim back to RO to let them have another look at it with the new evidence. When we would go to the VARO and talk to the Veteran service Rep he could not tell us where the claims were at. That was one of the reasons we asked for the claims to be remanded to the RO again because at least there we could follow the claim. The VSR also advised us to do that. I was not sure if it should have been that way but the VSR we have been going to is one of the supervisors and has been there a long time. He didn't understand why the BVA had not sent it back to RO either with the new evidence. This would have allowed the BVA to go ahead a make some decisions on the issue/s -

or remand for some other reason that has not yet even been considered, (but may end up waiting for

an additional remand down the road). I agree. One other problem was that the NEHMER cases where being done at that time and all the claims and appeals people in Phoenix VARO were working on those and nothing with regular claims and or appeals was being done. They finally got back into regualr claims in Nov 2011 sometime.

We've been following this on E-benfits and never saw any changes.

Ebenefits and the 800 # are infamous for providing inaccurate information/answers. I agree. The veteran is always looking at it and not seeing anything happening. Hince one of the reasons we go down to the RO when one of us or both of us go down for other reasons. We are approx 2 hours away and the RO is located close to the Phoenix Med Cntr so it isn't out of the way. I usually take others with me down to check their claims or go to doctor appointments. We try to kill seveal birds with one stone so to speak.

We visit the RO in Phoenix often and were told the claims were back in RO.

Yesterday we visited again and this time the Service Officer finally went and got his file after seeing on his computor

that all of his claims were still in appeal.

When we inspected the file, the 4138 where we requested the remand of claims was there

but there was never any action taken.

The SO noted this and said he would take it up to appeals and make them aware of the 4138 request.

From what you've posted so far I am guessing that the 21-4138 was the request to (remand),send the

issues under appeal back to the VARO, and the submission of the "new evidence".

Is this correct ? Correct

If not correct, then on the 21-4138 - what exactly was requested ?

Had this vets claim file ever actually been physically transferred to the BVA's jurisdiction? When you say BVA, are you talking the appeals dept at the Phoenix RO or to Washington? It was transferred to Phoenix and since the claims are still in appeals per our visit the other day when we learned that if they were remanded as we had requested last year, that his retro date would be lost and it would start as of the day they are transfered or remanded back to RO. The appeals dept. is still holding them at this time until we get this straightened out regarding the retro dates.

What action do you feel was to be taken in response to the 21-4138 ? That per the new sufficient and material evidence that the claims for PTSD, Hearing and Tinnitus should have been sent back to RO for their review and decision.

Today the Veteran was called by the appeals dept. and was told that if they remand the claims

that his initiation date of all the claims would revert to todays date and all of his back pay would be lost.

I would certainly ask what this statement is based on. Unfortunatly the veteran did not get the phone # or name of the person that called, so I will have to make a trip down, since we have an 0845 form allowing me to represent him, and try and get this sorted out. It brings up the question as to what regulation are they referring to?

Can someone clarify for me why that would happen?

I've always been of the understanding per the VA website and on the e-benefits website that

the appeals board should always automatically remand claims with new evidence back to the RO in the first place.

Not at all.

This whole step can easily be negated by submitting the signed Waiver Of VARO Consideration.

This is FOR SURE the way I personally would have handled it, but maybe that's just me. I guess I was naive to think that what it actually says on the website and also in the regulation is what would happen. I did finally become aware of the waiver but still thought that we didn't want to have it continue in appeals because we could not get a straight answer as to where the claims where at and also that we really thought with the new evidence that it would or should go back to the RO for review.

I don't understand why he would loose his origional date for the filing of the claim.

Some of the dates go back to 2007.

On any issues that have been under continuous prosecution and have had no failure on the part of

the claimant, to file the NOD's in a timely manner, I do not feel he would loose his earlier effective date/s. My thoughts also. Hince the reason it caught me by total surprise what the VA said.

The the 38 CFR and M21-1MR instruction is here:

http://www.benefits....ms/M21_1MR1.asp I will review. Thanks

Scroll down to:

Chapter 5 - Appeals

Click on :

Section G

- Board of Veterans Appeals (BVA) Decisions and Remands

33. Reviewing and Processing Decisions

h. Determining effective date for a grant of benefits -

See 38 CFR 3.400

http://ecfr.gpoacces....69.173&idno=38

We Were Young

We Were Soldiers

We Are Brothers Forever

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