Claim Abandonded By Aoj Question

[add55p]

All

I have read that if your calim is abandoned by an AOJ(VARO) and later reopened as a new claim and denied by another AOJ (VARO), That the old abandonded claim is also considered denied.

Example: The initial claim was being processed by the New York VARO. New York VARO sends the veteran a letter stating that we are still processing your claim and need additional evidence. Your are being allowed 10 days to provide the evidence. If we do not receive the evidence by that time, we will make a decision on your claim and you will be notified of the decision..

A year and a half goes by and the veteran hears absolutely nothing from the New York VARO. So the veteran sends a inquiry requesting that the New York VARO review his claim for a rating decision.

The veteran never received a response back from the New York VARO. Instead, he received a letter from the Tulsa VARO stating "We have received your claim for compensation dated (the date of my New York VARO inquiry). This letter will explain what we will do and etc.

The letter from the Tulsa VARO goes on to say, in bold type, "your claims folder was relocated to the National Personnel Records Center in St. Louis. We requested NPRC to return the claim folder to us. after we receive the claims folder we will begin processing your claim. The Tuls VARO processed the claim as an initial submission and denied the claim.

Based on the above scenarion, could there be a due process, adjudication, or other error made by the New York VARO. Should the New York VARO have sent the veteran a decision prior to abandoning the claim?

As always,

Thank you..

Add

[Philip Rogers]

I think there could be . . . but . . . s/he needs to get a copy of their c-file, as soon as possible, to verify that errors were actually made. jmo

pr

[Gastone]

Add: The VA has never sent me anything US Mail CERT RTN RECT Requested. If they sent me something to my address of record, I really have no way of proving it, neither do you. I wouldnt be surprised if a claims Denial Decision was mailed (according to VA Records) and you didn't receive it or aren't aware you received it. Once the Appeal window (12 months from Denial Letter Date) lapses, I think you might be locked into filing a new claim. Might not be a bad idea anyway, with the new FDC claim available. If you have Solid Evidence for the FDC, get it in and maybe you could get a SC award within 5 to 9 months. After & during the Award wait time, look into any remedies you might have regarding the Mail problem or whatever caused the initial screw up.

What did your VSO-Rep and your E-Ben site have to say regarding the Phantom claim??

Semper Fi

Gastone

[broncovet]

The VA wants to turn a long process into a VERY, very Long process, as all delays profit VA at the expense of the Veteran.

Your claim now has two steps, instead of one:

1. You need to reapply, referencing your earlier claim.

2. You will almost certainly need to appeal the effective date fighting for what is yours.

The reasons VA Delays you are profit related and it always works out in VAs favor..always:

1. If you die, then your claim dies with you.

2. If you get too sick to send in paperwork, your claim will be considered abandoned.

3. Finally, if you persist long enough and get your benefits, the VA always gets a zero interest loan, compliments of and on the back of the Veteran.

[Berta]

If the claim fell under the VCAA (2000) (filed after the enactment of the VCAA)

they could have violated the VCAA and caused the 'abandoned ' claim themselves.

VA tried to pull that on me in 2003. They said I failed to respond to their VCAA response form (which they did not send to me and which I proved to the BVA I never got.

The whole VCAA letter I got was not in compliance with the VCAA regulatuions involving sutrvivors claims.

It didnt matter however becaue I supplied evidence that was probative anyhow because

althought the VCAA was deficient, I knew exactly what evidence I needed and I had it.

But you would have to prove the VCAA letter you got was not in compliance with the VCAA as well as prove that their error gave you no other recourse but to abandon the claim.

The onus is on us, as the claimant and not on the VA regarding abandoned claims.

In other words we should realize as claimants that the VA will want evidence to support the claims we file. ( re: evidentary development below in the last BVA decision)

This is a pre VCAA abandoned claim decision:

"In brief, we find that the veteran, by failing to respond to the RO's

February 1988 request for additional information, abandoned his

January 1987 claim for pension benefits, that he did not thereafter

again request such benefits until December 1989, and that pension

benefits were granted based upon the date of that application, with

payments beginning the first day of the following calendar month.

For such reasons, we find that he is not entitled to an effective

date earlier than January 1, 1990, for the granting of a permanent

and total disability rating for pension purposes. 38 C.F.R. §§ 3.31,

3.158 (1993).

ORDER

An effective date earlier than January 1, 1990, for the granting of a

permanent and total disability rating for pension purposes is denied."

http://www.va.gov/vetapp94/files1/9403748.txt

These are some BVA decisions after enactment of the VCAA as to abandoned claims and this explains what I mean in detail::

http://www.va.gov/vetapp11/Files3/1123162.txt

http://www.va.gov/vetapp10/Files6/1044280.txt

http://www.va.gov/vetapp06/Files5/0638119.txt

In this following decision the BVA states:

"The law states that "where evidence requested in connection with an original claim... is not furnished within 1 year after the date of request, the claim will be considered abandoned." After the expiration of that year, further action will not be taken unless a new claim is received. 38 C.F.R. § 3.158(a)."

and

"The duty to assist is not a one-way street. A veteran cannot passively wait for assistance in those circumstances where his cooperation is needed for necessary evidentiary development. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The law governing such circumstances is clear and mandates that the claim be considered abandoned and the appeal dismissed. See Hyson v. Brown, 5 Vet.App. 262 (1993); 38 C.F.R. § 3.158(a). "

and

"38 C.F.R. § 3.304(f)(5) states that "VA will not deny a posttraumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence." Although the Veteran has not been provided with notification pursuant to 38 C.F.R. § 3.304(f)(5), he has abandoned his claim and has not notified VA of any address to which such notice could be sent - additional notice letters would be pointless as they would not reach the Veteran. See Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App.426, 430 (1994). Further, the Board is dismissing his claim as abandoned rather than denying on the merits (italics added for emphasis) - 38 C.F.R. § 3.304(f)(5) prohibits only denials.

As the Veteran has abandoned the claim on appeal, there remain no allegations of errors of fact or law for appellate consideration. Under 38 U.S.C.A. § 7105(d)(5), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. The claim is dismissed."

http://www.va.gov/vetapp12/Files4/1225093.txt

I saw many claims at the BVA this morning that involved a re opening ,so to speak, of an abandoned claim, for a better EED.

These were claims whereby the veteran had succeeded in the 're open' which I dont even feel it the right word to use...they were awarded ,in my opinion, on completely New claims they had filed, because the abandoned claim was gone.

The fact the the new claim succeeded made no difference to the fact they had abandoned a claom prior, for the exact same disability.

The C file as suggested above , would need to be gone over many many times, to see if in fact VA had done something to cause the claim to be abandoned.

It doesn't happen too often and if the vet moves and the VA fails to get their new address from the veteran,and doesn't contact them at all within the year as mentioned above, after filing the claim,

address problems have the onus on the veteran, not the VA.

These days with claims taking 2 years or more to even get a decision, a vet has to keep a good watch on the movement of thier claims after they file them.

I have never received a single letter or anything from my VARO in Buffalo on my 2 pending claims.

I have to depend on IRIS and 800# for statuses.

But at least I know where my claims are and I save my IRIS responses.

Plus I save every USPS tracking slip as well.I also print out and save the VA USPS receipt notice on line at tghe USPS Tracking area.And I sent copies of 53 tracking slips to the H VAC during Shreddergate to prove that VA had my evidence but failed to even consider it,.so maybe they must have shredded it.

I found no EED awards at all at the BVA based on abandoned claims that eventually succeeded as new issues and that weere awarded the EED of the new claim date.

[add55p]

All

In the Evidence section of the denial, VA does not mention that the earlier claim processed by New York VARO. Normally, past decisions are mention. I am certain that the claim was simply abandoned by the New York VARO.

The question that I would like an answer or feedback on is: If Va states in writing that they will notify you of there decision, are they bound by that written statement?

The VSO has also verified that the claim was never completely adjudicated.

My VSO reps does not have the heightened interest in my claim as I do. . It seems as though they are afraid to press VA on any issues and just tell me to wait it out.

Thank you all..

Add

[Berta]

"If Va states in writing that they will notify you of there decision, are they bound by that written statement?"

Yes...unless you have abandoned the claim....

by failing to send them whatever they have requested...

"The VSO has also verified that the claim was never completely adjudicated."

"I have read that if your calim is abandoned by an AOJ(VARO) and later reopened as a new claim and denied by another AOJ (VARO), That the old abandonded claim is also considered denied."

That is a correct statement but I would put it differently.

An abandoned claim is a done for claim .Moot, Nada, in the crapper.

But if the VSO said the claim was not fully adjudicated, that gives me concern....

and I would think he would be willing to look into that more....

He sees something we don't see here.

Edited November 28, 2014 by Berta