Odd Va Info

[Berta]

One of the 800 # vet reps who has never steered me wrong on status of my claim-if he can see a status on the PC screen-

just told me that there was a "re-open" on August 8th of a non appeal issue I had for service connection.

And then yesterday the "re-opened" claim went into adjudication.

I had asked for Reconsideration of their CUE denial a few weeks ago and thought this was the claim he meant.

But I emailed my Congressman about the S 2694 matter and realised that ,in a letter I am preparing for him too, that I needed a status -if any- of the Senatorial Inquiry they have at the VARO on my AO SC claim.

The vet rep at 800# said it seems that is part of the re-open-but he was not sure.

A Non appeal issue -------what the heck is that?

They just have a Temp folder and the rest is all at the BVA- how can they re-open a non appeal issue without the evidence that is in the actually c file?

Any thoughts ?

[Berta]

Carlie- I believe you are absolutey correct---

2003 page 929- and subsequent VBMs-

to show cause for Remand for correction of "procedural defect".

I believe they will have to call back my I-9 from the BVA due to VARO's "procedural defect"

which actually encompassed two significant procedural defects in my situation.

This is why I recently asked them to CUE themselves and the past decisions they had made on my AO claim.

It would then be a non-appeal issue because they would have to take it off appeal status and then

take it back to 2003 and start giving me my DTA rights.

"It was error for the RO to deny service connection on the record before it" Shoffner

Procedural defect in RO decision

and more recently:

"See Godfrey v. Brown, 7 Vet. App. 398 (1995).

Pursuant to the provisions of 38 C.F.R. § 19.9(a) (2005), if

correction of a procedural defect is essential for a proper

appellate decision, the Board is required to remand the case

to the agency of original jurisdiction for the necessary

action." from http://www.va.gov/vetapp06/files2/0608186.txt

and

The Board also notes that the United States Court of Appeals

for Veterans Claims (Court) has held that the plain language

of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to

a claimant pursuant to the VCAA be provided "at the time"

that, or "immediately after," VA receives a complete or

substantially complete application for VA-administered

benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119

(2004). The Court further held that VA failed to demonstrate

that, "lack of such a pre-AOJ-decision notice was not

prejudicial to the appellant, see 38 U.S.C. § 7261(:D(2) (as

amended by the Veterans Benefits Act of 2002, Pub. L. No.

107-330, § 401, 116 Stat. 2820, 2832) (providing that "n

making the determinations under [section 7261(a)], the Court

shall . . . take due account of the rule of prejudicial

error")."

from:http://www.va.gov/vetapp06/files3/0615465.txt

The RO committed procedural error in deciding my AO claim before I got a VCAA election notice and proper VCAA letter and they failed to tell me what specific evidence I needed to obtain (such as an IMO).

This correction at the RO level would be a non appeal issue.

As it would mean my AO claim is not in appeal status. It has not been properly decided per VA case law, so cannot be on appeal yet.

Carlie I think you are right on the Mark here!

THank you- the VBM says it better than I can.

Edited August 25, 2006 by Berta