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Strange Remand Question


elcamino_77us
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Question

I just noticed this and was wondering how it effects my current claim and other cases.

In my 2005 BVA this was written:

4. Thereaer, the R0 should again consider the veteran’s pending claims in light of any additional evidence added to the record. In readjudicating the
veteran’s increased rating claim, the R0 should take into consideration 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.59, and the holding in DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). If the benets sought on appeal remain denied, the appellant and his representative should be fumished a Supplemental Statement of the Case and given the opportunity to respond thereto.

The way I read this is that the case was remanded back to the RO for a New C&P Exam along with any additional evidence then it was to go back before the RO for a decision. If my claim is still denied, then I am to receive a SSOC and the Case be forwarded back to the BVA.

However, the RO never issued a New Decision, it just sent me a SSOC and sent the claim back to the BVA.

Am I missing something here???

Thanks

Billy

Edited by elcamino_77us
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that sounds like what they did to me just another denial probably didn't

even consider the evidence but going to BVA they will read the evidence

ssoc is your decision and another waiting line on appeals

Edited by RUREADY
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"However, the RO never issued a New Decision, it just sent me a SSOC and sent the claim back to the BVA.

Am I missing something here???"

I think the claim is missing proper adjudication at the RO level.....are you sure they sent it bacvk to the BVA?

Did you get a C & P? and did they mention the Deluca factor in the SSOC?

Cripes this could set up another Remand from the BVA.

The very first thing the BVA does is check tio see if the RO fully extended to you your rights under the VCAA....

Maybe you should check with the BVA Ombudsman...

bvaombudsman.va.gov

When did the SSOC arrive and can you scan and post it here as an attachment ( cover identifying stuff first,,C file etc)

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Thanks Berta, I will post it tonight.

The way I read it, it was remanded back to the RO from my 2005 BVA. The SSOC I got mentions nothing about a Decision at the RO and sent it back to the BVA for my 2008 BVA decision which since I have found to be full of errors. If you remember the VA misquoted doctors statements and the C&P examination failed to make a diagnoses to deny service connection for a Left Knee disability and Bilatural Radiculopathy. My last claim service-connected those conditions, which I filled a NOD for a EED and a higher rating and am currently trying to get a DRO Hearing.

I don't think they can use a SSOC as a Decision. I may be wrong, won't be the first time.

Thanks,

Bill

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Thanks Berta, I will post it tonight.

The way I read it, it was remanded back to the RO from my 2005 BVA. The SSOC I got mentions nothing about a Decision at the RO and sent it back to the BVA for my 2008 BVA decision which since I have found to be full of errors. If you remember the VA misquoted doctors statements and the C&P examination failed to make a diagnoses to deny service connection for a Left Knee disability and Bilatural Radiculopathy. My last claim service-connected those conditions, which I filled a NOD for a EED and a higher rating and am currently trying to get a DRO Hearing.

I don't think they can use a SSOC as a Decision. I may be wrong, won't be the first time.

Thanks,

Bill

you are wrong and you wont get another decision until BVA grant or denied it

what else can the RO do after they issue a SSOC? RO denied the claim or granted

some but not all of it. It your claim, what ever satisfy you proceed how you feel fit. jmho

Edited by RUREADY
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<<<<The SSOC I got mentions nothing about a Decision at the RO and sent it back to the BVA for my 2008 BVA decision.>>>>>>>>>>>>

The regulations clearly deliniate what you can and cannot do with a SOC (or SSOC). A SOC is specifically designed to tell you several things. It carefully explains all the possible CFRs that are relevant or that were used to arrive at a denial, the parameters ( all specific issues implied in claims) of the denial, and, most importantly, is a convenient way to attach a Form 9 for your substantive appeal to the BVA.

From the CFR:

§ 19.29 Statement of the Case.

The Statement of the Case must be complete enough to allow the appellant to present written and/or oral arguments before the Board of Veterans' Appeals. It must contain:
(a) A summary of the evidence in the case relating to the issue or issues with which the appellant or representative has expressed disagreement;
(b) A summary of the applicable laws and regulations, with appropriate citations, and a discussion of how such laws and regulations affect the determination; and
© The determination of the agency of original jurisdiction on each issue and the reasons for each such determination with respect to which disagreement has been expressed.
And then a SSOC:
§ 19.31 Supplemental statement of the case.
(a) Purpose and limitations. A “Supplemental Statement of the Case,” so identified, is a document prepared by the agency of original jurisdiction to inform the appellant of any material changes in, or additions to, the information included in the Statement of the Case or any prior Supplemental Statement of the Case. In no case will a Supplemental Statement of the Case be used to announce decisions by the agency of original jurisdiction on issues not previously addressed in the Statement of the Case, or to respond to a notice of disagreement on newly appealed issues that were not addressed in the Statement of the Case. The agency of original jurisdiction will respond to notices of disagreement on newly appealed issues not addressed in the Statement of the Case using the procedures in §§ 19.29 and 19.30 of this part (relating to statements of the case).
(b) When furnished. The agency of original jurisdiction will furnish the appellant and his or her representative, if any, a Supplemental Statement of the Case if:
(1) The agency of original jurisdiction receives additional pertinent evidence after a Statement of the Case or the most recent Supplemental Statement of the Case has been issued and before the appeal is certified to the Board of Veterans' Appeals and the appellate record is transferred to the Board;
(2) A material defect in the Statement of the Case or a prior Supplemental statement of the Case is discovered; or
(3) For any other reason the Statement of the Case or a prior Supplemental Statement of the Case is inadequate.
© Pursuant to remand from the Board. The agency of original jurisdiction will issue a Supplemental Statement of the Case if, pursuant to a remand by the Board, it develops the evidence or cures a procedural defect, unless:
(1) The only purpose of the remand is to assemble records previously considered by the agency of original jurisdiction and properly discussed in a prior Statement of the Case or Supplemental Statement of the Case; or
(2) The Board specifies in the remand that a Supplemental Statement of the Case is not required.
(d) Exception. Paragraph (b)(1) of this section does not apply in proceedings before the General Counsel conducted under part 14 of this chapter to cancel accreditation or to review fee agreements and expenses for reasonableness.
[67 FR 3104, Jan. 23, 2002, as amended at 73 FR 29879, May 22, 2008]
Thus a SOC or SSOC can never be a vehicle to announce a grant of SC or increase. It is strictly a tool to use in your upcoming appeal. VA once mailed me both in the same envelope. I had just gotten out of the hospital in 2010 and was hitting on 4/8 cylinders. I missed my 60-day suspense for the F-9 before I regained my senses. Stuff happens.
Now, with all that said, if you sign a Waiver of Review and send it in to the BVA, they will remand it (if necessary) to the Appeals Management Center (AMC) to do the required repair order. This is good. You get it done quicker. Besides, who do you want mishandling your claim? A dufus 26 year old GS-9 VSR in Detroit or an experienced GS-13 at the AMC in DC who has seen everything? Why let them send it back to the RO for some procedural hiccup like forgetting to go get the SS records? Sometimes these things get lost. Let the BVA judge decide it without interminable remands back to your local puzzle palace.
BVA VSO Appeals Teams like to remand you to death for every possible shot at another decision at your local RO before it gets stuck in DC. This is why they love DRO decisions. You get to camp out at Fort Fumble in Detroit while all your buddies take the traditional appeals path to DC and get there two years ahead of you.
To me, a SOC is "What part of 'No' don't you understand?"
A SSOC is "Are you deaf?"
clear prop
Edited by asknod
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Ok, after becoming educated in here the past couple of years, as I re-read the SSOC it doesn't read like Greek to me now like when I first got it in 2008. I relied upon my VSO and what they were telling me, Bad Mistake on my part!!!

asknod, my problem with it going up to the AMC in DC is that my Current VSO Rep up there won't get off his rear and do his job. He doesn't want to admit he made a mistake on my 2008 BVA decision and let the VA screw me. Everybody who's seen my 2008 BVA Decision along with the documents including the local US Reps VA liaison who has over 30 years experience as a VSO Officer, couldn't believe what I showed them and how the VA lied and falsified my medical statements to use them against me.

© Pursuant to remand from the Board. The agency of original jurisdiction will issue a Supplemental Statement of the Case if, pursuant to a remand by the Board, it develops the evidence or cures a procedural defect, unless:
(1) The only purpose of the remand is to assemble records previously considered by the agency of original jurisdiction and properly discussed in a prior Statement of the Case or Supplemental Statement of the Case; or

4. Thereaer, the R0 should again consider the veteran’s pending claims in light of any additional evidence added to the record. In readjudicating the veteran’s increased rating claim, the R0 should take into consideration 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.59, and the holding in DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995).

To me the RO was charged by the Board to consider my claim after it developed the evidence required by the Board.

This would be evident in the phrases "should again consider" and "In readjudication the veteran's increased rating claim, the RO should take into consideration."

The Board remanded my case to develop the evidence including a new C&P Exam as all of my previous was ruled Inadequate for Rating.

If the benefits sought on appeal remain denied, the appellant and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto.

The "benefits sought on appeal remain denied," says there has to be another decision.

That's what I take of this whole thing.

BTW, Another thing that hit me tonight was a statement in the SSoC referring to medical statements which should have made even my 2006 C&P Exam Inadequate for Rating.

My SSoC states this:

If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.

Therefor, how can a examiner ignore their own medical findings to state that I didn't have a current disability??? I think we all know the answer to that.

Thanks

Bill

20080226 SSOC Redacted.pdf

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