Question About Bva Remands For A Decision I Got Yesterday

[Devil_Dog]

Hi Everyone,

Here is my question. This stems from a 2008 U.S. Court joint remand on 2001, 2003, 2004, 2005 RO and 2008, 2011, and 2012 BVA denials for higher back ratings. Goes back to the BVA and they remand six items for new exams. July 2013 Hartford RO denies all claims but bumps me up from 10% neurological combined to 40% left leg and 20% right leg. I had an attorney at the time. I know we sent correspondence back but I need to check my records. Not much sleep last night. Anyway BVA finally gets it in July 2014 and makes a decision a week ago. I get it yesterday and my back goes from 20% ortho 2000-2009 to 40% back to 2000. Okay thats good. However, they state in my decision they can not review the neurological aspect because I didn't NOD the ROs 2013 decision for an earlier effective date. My back is the main issue on remand. I didn't NOD the ortho part and they bumped that up. That was denied in the same 2013 RO decision. I thought the whole remand / new exams was for a 10th bite at the apple? I know I can CUE but WTF? Based on my evidence I should have rated minimum 20% for both legs at least back to 2006. Thanks.

BTW it's DAV_Marine72. PWD reset not working for me this morning.

Edited February 24, 2015 by Devil_Dog

[Devil_Dog]

Isn't the entire time while the BVA issues a remand considered under appeal? They are just mad because the U.S. Court threw their decisions out :)

[Devil_Dog]

De Novo review? Like a DRO?

[Navy04]

Glad to hear you got a partial win, and sorry to hear of your issues bud. I was medically Retired 2 years ago, and have fought the VA since then on my back and L knee. Finally it looks like they will be granted. I did not go the NOD or Appeal route, as I just felt I did not have the strength to sit around and fight with the VA. I have had a handful of conditions where I just kept reopening the claimed conditioned. In my case that seemed to be the best. You have done a very nice job thus far. Good luck and God Bless

[Devil_Dog]

Thanks Navy04. I actually read the decision again this morning while less peed off. They stated I never appealed the neurological ratings after that 2013 decision or before. I specially wrote over 10 statements stating my ratings for both my legs were wrong from 2004 - present if not more. So they are full of crap again. Same BVA judge for 5 decisions now. He changes his opinion / thought process every time. Quite comical if we weren't dealing with my sanity and $$$$.

[broncovet]

Very good question. The courts have a hard time deciding on the defination of "claim". Is it a "claim" for back benefits, a "claim" for neuro, a "claim", a formal claim, an informal claim, an inferred claim, not to mention "new" claim, "secondary" claim, "claim for increase", claim for retro, etc? Or are they all the same "claim", (inextricably intertwined), but different "issues".

The BVA often uses the term "issue(s)".

If you do file a NOD, they want you to define the "issues" and can ask for clarification for those! (What happens in the space for "issues" if you put "all of them"? )

And, what about deemed denials (tho Berta does not seem to think these exist, trust me, Im fighting deemed denials and its one thing for case law, quite another for a Veteran to push the VA to enforce it, tho we should eventually prevail. How do we appeal issues the VA failed to adjuticate???

Maybe you, or someone else can force the court to define "claim" as their appears to be no LEGAL defination. Is it all the issues? Is it just the ones listed? What about the statuatory issues (such as the 100 plus 60 requirement for SMC S)? What about informal claims (this one, I think, has a legal defination!) Then there is "free standing claim"? What is that? Is it still a "claim" when it goes to BVA, CAVC, or federal court? If so, is each issue a seperate claim, or are they all one single multi issue claim? What happens to the defination when VA adjuticates some issues and defer's others? Is the claim split in two? What about a widow's claim? I think there is something there called substitution of claimant. Can a claimant have a substitute, if he is mentally ill, that can persue benefits? Who is the substitute? VA law is in constant flux, and Im pretty sure CAVC has not defined "claim" as that is what the VBM indicates (tho mine is an older one)

Did you know the VA is required to "maximize the claimants benefits"?

Edited February 24, 2015 by broncovet

[Berta]

"I specially wrote over 10 statements stating my ratings for both my legs were wrong from 2004 - present if not more.

If any of those documents could be construed as an NOD, filed within the NOD timeframe ,that would be great.

"Whether an NOD is adequate is an appealable issue. If the claimant and his or her representative protests an adverse determination made by the AOJ with respect to the adequacy of an NOD, the claimant will be furnished an SOC. 38 C.F.R. § 19.28.

Analysis

The Board finds that the October 19, 2007 statement cannot be a valid NOD with regard to the October 31, 2006 rating decision. While the October 19, 2007 statement was timely as to the October 31, 2006 rating decision and expressed dissatisfaction with the October 31, 2006 rating decision, because the October 31, 2006 rating decision issued decisions with regard to several issues and the October 19, 2007 statement did not specify which issues the Veteran was in disagreement with, the October 19, 2007 statement did not meet the requirements to be a valid NOD pursuant to 38 C.F.R. § 20.201. As above, pursuant to 38 C.F.R. § 20.201, if the AOJ gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified in a valid NOD.

Rather than simply clarifying the appeal issues in the time allotted by the RO's December 2007 letter pursuant to 38 C.F.R. § 19.26, the Veteran's representative perplexingly chose to instead dispute the determination that clarification was needed. Furthermore, it appears that the Veteran's representative is, in fact, not in disagreement with any of the issues adjudicated in the October 31, 2006 rating decision with the exception, perhaps, of the bilateral hearing loss as the Veteran's representative now seems to be pursuing several CUE claims noted in the introduction of this decision that were not part of the October 31, 2006 rating decision.

As such, the Board finds that the October 19, 2007 statement is not a valid NOD with regard to an October 31, 2006 rating decision.
http://www.va.gov/vetapp11/Files1/1108665.txt

In this case the BVA determined a valid NOD had been filed:
http://www.va.gov/vetapp08/Files3/0820966.txt

I feel a CUE claim would be in order.

However I suggest a tactic I used and might not even have needed it but I used it anyhow,

I filed a timely NOD on a 2012 decision.

BUT, I had also filed a request that they CUE themselves on one statement in the decision.

Prior to filing the NOD.

and then I pulled this on them:

1. NOTICE OF DISAGREEMENT with January 17th,2012 VA decision
AND

2. Reminder of my October 28, 2012 Request for VA to CUE itself on Part of their January 17th 2012 decision to me..... sent to both VAROs above …. (enclosed as Exhibit A ,7 pages)
AND

3. Request for Extension of formal NOD deadline, as cited within M21-1MR, Part 1, Chapter 5,
Section B under (d) , and 38 CFR 3.109 enclosed. as Exhibits B & C 2 pages

I believe I am unable to properly respond via NOD to the January 17, 2012 decision,(first and second pages enclosed as Exhibit D) as the CUE issue I raised in October 2012, (as enclosed ) has not been addressed yet by the VA.I feel this is a significant reason, which shows good cause ,for VA to honor this request and if the request for extension of NOD deadline is denied,please consider this as my formal and timely NOD regarding the January 17,2012 decision I received. Exhibit D 2 pages

I can appeal any potential extension deadline denial with the BVA.

Of course if the CUE issue I raised in my October 2012 requests to both above VAROs, is resolved with a proper decision regarding the clear and unmistakable error I raised in my October 28th,2012 letter to you , then I would have no need to consider any NOD deadline extension or any extension denial.

The legally erroneous statement on page 2 of the January 17th,2012 decision is thus:

“ Entitlement to accrued benefits or cerebrovascular accident under 38 USC 1151 is granted with an evaluation of 100 percent effective August 9,1992 to March 1, 1993. “ as within Exhibit D"

It is possible you could ask for a NOD extension, on that older decision, for "good cause"but I suggest, file the CUE claim first .

I love putting a few knots in their underwear.

VA hates this type of legal argument.

They are presently working on the CUE claim and another claim I have pending.

"Good cause" is an open ended determination. Vets should try to use that more than they do if acceptance of their NOD is in question.