Can The Va Open A New Appeal?

[justrluk]

I was checking eBenefits this morning to try and get payment status for GI Bill to school. I happened to check Appeal Status and found a new appeal for a condition mentioned in the remand from my last appeal. Is this normal? Also, I had an appeal in for this condition, but asked that it be pulled as I thought it was holding up the other (more important) appeal. The remand stated that the VARO had to issue a SOC. Now what???

[justrluk]

Thanks, Carlie. That makes sense, though I regret having even filed this issue. I just don't have the energy to put into this anymore. I wanted the appeals over with. I'm a bit exhausted from the conditions, pain and terrible sleep. I know this is a marathon, not a sprint. I just can't see the finish lne any more. I' whining - others have waited far longer and have lived through much worse conditions. I'm just in the bipolar "valley" and have to work through some stuff. I have also been ignoring most of what the VA sends. My wife opens the letters now. If I have to do something, she lets me know and I handle it. Other than that I leave the letters alone.

[broncovet]

Just urluck

Of course, the VA loses/shreds mucho evidence. It is highly likely that the withdrawal of claim was lost or shredded. Thus, the BVA judge would not ignore an issue on appeal, that is, they are not supposed to.

[john999]

You know GERD can in some cases cause cancer. It might be worth letting that claim go through even if you get 0%. I have GERD long treated by pills. The VA also gave me many anti-inflammatory drugs over the years. Have you ever had the docs look down your throat to check out the lining. That is where the cancer can occur. Here is another thing for you to worry about!

John

[FormerMember]

<<<<I happened to check Appeal Status and found a new appeal for a condition mentioned in the remand from my last appeal.>>>>

Consider this for a moment. Do not get too caught up in the word "appeal". I mean no insult to any, but think how the BVA works. If you appeal 3 conditions on your form 9 and give the BVA a waiver to rule in the first instance, any appealed item would go to our friends at the 58th RO (AMC) and an SSOC would be eventually issued from there if "re-denied". If the BVA determined de novo that one of the three claims provoked another consideration (or implied claim), that would be the only way to start this but it still would not be a "substantive appeal". The BVA cannot "start" an appeal. It can only rule narrowly on the merits of the existing appealed items from the Form 8. If one of the three claims had not been decided at the RO in a prior remand, it would have to be remanded again in its own right to be adjudicated at the Agency of Original Jurisdiction (the RO) in the first instance. Simply put, the BVA cannot appeal things for you. Only you or your representative can. If the VLJ spots a prior, remanded claim has not been complied with properly, the only judicial cure for it is to remand for a new decision.

Now, if justhisluk has withdrawn it, it will show up later on the BVA decision as

"The claimant has withdrawn his appeal for GERD and it is no longer before the Board"

In the alternative, some chucklehead DRO will get hold of it and accidentally approve it, thus confusing the bejesus out everyone. Of course, it will be a provisional one (older than two years) and thus be lowballed at 0%. When they do realize their mistake and spot the withdrawal paperwork, they'll ignore it. Unless, of course, Mr. Lucky files a NOD for a higher rating. Then, and only then will they CUE themselves. With the new VBMS crashing so frequently, it's hard to view the electronic files with multiple tabs open to different parts of the Efile. It's rumored that VA is going to buy more servers to cure this problem some time soon Calm down. It's just a rumor and we all know how that works.

[justrluk]

Thanks for the clarity, folks. I think you're right in that the VA never sent a SOC for the GERD denial. The remand ordered it, so they probably opened this issue in order to conform with the remand. I have read of others having experiences like this that ended up taking years to resolve, and almost never in their favor. I still haven't heard anything regarding the new C&Ps ordered by the VLJ. My fear is that a new C&P will show something different because of the use of steroids, Leflunomide and Humira to treat the diseases. I'm in pretty good shape movement wise, although my neck is a mess. If they end up approving 0% for GERD, I'll be ok with it. It's treated and seems to be under control. I get scoped once every other year and they find spots, but never any cancer. Since my colon cancer issue, the docs I have keep a close eye on these things. BTW: just had a call from my family doc. I had to have a chest x-ray for an outpatient procedure and they found a spot on my lung. I'm a non-smoker/never smoked but after the colon removal the doc is a little concerned that this may have been a residual spreading of the disease. So, on with the CT scans, biopsies, etc. As you can see, this remand and subsequent issues are low on my radar. I just wanted them over with. Thanks for letting me vent a bit and thanks so much for all the inputs and feedback on the remand/appeal issues.

[FormerMember]

Last Call...

BVA decision http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp13/Files1/1307577.txt

A review of the Veteran's April 2011 Substantive Appeal, VA Form 9, reflects that he checked box 9A indicating he wanted to appeal all issues listed on the statement of the case, but also indicated that he "reluctantly withdrawn" the issues of sense of smell and yellow teeth. The June 2011 SSOC continued to list both issues. Given the ambiguity created by the Veteran's checking box 9A and the fact that the RO continued to consider the issues on appeal, the Board finds that the claims for sense of smell and yellow teeth have not been withdrawn and will be considered on appeal. See Evans v. Shinseki, 25 Vet. App. 7 (August 4, 2011) (noting that generally limiting testimony at a hearing does not, by itself, constitute a withdrawal of other issues and indicating that VA has a duty to clarify ambiguous statements which may limit the claim and provide notice to an appellant that he or she was abandoning the right to appeal certain issues); Percy v. Shinseki, 23 Vet. App. 37 (2009) (holding that VA waived any objections as to the content of the appeal by treating the issue as on appeal for five years).

The blind leading the blind.