Va Non Compliance With Remand

[broncovet 4,214]

Berta posted:

I have advised here to vets to follow the remand yourself in many situations.... meaning ,don't depend on VA to do what the remand calls for....

That worked for me in 2009 and I got a favorable decision within a few months after rebutting a C & P they remanded for and I ordered another IMO.

The award came before I even received the 4th IMO because I rebutted successfully and sent the rebuttal and more evidence directly to the BVA.

If BVA remands for more info from NARA, private doctors, any DOD or Military department, etc etc, it is always possible that the RO never complies fully with the remand.

Yet in the time a BVA remand can take we all have time to follow up on what BVA says the claim still needs.

end Berta quote.

Thanks, Berta, for that advice.

Yes, I find the VA's non compliance with remands more than a little frustrating. I mean, think about it. You file for benefits, they are denied. You appeal and get a remand, so what does VA do? Oh, yes they ignore what the BVA tells them to do.

I do like Berta's idea of using this to the Vet's advantage, but am not sure exactly how to do this and will humbly ask Berta what to do. Of course, you can send VA letters, but they usually do not respond to those, either.

I guess Berta is suggesting sending the "evidence" direct to the BVA. In my case the BVA said the VA had to do a C and P exam for IU, which, after 2 years they have not done. I guess Berta is suggesting I write to BVA and ask them why the RO did not comply?

Thanks for your input.

[carlie 56]

bronco,

With your 100 % rating, is the IU shown as a moot point now ?

[broncovet 4,214]

The VARO decision stated that IU was moot. However, I appealed and the BVA judge remanded and specifically stated that "IU was not moot". My reasons it is not moot:

1. IU would warrant an earlier effective date, or at least potentially so.

2. 100% depression plus IU would (or could) mean SMC-S housebound. (100 plus 60).

Im not sure about number 2, but certainly, since I applied in 2002, IU could mean a five figure retro check. The BVA judge agreed with me, that, in at least my case, IU was not moot.

Its all about SMC and the effective date. Sometimes I think I should just forget about it, but, I really have evidence that I applied in 2002, so it would be 5 years retro, since my 100 percent was 2007.

Edited November 5, 2014 by broncovet

[carlie 56]

The VARO decision stated that IU was moot. However, I appealed and the BVA judge remanded and specifically stated that "IU was not moot". My reasons it is not moot:

1. IU would warrant an earlier effective date, or at least potentially so.

2. 100% depression plus IU would (or could) mean SMC-S housebound. (100 plus 60).

Im not sure about number 2, but certainly, since I applied in 2002, IU could mean a five figure retro check. The BVA judge agreed with me, that, in at least my case, IU was not moot.

Its all about SMC and the effective date. Sometimes I think I should just forget about it, but, I really have evidence that I applied in 2002, so it would be 5 years retro, since my 100 percent was 2007.

That's exactly what my concern's were.

[Berta 4,215]

Broncovet, can you give us a link to the BVA remand?

As soon as I get more time I will try to follow up what I mean by having a claimant follow the remand.

I had not filed a Waiver of further RO consideration, only because my VCAA letter was not legal.

I had asked the BVA for the remand myself on that basis (they agreed) but they also ordered the additional C & P,which I didnt expect, I felt I had more then enough evidence to succeed.

But I am not sure ,if a waiver like that is filed, whether BVA could still remand a claim...........which might still have a benefit to a veteran....Remands are far better than outright BVA denials.

A Remand opens the claim up for more evidence at the RO level...but then again....will the RO read the additional evidence and award or is the vet still locked into the hamster wheel????

I bet Carlie knows.....

[carlie 56]

Broncovet, can you give us a link to the BVA remand?

As soon as I get more time I will try to follow up what I mean by having a claimant follow the remand.

I had not filed a Waiver of further RO consideration, only because my VCAA letter was not legal.

I had asked the BVA for the remand myself on that basis (they agreed) but they also ordered the additional C & P,which I didnt expect, I felt I had more then enough evidence to succeed.

But I am not sure ,if a waiver like that is filed, whether BVA could still remand a claim...........which might still have a benefit to a veteran....Remands are far better than outright BVA denials.

A Remand opens the claim up for more evidence at the RO level...but then again....will the RO read the additional evidence and award or is the vet still locked into the hamster wheel????

I bet Carlie knows.....

Berta,

I don't remember the exact wording but recently I believe there was a change in

38 USC or 38 CFR, that made it so a written waiver of AOJ, (VARO) consideration is no

longer required in order for BVA to go ahead and consider evidence that the AOJ, (VARO)

has not yet considered.

I know we had a topic going on here about it.

Here's a link to this topic:

Here's a link to the

Fast Letter: 14-02 dated May 2, 2014

http://vetaffairs.sd.gov/veteransserviceofficers/Resources/Fast%20Letters/FL14-002.pdf

My question on this issue and fast letter is:

does it relate to ALL appellants

at the BVA level

OR ONLY, Honoring America’s Veterans and Caring for

Camp Lejeune Families Act of 2012, Public Law (PL) 112-154 ?

Berta - maybe when you speak with the BVA Ombudsman's office you can get clarification

on this. Maybe they can email or snail mail something in writing.

I believe this fast letter is to save BVA and the appellant, working time and resource's and negate the need

for BVA to remand due to evidence to consider and no receipt of Waiver Of AOJ (VARO) Consideration.

Also, I think important to note is that in SOME instances the AOJ MIGHT NOT

be the VARO that has processed the claim issues and the appeal was at.

I believe that could be possible in some cases but surely not the majority or a

a large portion.

I'm sure if need be, the BVA can and will still remand for other reasons they determine

but going by this fast letter there will no longer be a BVA remand required, for the AOJ

to consider evidence that is received after the substantive appeal is of record, perhaps

even evidence received WITH THE SUBSTANTIVE APPEAL ITSELF.

I'm remain a bit foggy on this second part for now.

jmho

[broncovet 4,214]

Thank you Carlie Berta for your responses. And, I apologize for not responding earlier..I had considerable other things going on. What happened was the BVA remanded (in part), denied (in part), and granted (in part) in 2011. I appealed to the CAVC some issues which were denied. (You cant appeal a remand) I came to an agreement with the CAVC (JMR) and The VARO implemented the JMR in 2012. I am in dispute of the VARO implementation, in part, because the VARO did not comply with the 2011 Remand order for a C and P exam for TDIU.

Currently, I have filed a nod on VARO implementation and awaiting a DRO review.

In relevant part,

I had argued that the issue of TDIU was not moot because:

1. An award of TDIU could result in an earlier effective date and

2. An award of TDIU could result in SMC S/ under Bradley vs Peake.

The Board agreed with me, that TDIU was "in fact, not moot", but then the RO decision simply ignored the BVA remand for a C and P exam to deterimine eligibility for TDIU.

Im thinking of emailing "asking Bob" or filing a writ demanding VARO compliance with the 2011 remand. I also like Berta's idea on simply writing the BVA a letter complaining of non compliance with remand. Thanks

Berta...I guess Im having a senior moment and can not remember how to provide a link to the remand, but I will probably think of it when I get some coffee or stop thinking about it.