Partial Grant Partial Remand

[broncovet]

I have received a BVA decision that is partly remanded, and partly awarded, for seperate issues.

My question is, do you think they will process the "award" part right away, or will I have to wait to get my retro until the remand is completed. The remand could take months or years to resolve, and since its a seperate issue, I am hoping they will pay me the "award" portion (retro).

Has anyone had a partial award partial remand, and did they pay you right away and then take care of the remanded issue or did you have to wait forever?

[deanbrt]

I think at some point, the more people you get involved, the better. Berta is right that a remand or full award is supposed to be expedited but in my case the RO was "bundling" my BVA award with my IU appeal and holding them both hostage at the RO. I had been copying my senator's office on all correspondence to the RO and also got the Office of Case Management involved as my claim/appeal was over 6 years old.

I have not written it before but, for over a year, every e mail/fax I cc'd my senator to the RO, I cc'd the lead investigative reporter for the largest newspaper in my state so the RO and the senator's office would see it. He had written a couple of front page reports in the past critical of the RO in my state.

I will never know how the perfect storm came together. I only know I received a call from a coach at my RO in July who said " I hear you have been in contact with Sen. ______ and VA Washington". . Within two weeks I was awarded IU and retro........

[broncovet]

Thanks, Carlie Here is what the Board decision says:

First, the background:

I contend they shredded my evidence for depression and tdiu in 2002, (yes, I have evidence to support my shredding allegations) and they have made the effective date, 2007. The first decision, in 2002 failed to adjuticate depression and TDIu and they adjuticated only hearing loss. I appealed. In 2004 it went to the Board and they granted sc for hearing loss. Also in 2004, the RO issued a decision awarding 0%. I appealed this decision also, with a timely filed NOD but the RO has never acknowledged the 2004 appeal..no soc, and the 2004 ro nod was not addreessed at all in the 2012 Board decision. However, in 2005, I was awarded partial (40%.. 30 for depression and 10 for tinnitus. plus pension, but only back to 2005 Altho the 2005 RO decision was not appealed, I contend the failure of the RO to address the 2004 NOD keeps the claim pending..all the way back to 2002. There was also a 2008 RO denial which I also appealed.

In Mar 09, I was awarded 100 percent effective in 2007, and I appealed. This was what the Board says:

For an increase in disabilitiy compensation, the effective date wil be the earliest date as of which is factually ascertainable that n increase in disability had occured if claim is received with one year from such date otherwise, the date of receipt of claim. 38 USCA 5110;38CFR 3.4000 (o)(2); se also Hazan v Gober, 10 Vet App 511 (1997); Servello v Derwinski, (1992)

In VAOPGCPREC 12-98 (Sept 1998), VA's GC noted that 38 CFR 3.400(o)(2) was added to permit payment of increased disability compensation retroactively to the date the evidence establishes the increase in the degree of disability had occurred. That section was intendded to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty. It was noted that this section was not intended to cover situations where disability worsened gradually and imperceptibly over an extended perion of time.

"Claim" is defined broadly to include a formal or informal communication in writing requiesting a determination of entitlement or evidenceing a belief in entitlement to a benefit. 38 CFR 3.1(p); Brannon v West, (1998) Servello v Derwinski (1992). Any communication or action, indicating an intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered and informal claim. Such an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 CFR 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v Derwinski (1992).

In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is entitled to an effective date earlier than 2007 for the assignment of a 100 percent disabilty evaluation for the Veterans service connected depression.

SC was granted for depression in 2005. A 30 percent rating was established, effective from 2004. The Veteran did not appeal the decision. As such the 2005 RO rating decision is final. 38 CFR 20.1103.

In 2007, the Veteran filed the instant claim for an increased rating for his sc depression. I comment here that this is not true. I applied earlier, but the RO shredded it, and the record does not show it. The 2008 RO decision continued the rating and in the 2009 RO rating decision the RO increased the rating until 2007, effective the date of increase. The record does not contain any earlier statement indicating an intent to file a claim. This is not true, and I have evidence to support it, that is, N and M evidence because the Ro shredded it.

Based on the foregoing, the Board finds than an informal claim for increased evaluation was not received by VA prior to the informal claim in 2007. While the date of claim has been established, the Board must next determine under 38 CFR 3.400(o)(2) the earliest date as of which it

is factually ascertainablethat a 100 percent disability evaluation was warranted during the one year prior to 2007. As perviously discussed, the effective date will be the earlies date as of which it is factually ascertainable that an increase had occurred if claim is received within one year from such date. Otherwise, it will be the date of receipt of claim 38 CFR 3.400(o)(2).Excellent. The purple heart says that the VA often overlooks 3.400(o)(2) and I am pleased the board saw this.

In this case, there is a VA treatment record in 2006 showing .....(the Vets condition got worse). Therefore an effective date of 2006 is warranted. I Have evidence to refute the Boards position that the record does not show I applied before 2007. However, the Board does not discuss my 2008 letter request for "special handling" due to shredding, nor did they discuss the RO failure to file SOC in 2004, keeping the claim pending.

[Berta]

“ I Have evidence to refute the Boards position that the record does not show I applied before 2007. However, the Board does not discuss my 2008 letter request for "special handling" due to shredding, nor did they discuss the RO failure to file SOC in 2004, keeping the claim pending. “

Did you send this info to the BVA yourself?

“In this case, there is a VA treatment record in 2006 showing .....(the Vets condition got worse). Therefore an effective date of 2006 is warranted. “

This happened to me on my AO IHD claim.

My position was that the EED was clearly established by medical records and also by a Strategic Health Team review from VA Central under FTCA case and by a 'Peer review done at the local Bath NY VA, that VA said never existed, (it was right at the bottom of my C file) as to the exact date the claimed disability incurred.

VA gave me as IHD EED, the date of a C & P exam my husband had for PTSD, not IHD.

This only involved a 2 month comp retro period and NVLSP could not further fight the EED as it did involve 1151 issues.

However, not one to buy anything I don't like to hear, I still think I can recover that date in my next claim. But I dont know how yet.

In your case an MFR might work.

Then again NVLSP gave me some rationale on the IHD EED date I got.(sort of)

as it seems that VA had to justify the EED with some sort of documented VA medical evidence ( meaning the VA PTSD C & P exam they used for the EED ) showing that

“That section was intendded to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty.

But my argument was if the PTSD C & P exam was used to justify the AO IHD EED,then why the hell didn't the VA formally diagnose and treat the veteran from that point on for the IHD- he might still be alive if they did. So I fully understand your position here too.But I also see how the VA has to justify everything with documentation from a doctor.

You stated this:

The first decision, in 2002 failed to adjuticate depression and TDIu and they adjuticated only hearing loss. I appealed. In 2004 it went to the Board and they granted sc for hearing loss.

Do you have a BVA link to that decision?

On the I-9 did you formally appeal the lack of adjudication on the TDIU and depression issues?

Sometimes this is an excellent reason to have a vet rep because they keep a POA file on you and copies of correspondence to and from the VARO.

DAV told me they destroy POA files after 7 years but my last rep org (State of NY) still maintains my POA file as far as I know.at their main office.

“Back to the effective date as "facts found", which I need to refute, I guess the clear answer is to submit more evidence showing another (earlier) docs opinion that the malady got worse 4 years before, and not in that docs office. “

I filed an MFR once and forget what it involved. Will they accept more medical evidence for a Motion to Reconsider? Maybe I am confused here. A MFR is filed against the BVA.Maybe I spoke to soon if I thought that was a good idea, but hopefully others will chime in here too with their opinions on that.

This is why SSDI awards and their dates can often support better EEDs as an SSA award is,in essense, an IMO.

Then again-you had a partial award and a partial remand.

The remand itself has opened a door for more evidence, such as medical evidence for a better EED, as I see this so maybe a Motion for Reconsideration filed with the BVA on their decision is inappropriate.

I am anxious to see what others think about this.

Lets not forget either---Shreddergate was not due to some fictitious paranoia that went wildly rampant through the electronic veterans communities... it was real. and supported by fact.

[deanbrt]

"This is why I think sometimes you want to send evidence directly to the Board, and not go through the RO gatekeeper where it tends to get lost."

I ALWAYS waived the right for the RO to review evidence for my appeal so that it went straight to BVA.

[deanbrt]

"The remand itself has opened a door for more evidence, such as medical evidence for a better EED, as I see this so maybe a Motion for Reconsideration filed with the BVA on their decision is inappropriate.

I am anxious to see what others think about this."

Agree but it would have been good to have submitted new evidence while it was still at BVA. I see the RO walking it around the block, like they did with me, and it eventually going back to BVA again. In my case , i was lucky enough to have Hoppy write a brilliant rebuttal at BVA the second time. It that rebuttal would have gone to the RO I am convinced they would have done their best to damage it before it went back to BVA.

Here is another case of caveat emptor (buyer beware). I had been using an attorney with a national reputation that did not spend 10 minutes on me a month and passed EVERYTHING off to a series of paralegals. I cannot even remember all of their names. After one final heated discussion, he offered to withdraw and I accepted ( I think he was surprised ). Two months later, in large part due to Hoppy's assistance, BVA awarded. a full grant. I think Hoppy may have spent several hours researching and writing. That attorney would never have done that kind of work for me and I wonder if I would have prevailed.

As many have written here, the vets that win are the ones that get involved.Certainly, there have been things I disagreed with on this board (and Yuku) but every time you sign on and read the postings you gain more knowledge. And knowledge is power........

[broncovet]

I was pleased to see Berta and deanbrt's insight on this.

Deanbrt..

Yes, and the fact I want the new evidence to be at the BVA level is why I am strongly considering Berta's advice of a MFR...probably with a waiver of RO consideration.

Berta. Yes. While I have resubmitted much evidence that I beleive to be shredded, there is still more..and some of the evidence I resubmitted was shredded again!

I did not quite make myself clear. The 2002 RO decision denied hearing loss. The 2004 Board decision reversed this denial and awarded a complete grant of benefit sought. I did not appeal the 2004 Board decision which was fully favorable. When the RO, allegedly "implemented" the Board decision, with a 0 percent evaluation, I realized something was amiss, and appealed the 2004 RO implementation of the Boards fully favorable decision. The RO never responded, ever, to my 2004 appeal, but actually shredded my 2004 NOD. Fortuanately, I got a copy of my c file at the right time, and there was the 2004 RO decison NOD, "stamped" by the RO. I contend the failure of the RO to file a SOC to my 2004 NOD "keeps the claim pending" as it was never resolved. The RO issued a decison in 2005 which granted partial benefits, and I did not appeal the 2005 decision which awarded 40% for depression, but only went back to 2005 effective date. I contend that my claim is still pending, because the 2005 RO decision, which awarded less than the maximum, did not resolve my earlier appeal. (Only an appeallate review can resolve this 2004 NOD..a RO decision awarding less than the maximum does not resolve the 2004 appeal.)

As far as a link to the 2004 Board decision, I am unable to redact private informtion, but it is likely moot anyway. It was fully favorable, but only addressed the issue of depression, so I did not appeal.