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

[tk3000]

"Due to the fact the C&P was overwhelming favorable towards my claim, the RO granted the IU; but then they only went back to about 6 months (instead of going back to 2010) in terms of retropayment."

If that is your BVA case above...

"1. Issue a statement of the case on the issue of entitlement to for an effective date prior to May 16, 2013 for the grant of entitlement to SMC based on housebound status and inform the Veteran of his appeal rights and that he must file a timely substantive appeal to perfect an appeal on that issue. If an appeal is perfected, return the case to the Board."

Did the RO do this yet or is it formally deferred?

"2. Readjudicate the issue of entitlement to TDIU for the period prior to May 16, 2013. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board"

They granted this:

"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."

Free _spirit asked:

"Was that what you were appealing back from 2007? "

I am confused on that too, I think the TDIU award EED........which is a separate issue from the remand.......

Ms. Hickey's email addy is

allison.hickey@va.gov

On Feb 10th I sent her an email and per ebenefits, my claims have been decided. Actually someone from my VARO, called me around Feb 25th ,after I heard from their director too, to see if I had any more evidence, and verified what they had, and he gave me the impression it had already been decided but they needed a 5103 signed form from me.

For 2 and 1/2 years these claims had not been acknowledged by my RO , probably not even read at all, and one was lost for many months but suddenly popped up again.

You have a very legitimate reason to contact Ms Hickey.

But is it possibly that BVA gave those ratings based on older evidence and they might have to be higher by now , thus the C & P exam????

Or maybe the C & P is regarding the TDIU EED claim???? That might be what it is for.......

Still you should contact Ms Hickey because she can get to the bottom of this.

It seems that both the email of the Undersecretary (Hickey) and Secretary McDonald are permanent disabled.

=> My bad. Apparently they block attachments of 11MB size, which is a very trivial size for todays standards. I compressed the file (BVA and some notes of mine) to 7MB, so now it went through

Edited March 9, 2015 by tk3000

[tk3000]

tk3000 -- Is it possible the RO missed this part (as far as effective date) as it is included in the narrative, but not on the order at the end?

Yep, but seemed to miss the whole thing. As if they did not read the BVA resolutions at all.

[tk3000]

Gee maybe I just answered the wrong question......

"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?"

They should send and highlight that part of the remand that tells the RO what to do.

They should send copies of any IRIS or ebenefits responses on the matter. Or tell the Congresssman of any lack of response at all from the RO.

"they lost my ( cue claim ) so i started an inquire,the re-opened the last denial ,and said there was no cue in the last decision.how do you fight that kind stupid."

You appeal it using their regulations.

Do nt overlook usuing M21-1MR as well.

M21-1MR is the implementation of VA regs and case law.

It often contains Citations for precedent CAVC cases throughout M21, that can be used to support the CUE.

Also winning CUEs at the BVA can hold citations to help advance a CUE argument.

The CUE regs are pretty cut and dried and not that difficult to use against them.

The problems with most CUE denials at the BVA is that the specific legal errors VA made were not identified well.by the claimant.

They must be specifically identified refgulations from within 38 CFR,or 38 USC, and/or M21-1MR and be applicable at time of the cued decision, because some regs change in time.

The medical evidence for CUE must also be documented and established by the VA at time of the alleged erroneous decision

and the outcome must have had a detrimental manifestation to the claimant, ie: they owed you cash ,but due to their error you didnt get it.

In introductory write up I pointed out all the relevant sections, pages, paragraphs, and setences (and also highlighted the sentences). I will post a link to a version of this doc shortly.

I will look into this M21. I m in the hope that they could simply do something right and rectify their obvious and obtuse mistake. A CUE amounts to another claim which then amounts to another process.

[tk3000]

tk3000,

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

It went back to May 1, 2010, which was the date I originally filled the IU claim. It should go all the way back to 2007 as determined by the BVA.

[tk3000]

When asking for something with the VA, it is imperative that you put belts and suspenders on everything you ask for. Leave nothing to chance or VA will run in the wrong direction with it. I asked, after a bogus rating on my Porphyria, for VA to consider other Diagnostic Codes in the VASRD. They did. They dropped the 10% for skin to 0% and then changed over to another for 40% for phlebotomies. Lost in this whirlwind 16 month DRO review was the 100% totally disabled finding of the QTC examiner. Ergo-no dice and no 100%. Be specific when you file your motions. VA's strong suit is obfuscation and they have elevated it to an art form. I can't count how many Vets I've helped who sent in queries to ask where their claims were and VA promptly fired up the "reopen" machine and began an entirely new claim knowing full well there was one in the pipeline. Of course, since you cannot have two claims open for the same malady, they politely closed the older, more valuable one knowing you had no desire to continue it.

__x__

o o

Yeah, these are systemic-chronic issues. The more I see it, the more clear it seems that they deliberately deny claims because they have the wanton desire to do so: they are not only wrongfully misadjudicating and failing to follow basic premises of the due process; they are plain and simply committing a crime against the public whom they get paid to serve, and a very special segment of the public who deserved better. If it was in China they would be shot dead point blank, here they pretend that nothing happened and maybe at best they are sent for retraining. In spite of not having a good tracking record in terms of freedom of speech, etc; certain aspects of the Chinese justice and legal system seem much more reasonable to me: crimes against the economic order and crimes against the well-being of the public should be taken very seriously.

[broncovet]

I keep seeing "Cleveland" over and over again when it comes to claim obfuscation.  There are at least 2 examples that Cleveland "doesnt do" BVA implementaions.  After all, implementing BVA claims could cost VARO in Cleveland Money.    It just goes to show VARO "non accountability" knows no bounds.