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

[Gastone]

I don't see a 10 or 30% GERD SC being an IU Determining Factor, the MH SC has to be the Basis for the IU. Your IU Award Letter says what? When was your MH condition 1st Diagnosed (DX'd)?

A BVA Decision to Remand for specific issues isn't necessarily a BVA Award Decision. You or your VSR, never requested a BVA  Official Waiver of the RO Rating of the Remand, correct? 38 CFR 20.1304 (c) addresses BVA Procedures (Remands & Waivers), a very interesting read.

Any chance you could post the Remand portion of the BVA Decision?

Take a look at the attached BVA Remand Decision Louderback 2014. Had to go back to the RO for a SOC to be issued, before the BVA could issue the Denial Decision.

Semper Fi

louderback-bva-decision.pdf

[tk3000]

3 hours ago, Gastone said:

I don't see a 10 or 30% GERD SC being an IU Determining Factor, the MH SC has to be the Basis for the IU. Your IU Award Letter says what? When was your MH condition 1st Diagnosed (DX'd)?

A BVA Decision to Remand for specific issues isn't necessarily a BVA Award Decision. You or your VSR, never requested a BVA  Official Waiver of the RO Rating of the Remand, correct? 38 CFR 20.1304 (c) addresses BVA Procedures (Remands & Waivers), a very interesting read.

Any chance you could post the Remand portion of the BVA Decision?

Take a look at the attached BVA Remand Decision Louderback 2014. Had to go back to the RO for a SOC to be issued, before the BVA could issue the Denial Decision.

Semper Fi

louderback-bva-decision.pdf

Gastone,

Correct, I don't remember requesting a BVA Official Waiver of the RO Rating of the Remand.

At first I did not see the filing of the first appeal being as a remarkable mark in time to have a subsquent appeal going backwards to first one as its initial effective date. But that is exactly what the BVA did even though they may seem unrelated: 

 

 

Edited July 8, 2017 by tk3000

[Gastone]

Page 15 helps make things somewhat clearer.

Your BVA Remand is only about an EED regarding the SMC S Grant issued in conjunction with the TDIU Award dated 10/13 (Effective Date for both TDIU & SMC S 05/16/2013) which you filed a NOD in 12/13. This was an SMC S (1) Scheduler Housebound Award, correct?

Per VA Regs, any Claim for Increase automatically puts the IU Issue in play. In your case, when you filed the Increase Claim ( 2 minor SC 10% issues) back in what 07, that automatically put an IU Award in play. Evidently, there has never been the required SOC or SSOC addressing why IU was not Awarded prior to 05/16/2013.

Currently, both Det & Cleve RO's have reviewed (Readjudicated) your Evidence of Record per the Remand. Have you or your VSO received the SOC or SSOC?

Might be time to start thinking about the CAVC, I think you're waiting for the BVA Denial.

Semper Fi

[tk3000]

7 hours ago, Gastone said:

Page 15 helps make things somewhat clearer.

Your BVA Remand is only about an EED regarding the SMC S Grant issued in conjunction with the TDIU Award dated 10/13 (Effective Date for both TDIU & SMC S 05/16/2013) which you filed a NOD in 12/13. This was an SMC S (1) Scheduler Housebound Award, correct?

Per VA Regs, any Claim for Increase automatically puts the IU Issue in play. In your case, when you filed the Increase Claim ( 2 minor SC 10% issues) back in what 07, that automatically put an IU Award in play. Evidently, there has never been the required SOC or SSOC addressing why IU was not Awarded prior to 05/16/2013.

Currently, both Det & Cleve RO's have reviewed (Readjudicated) your Evidence of Record per the Remand. Have you or your VSO received the SOC or SSOC?

Might be time to start thinking about the CAVC, I think you're waiting for the BVA Denial.

Semper Fi

 

Yeah, the SMC (Special Montly Compensation) is related to the Housebound Award (even though I never claimed it).

On occasion of my first appeal for the EED, the RO did not follow the remand and did not issue another SOC or SSOC; instead they simply sent me a rewarding letter and paid me retroactive to 2010. Ever since, I filed another appeal in order to have the remand and its theory of entitlement  developed and adjudicated. For that second appeal I just recently received a SOC restating the same thing: that on my first appeal l claimied and EED of April 2010.
 

The BVA evoked the principle and theory of entitlement based on the record and its duty of assist and then clearly stated on its own words that an early effective date going back to Oct 2007 was at play. All along the ROs ignored this remand and the theory of entitlement for an EED. It is true that I expressly requested an EED  of April 2010 in my first appeal. But the BVA itself establish a theory of entitlement going back to 2007 based on evidence raised by the record: claim is expressly raised by the Veteran or reasonably raised by the record. It is not clear how the BVA would itself deny an appeal whose basis  it initiated and substantiated .

Edited July 9, 2017 by tk3000

[Gastone]

Strictly my take, maybe AskNod will opine in the near future.

It appears that your C-File Evidence of Record from 2007 thru 05/16/2013 did not support an earlier Effective Date for the IU or SMC S Awards.

I believe the "BVA established a theory of entitlement" is a misinterpretation on your behalf. When a Vet files a Claim for an Increase of an existing SC Condition, the RO must view it as a Request for the maximum rating available, to include TDIU & SMC S (1).  The ro's failure to supply the required SOC & SSOC is the only issue being addressed by the Remand.

As I said previously, I don't think your GERD Increase to 30% or your Ankle 30% factored into your IU Award, but it did help with the SMC S (1) Scheduler Award. You mentioned a Mental Health SC, what is it and when was it DX'd and Awarded? I don't recall your mentioning any other SC's. I think you have a recent MH of about 60% and the (2) increase issues 30% each. If my VA Math is accurate, that gives you 60+12+5.4=77.4 rounded to 80%  CSC.

 

[tk3000]

Just now, Gastone said:

Strictly my take, maybe AskNod will opine in the near future.

It appears that your C-File Evidence of Record from 2007 thru 05/16/2013 did not support an earlier Effective Date for the IU or SMC S Awards.

I believe the "BVA established a theory of entitlement" is a misinterpretation on your behalf. When a Vet files a Claim for an Increase of an existing SC Condition, the RO must view it as a Request for the maximum rating available, to include TDIU & SMC S (1).  The ro's failure to supply the required SOC & SSOC is the only issue being addressed by the Remand.

As I said previously, I don't think your GERD Increase to 30% or your Ankle 30% factored into your IU Award, but it did help with the SMC S (1) Scheduler Award. You mentioned a Mental Health SC, what is it and when was it DX'd and Awarded? I don't recall your mentioning any other SC's. I think you have a recent MH of about 60% and the (2) increase issues 30% each. If my VA Math is accurate, that gives you 60+12+5.4=77.4 rounded to 80%  CSC.

 

I see your point, but I respectfully disagree. It seems to me that there is a clear and positive statement within the remand that does not relegate to the RO the decision power but instead provide clear guidelines on how to proceed based on the principle of reasonable raised issues.

The subject of Reasonable Raised Issues is contemplated by the following principle and jurisprudence:

"

It is well settled that on appeal the Board has a duty to address all issues reasonably raised either by the appellant or by the contents of the record. Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008). In Robinson the Court determined that, because proceedings before VA are nonadversarial, "the Board's obligation to analyze claims goes beyond the arguments explicitly made." 21 Vet. App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). "It is entirely possible that the record might 'indicate' a theory of entitlement, but that a lay appellant might not be sophisticated enough to recognize the theory," meaning that "a theory can be both unknown to the appellant and suggested by the record." Id. (citing Ingram v. Nicholson, 21 Vet. App. 232, 256–57 (2007)).

"

My list of serv. connected disabilities: 30% left residual with hardware, 20% left ankle strain, 10% left foot strain, 30% Gerd, 20% left foot neuropathy, 70% mental health