Bva Closed My Appeal - That I Just Filed?

[TiredCoastie]

At this point, I'm hoping that there must be some mistake within the 'tron factory that operates eBenefits. At least I'm hoping beyond hope that's the case but have a bad feeling about this. Anyone else have this kind of scare?

My C-file and appeal have been sitting at our local RO waiting to transfer to the BVA. So I've been patiently watching it do nothing for the last couple of months, even after getting a phone call from the RO telling me that they were about to transfer it maybe a month ago.

This morning, eBenefits showed no motion, like usual.

Tonight, when I logged on to check, I found that the appeal has been closed by the BVA, jumping straight to the "Decision & Claims File Dispatch" phase (over stuff like "With the VLJ") with the following note:

Your case has been received at BVA, and BVA has mailed your decision to you (and your representative, if any) and will be returning your claims file to the VA Medical Center. Please note that transit times vary, and there may be some lag time between when BVA forwards your claims file to its appropriate location and when that location receives it.

Huh? My Form 9 was submitted in mid-November 2014. This ISN'T the years of waiting everyone else is talking about. There must be a problem.

AB8 shows no change to my combined rating.

I've emailed the BVA Ombudsman asking for their assistance (thanks, Berta, for keeping that contact info in the forefront).

Is this some sort of mistake? Why would the BVA return my claim file to the VAMC, not the RO? Could the BVA have decided that not enough information had been gathered by the RO to make a decision either way? But why close the appeal, if that's the case?

Could it be that the RO's mistake was so blaringly obvious that it was remanded immediately upon opening? Or is my appeal that screwed up? Or is this just another eBenefit's hiccup?

[FormerMember]

<<<<<<<<<<<Because it was a DRO decision, the process to appeal starts with a NOD back to the 'RO.>>>>>>>>>>>>>>>

Be careful. You filed a Form 9. That is a substantive appeal. When the VA's DRO suddenly grants on this with less than the requested or desired relief, the matter is still in contention. A VA 9 sets the appeals process in motion and nothing can impede it.

As some of you know, I finally went to the CAVC with an Extraordinary Writ to force VA to $hit or get off the pot on my longstanding 21 year old claims. The DRO had confirmed their denial of a CUE motion on October 6, 2014.

https://asknod.wordpress.com/2015/02/22/cavc-birth-of-a-writ-act-iii-scene-3-two-tickets-to-paradise/

After the Writ hit, they quickly revised that and granted almost all I had asked for. Almost all. They stopped short at granting the requested 100% for the AO disease and gave me an increase to 60% + 10%. They also sent out another SSOC telling me I had thirty (30) days to file a new VA 9 if I was not happy with their less than 100% rating. This was in the form of a SSOC. Never assume anything VA says is the truth for time limits. They are finite and immutable. If you stub your toe and are late, there is little recourse to repair it other than claiming estoppel. I'll let you guess how often that defense works. Filing a new NOD all over again simply means two more years in the in-basket at your RO.

​My suggestion is to proceed as if you never got what you asked for and to continue the appeal so as not to lose your place in the BVA docket line. Lord knows, it's out the door and down the block already. It will not interfere with an interim rating or financial settlement up to now. It merely informs them that in their haste, they somehow overlooked some important evidence. Send in the probative stuff that ennunciates your point. Who cares if it's duplicative or redundant? If they didn't spot it on the first trip, maybe this will provoke a more thorough review yet again. I've done this before and gone through as many as 4 SSOCs trying to get a point across. The worst case scenario is that they send you a note saying your VA 9 is out of time judicially. That's a whole new argument. Best of luck

[TiredCoastie]

Thanks, AskNod! You're one of those who really helped me.

How much time do you think I have to push the button on submitting something? I know you're big on just writting your claims and appeals in letter format, but is there a form I should lean toward? A Form 9, maybe?

I'm not sure if I got what I should have in terms of the retro calculations. Since I had a TIA in August, 2011, which the DRO acknowledged as within a year of my discharge as the rationale for granting service connection, then 38 CFR 4 says that I should be rated 100% for six months afterward then have a mandated C&P to determine any residutals. I did not file for this condition until June, 2012, so it was beyond 6 months of the event. However, does the VA still owe me 6 months of 100% even if I file later for this particular event? That's the big question.

I was also hospitalized for a neurological event in 2013, but that event was never fully explained, so I'm not sure if I want to open that can of worms or not. I suppose I could by pushing forward with the appeal as this evidence was perhaps not considered by the RO and should have potentially resulted in another 6 months of 100%.

Otherwise, I don't have any other problems with the decisions. In terms of ratings and service connection, I got what I argued should have been granted in the first place and cannot complain with the 10% residuals for the TIAs.

This will take some thought and research about if to proceed. With SC for TIAs, that does open up a vulnerability within the VA to push through the later hospitalization and additional retro of 6 or 12 months at 100%. That's a chunk of change and difficult to leave on the table...

Either way, it will take until probably mid-summer for the retro from the initial win on the EEDs and the retro from this win will probably show around Christmas (hopefuly this year ). Coast Guard PPC is a good unit with good people, but they don't have the same technological advantages as DFAS.

[TiredCoastie]

Thanks again, AskNod. Not sure how this will work, but just sent a letter to the RO asking that the SC for TIA be changed to the appropriate condition listed in 38 CFR 4.124a rather than an analogous rating (38 CFR 4.20) and that I was not retro'd 100% for 6 months. I wonder if the analogous rating was a way around paying me the 100%-for-6 months retro I should be owed. Mentioned in the letter that I asked that my appeal be reopened and that the letter should be considered a Form 9 if one is needed.

If the RO pushs this into a NOD as the award letter said was the right document (not a Form 9 as if the package contained an SSOC), which just kicks the can down the road, there's the danger they'll reject it and demand I submit the proper form, although the decision is old enough to be grandfathered beyond the new rules. At least, per the award letter, I officially have a year from the date stamp to appeal. My letter is within 30 days.

FLTMEDOPS, Paul - any news on your appeals?

[FLTMEDOPS]

Well I found out that the RO said that I didn't file my form 9 in time. I won't down to the RO office and showed them my date and time stamped copy as well as my green return card from the USPS. They promptly place my appeal back into the system and it showed up on E BENEFITS that evening. So for almost 2 months it was dead in the water because of failure to file a timely appeal form 9. Because of you guys on Hadit that dog won't hunt! I love each and every one of you to life!

[FormerMember]

There's nothing as satisfying as bearding that goat, sir. I've personally had that pleasure twice of doing the Four no trump with the green card and say "Why, isn't that Frank McGonnagle's signature from the mail room? I see on VA's roster of employees that he's listed as a GS-7. Looks like the Common Law Mailbox Rule applies from where I'm standing." It's worth two pictures on the cover of RS.

[TiredCoastie]

Well I found out that the RO said that I didn't file my form 9 in time. I won't down to the RO office and showed them my date and time stamped copy as well as my green return card from the USPS. They promptly place my appeal back into the system and it showed up on E BENEFITS that evening. So for almost 2 months it was dead in the water because of failure to file a timely appeal form 9. Because of you guys on Hadit that dog won't hunt! I love each and every one of you to life!

Great job! Sometimes I wonder if they pull that when it looks like they're going to lose. I must have sent two or three copies to the RO before they put my NOD in the workpile. Definitely the card to play!

But wait a minute...how can you get an eBenefits response that the BVA decided your claim when you didn't have a "valid" Form 9 in? There's a screw loose somewhere in the RO...

Edited March 28, 2015 by TiredCoastie