Interpreting Varo Silence As A Denial

[vaf]

Just throwing this out there for opinions, if anyone is so inclined. Can a VARO's non-response (since February 2006) be interpreted as a denial? Can one treat silence as though it were a denial, and then send a formal written request for the denial and an SOC? We're trying this to force a decision, one way or the other, so we've done this. I finally sent a "last-attempt" certified letter at the beginning of July, giving the VARO until 8/15/06 to issue its denial and an SOC, otherwise, I would seek a Writ of Mandamus.

This goes back to my husband being one of the few veterans whose rating is 90% per the VA's use of unapproved, uncodified software, vs. 95% = 100% using the actual combined ratings table in 38 CFR, Part 4, subsection 4.25. We know they're using software because they finally stated so to a U.S. Senator we had contacted for assistance, but they never admitted that to us. We started this journey this past February, writing several letters explaining what we thought was an error, and also did so through IRIS. The BVA awarded my husband an additional 10% on a claim in an October 2005 decision, which put him at 95% (=100%) per the Table.

The VARO did respond via IRIS that my husband is at 90% - period. They did not address the software issue at all, just made a perfunctory statement. They have not sent a formal denial or SOC, or replied in writing to our numerous inquiries, even though we've asked for an SOC.

An attorney is handling my husband's case that is pending before the Court. Both the attorney and a colleague matched all claims award letters in the C-file (still in D.C.) to the Table, and arrived at the same conclusions we did here - 95% (=100%). He said he knew of no changes to the CFR that would allow use of any other means of computing overall disability ratings than the actual Table. I've looked through the CFR myself for proposed changes to allow the use of software, and have not found anything that approved this change. He suggested the writ if the VA continues to ignore us, which I fully expect them to do.

Has anyone tried something similar in the absence of a written VA decision or SOC?

[Testvet]

Vicki just the fact that have have not responded since a Feb 2006 corrspondence other than to acknolwedge receiving it and then sending the "we are working on it, don't call us we'll call you letter" does not mean they have denied it, it just means they are sitting on it, the VA does not have a time requirement to respond to veterans claims or letters, we are the only one with time limits in this process, not the VA gods, whenever they get "a roun to it" is good enough for them, just because you want a response witin six months or a year does not mean you are going to get one, it might be a year and a half or two years before they "deal with it" sorry, you can try and force the issue, but because the VA has not finished "processing it" the court will probably deny the writ. JMHO

[vaf]

Yes, I understand your point.

The VARO also told the senator that my husband is at 90%, that the software put him there after all ratings were considered (including the BVA's additional award last October). So, we're thinking they've established their position on the subject, they're just refusing to structure the decision in a formal denial and SOC, and give us the reasons and bases for the decision, as required. It doesn't take a lot of imagination to figure out why, they're treading on some pretty shaky ground. This might even be precedent-setting...

We've never really thought giving the VARO a deadline would succeed, I mean, who the heck are we to dictate to them? However nicely we put it, the deadline date establishes our intentions.

That being the case, does the filing of a writ give the VARO an excuse to stop (supposedly) processing the claim (even though they've basically stated to the senator that nothing more is being done on the claim)?

This involves 100% retro back to September 2003, plus full concurrent receipt, which is why we're pressing the issue, and it appears they're avoiding it completely.

We feel like the filling in a you-know-what sandwich...

Thanks.

[vaf]

Testvet, just looking over your response again. The trouble with the "we are working on it, don't call us we'll call you" letter is that it doesn't refer to specific claims. We've never received a claims acknowledgement letter, or VCAA letter, regarding the rating software issue.

My husband has other pending claims at the VARO level, and also at the Court level, that are unrelated to the rating software issue. So, when we receive those canned letters from the VARO, we don't think (but can't prove) they refer to the rating software issue.

It's never taken this long to get a denial or SOC from the VARO, which is why I don't think we're getting one.

[Testvet]

I don't know what VAO you are using but Columbia has kept me waiting 18 months before for denials so they are all different, then the fact that you have so many issue's going on at different levels seems to make things even more complicated for the VARO's, they aren't good at handling mutliple level claims and issue's they seem to do best by just ignoring the stuff they want to, is my experience with them, it took them from Dec 2002 until Oct 2005 to even acknowledge I am one of the 7120 men used in the chemical weapons and rug experiemnts and as soon as they could they granted my PTSD claim and thus proclaimed now that I was 100% P&T all other issues were closed. Due to some supposed letter I had signed in Dec 7 2005, trouble is I never signed a letter in Dec 2005 and I never agreed to drop all other issues, the agreement has always been PTSD and heart issues approved and I would agree to drop the hemmeroids and other BS claims that have no effect on my life expectancy.

The games still continue, they denied the heart issues again on 28 July 06.

[Berta]

Has your husband made formal application for TDIU at the 100% rate?

If he gets SSA disability for his SC disabilities, this is good evidence for 100% rate (TDIU).

If his SC meds affect his ability to work and/or if he has ever been turned down by Voc Rehab- this too is evidence of unemployability.

I gave VARO a deadline last year and they moved on it- -

however that was last year- they are still stalling on my claim-

The CAVC will deny a Mandamus Writ in your case-as you have not exhausted all administratives avenues yet to resolve this claim.

I will attach the TDIU form.

It seems to me that even though the VA should consider TDIU potential regarding many claims-they dont -and only the TDIU form from the vet triggers their attention to 100% TDIU.

TDIU_form.pdf

[vaf]

I'm sorry, I should have mentioned I meant 100% schedular. He's working, and although it's an increasing struggle due to conditions he's got disability ratings for, he's not ready to go the TDIU route. When he decides he's had too much, we'll certainly file for TDIU and SSA disability.

That's the catch, we can't CUE this because we haven't received a denial, and we can't exhaust our administrative options because we haven't received a denial or SOC from the VARO. I thought I found Court cases where the veteran filed a writ for a claim's lack of attention from the VARO, and then the writ was denied because the VARO suddenly took action on the claim after it was notified a writ was being requested. Therefore, the writ wasn't needed.

It's a nice Catch-22, and it involves a situation for which I can't find a precedent at the Board or Court, unless I've overlooking something.

I guess I'm asking how long is long enough to wait for an SOC from the VARO until a veteran can reasonably assume they're not getting one?