Bva Decision Not Followed By Ro

[tk3000]

Hello Folks,

Not a long time ago, I started a thread in this forum regarding a recent BVA favorable retropayment decision, but this decision subsquent awarding letter relayed by the Detroit Regional Office missed other important BVA adjudications, deliberations, and decisions regarding other claims pertaining and presented on the appeal: Detroit Regional Office simply missed or ignored the BVA decisions regarding the GERD and "Left Ankle" rating increases

In order to address the clear-cut fact that some of the BVA decisions were amiss on the RO awarding letter, I sent few messages and to the Detroit Regional Office which simply went on without any response for over two months, which then let me in a limbo of administrative disgrace and chronic incompetence purported by an entity whose goal is to dodge past cases that reflect an abbherration of incompetence on its part concomitant with the practice of deliberately ignoring any case that is beyond the bare trivial.

Altogether, the mainstay herein is that the RO observed and obliged with the BVA deliberation and decision to grant me retropayment for the IU Early Effective Date appeal, but then simply ignored the BVA's deliberation and decision to grant me increases for my GERD and “Left Ankle” conditions: GERD from 10% to 30%, “Left Ankle” from 10% to 20%. Thus the RO did not observe, did not oblige, and did not comply with the BVA's clear-cut deliberation and decisio to increase ones rating for the GERD and the "Left Ankle" conditions under appeal. One should note that the BVA is a higher adjudicating entity (and a real court of law), thus the RO has to comply with its final decision and not tamper with it or request another C&P for an already decided matter at the BVA level.

Below is a concise message that I sent to the RO explaining the matter at hand:
“
On occasion of my last, the Detroit Regional Office made a determination which, whilst satisfactory in other respects (granted the IO retroactive payment), completely ignored the remaining portions of the BVA decision regarding one's appeal and BVA's remaining decisions regarding such appeals. Please, note that the BVA made a clear cut, object, and explicit decision regarding my GERD and "Left Ankle" conditions that the Detroit Regional Office simply failed to read, skimp reading it, or choose not to read the whole paragraph or sentences pertaining the totality of the BVA decisions. So, the question is: Do one really need to send all the pertaining documents issued directly by the BVA along with any other ancillary document to my Congressman's Office, thus exposing this non-sense situation that is more than another simple lapse from the RO? Or, could the RO simply rectify this failure originated from the RO's inability to read very clear, objective, and concise BVA deliberations concerning my case before issuing the Awarding Letter for my last appeal? And for one having to wait for yet another "claim" simply because the RO failed to read clear-objective BVAs statements and deliberations concerning my appeals previous to issuing the Decision and Awarding Letter is utterly absurd to say the least.

“

In order to raise awareness about this issue sometime ago (1 month ago) I went to county representative (the county rep. who has my power of attorney -- thus he can see things that I can not see -- and he also can back me on the dating of the material and claim sent, etc) in the hope that even though the RO simply did not answer the IRIS message regarding these issues that it would address the issue without further steps once I had followed the formal channels. But then, it only made matters worse: first off, they transfer my case to a different RO office (from Detroit, MI, to Cleaveland, OH) which then requested a C&P exam for well established BVA deliberation, determination, and decision regarding my past appeals that have been fully adjudicated and decided at the BVA level.

Any inputs about how to approach this situation would be appreciated.

Thanks

Edited March 5, 2015 by tk3000 (see edit history)

[free_spirit_etc]

I am not sure they will read all that. I got a bit tangled up in some of the wording.

I think being clear and direct might work better as far as getting results.

Have you tried "The BVA decision dated ___ states _____."

This decision has yet to be implemented by the Regional Office.

As stated, I think they might get tangled up in the venting part of the letter, and miss the parts where you are asking them to implement the BVA decision.

JMHO

[free_spirit_etc]

What does the BVA decision say - specifically?

[Berta]

"But then, it only made matters worse: first off, they transfer my case to a different RO office (from Detroit, MI, to Cleaveland, OH) which then requested a C&P exam for well established BVA deliberation, determination, and decision regarding my past appeals that have been fully adjudicated and decided at the BVA level."

Some of the ROs are so overwhelmed with claims, that a transfer to a different VARO,in your case, might be a good thing.

They ( Cleveland,) as I understand this ,has ordered a C & P, so that means some eventual movement on the claim.will happen.

You did get the IU retro and that is good.

Can you give us the docket Number and Citation Number of the BVA remand?

[tk3000]

Berta:

Having another C&P requested by the RO for a well established decision made by the BVA seems completely illogical and irrational. The RO would simply have to re-read the BVA determination and decision that they failed to fully read to begin with and then rectify their mistakes. The idea that I would have go through the motions of another C&P for a fully developed and decided claim at the BVA level simply because the RO employees are illiterate is rather insane to say the least

In reality I bought a house in Columbus, OH, and request to have my address changed since I am spending most of the time in Columbus these days but my primary residence is still in MI. Anyhow , I would never have requested to have any of my cases moved another RO in Ohio, and did not realize that simply because I change my mailing address it would imply transferring my folders/cases as well. Problem being that the USPS takes forever (several weeks) to forward my stuff

I will look into my BVA decision and post an excerpt of it soon.

free_spirit_etc: I will post an excerpt of the BVA decision, but it makes very clear that they granted an increase for both the GERD and the "Left Ankle" and also specify the date in which such increase should be effective.. So, it is very clear in all respects. I will post an excerpt soon though.

[toddt]

Is it possible that the new C&P exam is for GERD and Left Ankle increases? I don't believe that the BVA would grant an increase without a medical exam which would confirm that your conditions have exacerbated.

[tk3000]

Is it possible that the new C&P exam is for GERD and Left Ankle increases? I don't believe that the BVA would grant an increase without a medical exam which would confirm that your conditions have exacerbated.

This originally was an appeal for an initial decision which granted a lower rating. The appeal was initially done at the RO level by a DRO (huge mistake, only caused more delays) which maintained the RO decision. Then, the appeal was escalated to the BVA (traditional appeal) which recently granted the higher ratings. Simple enough. And, yes, I received a letter directly from Washington D.C. with BVA decisions that clearly granted the higher ratings. As I previous indicated this a fact, and there is not even the faintest shadow of doubt about this fact.

[tk3000]

I am attaching a copy of the penultimate page extracted from BVA decision letter

It turned out that I also noticed something which I have failed to notice before, and this thing seems to be a very positive thing if it turns out to be true: it mentions a much earlier (2007) potential effective date for the IU early effective date appeal

Below are links for the penultimate and last page:

https://farm9.staticflickr.com/8678/16698512216_01c5e8cba3_z.jpg

https://farm9.staticflickr.com/8651/16723416912_aca5e29fbc_b.jpg

Edited March 5, 2015 by tk3000 (see edit history)

[toddt]

It would seem that the RO missed the "ORDER" from the BVA:

ORDER

A rating in excess of 30 percent for a left leg disability, diagnosed as a healed fracture to the tibia, is denied.

A 20 percent rating, but no more, a left ankle disability for the period since March 30, 2009, is granted, subject to the laws and regulations governing the payment monetary benefits.

A 30 percent rating, but no more, for GERD is granted, subject to the laws and regulations governing the payment monetary benefits.

This appears to be your Citation Nr: 1444727. Found here: http://www.va.gov/vetapp14/Files6/1444727.txt

[ketchup56]

I agree with tk3000 that their is no need for exam as bva has already done the rating. You are due retro on the two awards. You did well by getting your rating directly from bva because it's cut and dry of what they owe in retro.

[tk3000]

It would seem that the RO missed the "ORDER" from the BVA:

ORDER

A rating in excess of 30 percent for a left leg disability, diagnosed as a healed fracture to the tibia, is denied.

A 20 percent rating, but no more, a left ankle disability for the period since March 30, 2009, is granted, subject to the laws and regulations governing the payment monetary benefits.

A 30 percent rating, but no more, for GERD is granted, subject to the laws and regulations governing the payment monetary benefits.

This appears to be your Citation Nr: 1444727. Found here: http://www.va.gov/vetapp14/Files6/1444727.txt

Cool! But I was wondering how you retrieve the citation no? I would assume that it should not show up on google so quick.

[tk3000]

Today I went to the VA Ambulatory Center in Columbus, OH, in order to inquire about and explain the situation. At first, I talked with a very nice guy whom is in charge of scheduling C&P appointments and proceeded to explain to him the nature of the situation, and everything was very sensible and intelligible for him; but then he indicated that he only did the scheduling and were not into the adjudicating process and its steps so he could not relay any message to the RO on my behalf, And in order to relay a message to the Cleveland RO he took me to talk to someone at the same medical facility who happens to be Veterans Administration Benefits representative. All along, talking to this VAB guy was one of the most obnoxious and obtuse experiences I have ever had in my life: he was basically trying to convince me that the whole thing was part of the remanded early effective date for the IU and that the SMC was the key word for the whole thing. He was therefore indicating that the RO would re-adjudicate a well deliberated, determined, and decided appeal by the BVA which have already gone through all the claim and appeal process, motions, and steps and have ultimately been decided at the BVA level should then go back to be decided yet again by the clowns at the RO only because the name REMAND alongside the key word SMC were present even although the remanded portion have no relation or correlation whatsoever of any nature, shape, or form with this scenario concerning the “GERD” and “Left Ankle” appeals and subsequent failure of the RO to update the ratings. I thought I had seen everything but this guy really took the meaning of distortion to a whole new level.

[broncovet]

Interestingly, I am in the same boat as you. The VARO in Cleveland failed to comply with my 2012 BVA remand order.

As you have pointed out, the Veteran has an absolute right to RO compliance with the remand. Still, the VARO's do not always comply.

The following is my recommended sequence to force the VARO into compliance: (None of this should be necessary!!!)

1. You could/should send a 21-4138 to the RO, explaining your situtation, if you have not already.

2. You can write/email/call the BVA and tell them no implementation of your remand.

3. If you have not recieved a satisfactory response, then try emailing Allison Hickey or Robert McDonald, again explaining the failure to comply with REmand.

4. The last stage is to file a writ of mandamus with the CAVC to "compel the RO to comply with your BVA remand order".

Im in step 3, above, and hopeful a writ is unnecessary. I have already filed a writ, on a different issue.

Edited March 5, 2015 by broncovet (see edit history)

[free_spirit_etc]

tk3000,

What date did they go back to on the IU award?

[tk3000]

Interestingly, I am in the same boat as you. The VARO in Cleveland failed to comply with my 2012 BVA remand order.

As you have pointed out, the Veteran has an absolute right to RO compliance with the remand. Still, the VARO's do not always comply.

The following is my recommended sequence to force the VARO into compliance: (None of this should be necessary!!!)

1. You could/should send a 21-4138 to the RO, explaining your situtation, if you have not already.

2. You can write/email/call the BVA and tell them no implementation of your remand.

3. If you have not recieved a satisfactory response, then try emailing Allison Hickey or Robert McDonald, again explaining the failure to comply with REmand.

4. The last stage is to file a writ of mandamus with the CAVC to "compel the RO to comply with your BVA remand order".

Im in step 3, above, and hopeful a writ is unnecessary. I have already filed a writ, on a different issue.

Thanks, I will look into these steps closer. Communicating directly the BVA is something I haven't considered or done yet, and it may be a better approach.

Edited March 6, 2015 by tk3000 (see edit history)

[tk3000]

tk3000,

What date did they go back to on the IU award?

The thing about the remand is that it was only about the IU early effective date, Few weeks after having received the BVA letter via mail I got an awarding letter from the RO, but this awarding letter was only about the TDIU early effective date. It seems that in the remanding phase the RO decided to grant the IU early effective that I had requested initially ( back to 2010) instead of sending the case to the BVA for further adjudication. Besides not having been granted the rating increases defined by the BVA for the GERD and the Ankle, the awarding letter reasoning and development (bases and reasons) of the case for granting me an early effective date for IU was a really rudimentary one, so it must having been a decision that took place at the RO given that they assumed that the BVA would grant the early effective date anyway; but on doing so they also managed to void and avoid following the BVA guidelines (as stated on the BVA decision) for an early effective date potentially going back to 2007. This 2007 potential early effective date is stinging me right now.

Edited March 6, 2015 by tk3000 (see edit history)

[free_spirit_etc]

So you can appeal on the earlier effective date on the TDIU and see if the BVA will grant it back to 2007.

So based on what you stated you talked to the VA person about, it sounds like he was saying that since the TDIU you were granted back to 2010 already took the increased ratings for the other disabilities into consideration. If the BVA granted an increased rating for the left ankle back to 2009, and the TDIU only goes back to 2010, it seems like they still owe you retro on the left ankle. I am not sure about the GERDS. Was that what you were appealing back from 2007?

[tk3000]

So you can appeal on the earlier effective date on the TDIU and see if the BVA will grant it back to 2007.

So based on what you stated you talked to the VA person about, it sounds like he was saying that since the TDIU you were granted back to 2010 already took the increased ratings for the other disabilities into consideration. If the BVA granted an increased rating for the left ankle back to 2009, and the TDIU only goes back to 2010, it seems like they still owe you retro on the left ankle. I am not sure about the GERDS. Was that what you were appealing back from 2007?

Yeah, the GERD appeal was initially filed in 2007. This omission and error from the RO part may ended up being a good thing after all since it allowed me to further look into the matter ( BVA developments and decisions ) , thus opened a window to a potentially much larger pending retropayment which likely was deliberately ignored by the RO.

[jbasser]

The VA loves Veterans who move to another state. It doesn't matter where the claim is in the process. They transfer it and guess what??? It is out of their hands and is added to their finished numbers. Vets should never move when a claim is in process.

J

[free_spirit_etc]

Okay. I am getting your point. They should give you retro for the increased ratings for GERDS and the left ankle from the period they were awarded through 2010 (when the TDIU was granted). And you can appeal for an earlier effective date for the TDIU. But you should not have to wait until the appeal is decided to get the benefits that have already been awarded (the increased ratings).

Also, since the BVA brought up the issue of your appeal for TDIU being active since 2007, the RO should have addressed that issue in their decision (i.e. explained why they were only granting it back to 2010).

[free_spirit_etc]

At first I wasn't finding the effective date for the GERD decision. But they have it right here "In the Board's view, giving the Veteran the benefit of the doubt, the Veteran has experienced substantially all of the characteristics of a 30 percent rating, and this rating is warranted for the period on appeal."

So it goes all the way back.