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?

[Vike17]

If you read the two cases, they are talking about issues a veteran never actaully claimed called an "inferred" or "implied" claim. Further, in one case the veteran, I think, abandoned the claim and the Court had to other choice for its decision.

Vike 17

[vaf]

I can understand your concern about VA math, it's interesting to say the least. Is this an issue of gaining a 100% pension or a test of wills with the VA? It may be much easier to get the VA to first award a TDUI claim at 100%, then continue to work on getting the 100% rating. For TDUI you typically need at least one of the ratings to be 50% and a coupla other s at 30 & 20% showing a total body issue as to why the person cannot work/gain employment.

Well, I'm guessing every one of us here more often than not is in a test of wills with the VA on an ongoing basis, that's nothing new. I don't even think of it that way, anymore. We just automatically do what we have to do and move on, and we don't give up.

However, moreso than anything else, this is an issue of forcing the VA to comply with 38 CFR, Part 4, Subsection 4.25 (The Combined Ratings Table). There is a procedure involved with changing provisions of the Code of Federal Regulations. The VA didn't follow it. The Table is the only codified standard of measurement for determining overall disability ratings.