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Letter To Regional Office Regarding Missing Retro Payment

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Sergeant G

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Hi,

I was just hoping to get some feedback on a letter I am planning to submit to the Boston Regional Office on Tuesday.

Here is some background information: The BVA awarded a partial grant of benefits last November and I am still waiting for the retro. On January 15, 2013, I went to the regional office for a status check and was told that my file was on the VSCM's desk awaiting his signature. (I am expecting over $25K in retro.) So he has had my file since at least this date and the delay continues. As I explain in my letter, I should have had the money by December 12, 2012.

Anyway, here is the body of the letter:



"The Board of Veterans Appeals (BVA) awarded a partial grant of benefits to me in a decision issued on November 16, 2012. My individual unemployability effective date was changed from July 16, 2009 to December 11, 2007. Accordingly, I am entitled to a retroactive payment of benefits. It has been almost three months and I am still waiting for the funds to be deposited into my bank account.


In its decision, the BVA also remanded a matter to this Regional Office. As you know, matters remanded by the BVA must be handled in an “expeditious” manner as required by law. While this term is not defined, the VA Adjudications Manual M21-1MR (Manual) provides that pon receipt of a remanded appeal…the DRO, VSCM, or his/her designee ensures that review and development of the remand are initiated within 15 days from the date of receipt.” It further provides that it is “important” that “[t]he VSC should implement BVA’s grant or partial grant of benefits in any favorable decision before initiating development of the remanded appeal.” Merriam-Webster’s Dictionary defines the word “should” as the past tense of “shall.” When used in the context of laws, regulations, or directives, the word expresses an action that is mandatory. A copy of the relevant page from the Manual is attached for your review. In addition, VBA Fast Letter 10-02, which I previously submitted, requires partial grants to be implemented “immediately.” I find it compelling that the author of the letter, Bradley G. Mayes, happens to be the Director of the Boston Regional Office.


The Regional Office received my file from the BVA on or before November 27, 2012; therefore, development of the remanded matter should have been initiated by no later than 15 days, which was December 12, 2012, and the retroactive funds should have been disbursed prior to then. According to the eBenefits website, my appeal has been in the “authorization review” phase since December 6, 2012. As you know, BVA decisions are final and binding on the Regional Office. As such, I am puzzled as to what is left to authorize and review and why there has been a significant delay in implementing the BVA’s order. I received retroactive payments on multiple occasions in the past and each payment was deposited into my bank account within a week of my receipt of the rating decision. It is ironic that now it is specifically required that the grant be processed expeditiously and yet I continue to wait.


Considering the foregoing and my Statement in Support of Claim dated December 6, 2012 (including the attachment of the above-referenced fast letter), I respectfully request that the retroactive payment be deposited into my bank account of record by no later than February 19, 2013. Thank you for your assistance."



Thank you to everyone for the feedback.

P.S. Should this letter not have any impact, I may contact the BVA Ombudsman's Office for assistance. Has anyone dealt with this office and what were the results?

Sergeant G

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Thanks to everyone for the feedback. I actually did submit the fast letter that Carlie posted to the RO on December 6. The BVA also denied a separate issue in the decision, so the fast letter describes my exact situation. My VSO told me that this VSCM is notorious for taking his sweet time when it comes to authorizing retro. Apparently he thinks he’s above the law and VA regulations. In response to the BVA denial, I filed my Notice of Appeal with the CAVC last week. I’m worried that I won’t get my retro before the appeal is docketed and my file is transferred to the Office of General Counsel. If that happens and the RO does not have my file anymore, who bears the responsibility for paying me?



Berta, how did you get in touch directly with the OGC? Did it take long to get your retro after the OGC’s order to the RO?


By the way, I recently found a great case regarding veterans’ rights and remands.


In Stegall v. West, 11 Vet.App. 268, 271 (1998), the CAVC held that, “A remand by [the CAVC] or the Board [of Veterans Appeals] confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders. We hold further that a remand by this Court or the Board imposes upon the Secretary of Veterans Affairs a concomitant duty to ensure compliance with the terms of the remand...” The Court continued, “We hold also that where, as here, the remand orders of the Board [of Veterans Appeals] or [the CAVC] are not complied with, the Board itself errs in failing to insure compliance.”


If it gets to the point where I have to contact the BVA Ombudsman’s Office, I will be sure to cite this. I wonder if the VLJ’s get perturbed when an RO fails to comply with their orders.

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Thanks to everyone for the feedback. I actually did submit the fast letter that Carlie posted to the RO on December 6. The BVA also denied a separate issue in the decision, so the fast letter describes my exact situation. My VSO told me that this VSCM is notorious for taking his sweet time when it comes to authorizing retro. Apparently he thinks he’s above the law and VA regulations. In response to the BVA denial, I filed my Notice of Appeal with the CAVC last week. I’m worried that I won’t get my retro before the appeal is docketed and my file is transferred to the Office of General Counsel. If that happens and the RO does not have my file anymore, who bears the responsibility for paying me?

Berta, how did you get in touch directly with the OGC? Did it take long to get your retro after the OGC’s order to the RO?

By the way, I recently found a great case regarding veterans’ rights and remands.

In Stegall v. West, 11 Vet.App. 268, 271 (1998), the CAVC held that, “A remand by [the CAVC] or the Board [of Veterans Appeals] confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders. We hold further that a remand by this Court or the Board imposes upon the Secretary of Veterans Affairs a concomitant duty to ensure compliance with the terms of the remand...” The Court continued, “We hold also that where, as here, the remand orders of the Board [of Veterans Appeals] or [the CAVC] are not complied with, the Board itself errs in failing to insure compliance.”

If it gets to the point where I have to contact the BVA Ombudsman’s Office, I will be sure to cite this. I wonder if the VLJ’s get perturbed when an RO fails to comply with their orders.

I would already - like a month ago - have contacted the BVA Ombudsman's office

regarding my negated retro cash.

JMHO

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Carlie is right




This the OGC number I used in 2012.
1-202-273-6385




The number might have changed since
then.




My retro was a FTCA Offset that OGC and
I negotiated long ago so my situation was far different from yours. You dont ave a OGC problem.



If the ombudsman cant help , contact
the Media room at VA Central and tell them you are going to the press
with your story....




I put that Media room contact here
available under a search or




maybe better yet, use IRIS, click on
the Complaint menu,follow the menu and then VA Central will get your
IRIS and they do act on legitimate complaints.




Or do all of above. Steve on Fox
news just said the VA is all screwed up and is a National
Disgrace...I have said that here myself.it IS a disgrace The Fox news was
about the vet who killed UBL but I have serious problems with the way
they are presenting that veteran's issues as well as the way they are
portraying the VA. I dont think any of them doing this story at Fox
have a clue on Mil benefits, and the claims system. They should have interviewed someone here at hadit instead of the guy they have had on this AM .I think he is the vet's lawyer....

If so, he doesn't seem to understand retiree criteria and even VA 101.







Edited by Berta
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Hello Everyone,



I just wanted to provide an update following my visit to the RO on Tuesday.


Before I was planning to go to the RO, I went to speak with a representative from DAV (they are located in the same building as the RO) because I had some questions regarding evidence I was going to submit in support of the remand from the BVA. I also asked about my retro. The VSO I spoke with happened to be the assistant supervisor, so he was very knowledgeable. He couldn’t find anything regarding my retro or remand in his computer, so he went and spoke with the VSCM. It turns out that absolutely NOTHING was done on either issue. Contrary to what I was told on January 15, my file was not on the VSCM’s desk awaiting his approval. The VSO said that the VSCM was totally pissed off and swearing up a storm due to the inaction. Also, documents I submitted after the BVA decision were placed in my claim file, which was in a locked file room for the purpose of preventing this kind of thing from happening, as nothing can be placed in a claim file when there is potential
for an appeal to be filed with the CAVC. The documents should have gone into my temporary file, which was totally empty.


Anyway, the VSCM said he was going to make sure my retro is processed immediately. My VSO told me that the RO has to write up a rating decision in order to promulgate the BVA’s order before I can get paid. The VSO called me the next day and said the decision was completed and that the next
step is for the department that handles payments to process the award. I haven’t received the decision or retro yet, and was told that it could take up to two weeks for the payment to be processed. This seems like a long time to me for what appears to be a simple task, but I am glad there is definitely some action being taken on my claim. In light of the foregoing, I did not submit the letter posted above.


I mistakenly thought going to the RO in person would provide more information than IRIS, the toll-free number, and eBenefits and expecting that the information would be accurate. It’s amazing how the information I was given on two previous occasions turned out to be so wrong. Also, I spoke with someone from the DAV on the same days I visited the RO. I’m kind of pissed that the individual I spoke with could have found out the real deal if he bothered to go downstairs and ask, rather than merely accepting what was on his computer screen, which basically the same information provided by the RO.


I will let you all know when I finally receive the retro.

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If you have any evidence to submit to the BVA - be sure to fill out, sign and

submit a copy of a Waiver Of VARO Consideration, with it.

IF NOT

It would more likely than not will result in an automatic remand

for your VARO to consider the evidence not yet of record, to them.

JMHO

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Hi Carlie,

I would definitely like to waive RO consideration. In my experience, it seems like RO personnel are not good about actually reading or understanding evidence submitted to them. Unfortunately, based on my interpretation of 38 CFR 4.16(b) and 38 CFR 3.321(b), I don't believe I can waive RO consideration. Both laws state that the RO must submit the request for extra-schedular consideration to the Director of the Compensation and Pension Service, so ultimately it is not the RO making the final decision. If the Director denies the claim, then I can appeal to the BVA. Like I said, this is only my interpretation; I could be wrong.

Sergeant G

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