Va Failure To Comply With Remand Order

[broncovet]

I got a Board of Veterans Appeals decision a year ago. Finally, I got a RO "implementation" decision. The Board Required

consideration for IU (not done) and consideration for sleep apnea(not done).

The Board decision was a partial remand. Neither IU nor sleep apnea were mentioned in RO "implementation" decision, even tho these were required by remand.

My question: Should I ask the VA to cue themselves, or just a NOD, or Writ of Mandamus??

Stegall vs West, says it this way:

The Court has held that a remand by the Board confers on the
veteran, as a matter of law, the right to compliance with the
remand order, and it imposes on VA a concomitant duty to
ensure compliance with the terms of the remand. The failure
to comply (or substantially comply) with the Board's prior
remand directives and to ensure the VA examiner answers the
medical questions posed in the earlier remand constitutes a
violation of the veteran's due process rights.
See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West,
13 Vet. App. 141, 146-47 (1999).

Berta? Carlie?? PR??

What do you think??

A Nod does not make sense as I already "won" the right to this. I am also considering writing to the BVA and complaining about non compliance of a BVA remand order.

[carlie]

Did the RO decide those additional issues were moot due to granting of 100 percent SC ?

[broncovet]

Carlie,

No. The issues in which the Board required a remand (TDIU and OSA) were never discussed with the RO decision. They were not deferred, either.

Interestingly, the Board decision specifically stated that TDIU was not, in fact, moot.

Also, the RO decision stated "we have made a decision based on the Board decision dated xx,xx xxx", so this would imply that it implemented the decision, which I dispute.

I think the VA is trying to catch me napping, hoping I wont appeal and then they can call the RO decision "a final implementation" of the Board appeal.

They also want to "drag it out" and delay me. Now, I have to appeal to get the VA to implement the last appeal.

[broncovet]

Im wondering if this is a good time to "ask the VA to Cue themselves" since it is obvious error for the VA to fail to do what the Board required, that is, to issue a decision on extra schedular IU and adjuticate OSA. Im also thinking of writing to the Board, and asking them what to do when the RO fails to implement the Board decision.

[carlie]

Im wondering if this is a good time to "ask the VA to Cue themselves" since it is obvious error for the VA to fail to do what the Board required, that is, to issue a decision on extra schedular IU and adjuticate OSA. Im also thinking of writing to the Board, and asking them what to do when the RO fails to implement the Board decision.

I would try contacting the BVA with your questions first, next I would try contacting the

VARO / VSCM.

In contacting BVA, I would not hesitate writing a brief letter and mailing it to the BVA Judge

that made my decision / remand.

I have personally done this in the past, with positive results, BUT we did discuss me doing

this during my hearing and the judge gave his permission for me to do so saying he would

keep an eye out for my letter to him.

JMHO

[Berta]

I agree with Carlie, but if that doesn't work, I would ask them to CUE themselves...maybe...

It might help Broncovet, if we had the Citation and Docket number to the remand and if you could scan the actual RO decision and attach it here (Cover the personal stuff)

"Extra schedular" consideration has a life of it's own.....I would like to read that part in the remand,to see why BVA remanded that specific part of the claim.

M21-1MR, Part III, Subpart iv, Chapter 6, Section B

Part 5, A

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&ved=0CDAQFjAB&url=http%3A%2F%2Fwww.benefits.va.gov%2FWARMS%2Fdocs%2Fadmin21%2Fm21_1%2Fmr%2Fpart3%2Fsubptiv%2Fch06%2Fpt03_sp04_ch06_secB.doc&ei=MoQjUvmoHqvDsASXv4HgCg&usg=AFQjCNGd4bultarz4YTTU09hRe2Y3yEG-Q&bvm=bv.51495398,d.cWc

I seem to recall the BVA,itself used to contact VACO for opinions regarding Extraschedular consideration.Now I guess they remand all claims that require the RO to do that.

Did your BVA remand contain a statement similar to this:

“REMAND

As discussed above, prior to June 13, 1996 the Veteran does not meet the criteria 
for TDIU pursuant to 38 C.F.R. § 4.16(a).  However, where the Veteran does not
 meet the percentage requirements for TDIU, but there is evidence of unemployability,
 the Board is required to remand the claim for consideration by the Director of C&P.
 Bowling v. Principi, 15 Vet. App. 1 (2001).  The Court in Friscia v. Brown, 7 Vet. App. 294, 297 (1994)
 indicated that the Board may not reject a claim for a TDIU without producing evidence,
 as distinguished from mere conjecture, that the Veteran can perform work 
that would produce sufficient income to be other than marginal. The Board finds the Veteran's claim 
should be referred to the Director of C&P for consideration 
of an extraschedular TDIU under 38 C.F.R. § 4.16(b).”
from:

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp13/Files2/1315584.txt

Edited September 1, 2013 by Berta