Va Does (Often) Does Not Know The Regs As Well As We Do.

[broncovet]

Many of us have spent more time "working our claim" than the very employee working our claim has.

We know our own medical history better than any employee. We have read the applicable regulations, often many times over, and most of us have even read applicable case law.

Many of us have, or have access to the Veterans benefit manual, but I have not seen a single "reasons and bases" cite the VBM yet.

Hadit members generously help others with their time and their opinions on their case.

We can devote our full attention to our case, while VA employees have to deal with many cases, so we can become a "specialist" with our individual claim.

As Berta has pointed out, many, if not most of the time, the decsion maker for our claim has not even read everything, as we repeatedly see decsions which assume our evidence never happened.

I got an email from the director of a regional office. I had told him that 38 CFR 3.103 required a decision on my "Special Handling Request due to shredded evidence". He responded that it was a "request" and not a decision so they were not required to give notice, and did not have to do a written decision.

38 cfr 3.103(f), however, tells a different story completely:

"(f) Notification of decisions. The claimant or beneficiary and his or her representative will be notified in writing of decisions affecting the payment of benefits or granting relief. All notifications will advise the claimant of the reason for the decision; the date the decision will be effective; the right to a hearing subject to paragraph © of this section; the right to initiate an appeal by filing a Notice of Disagreement which will entitle the individual to a Statement of the Case for assistance in perfecting an appeal; and the periods in which an appeal must be initiated and perfected (See part 20 of this chapter, on appeals). Further, any notice that VA has denied a benefit sought will include a summary of the evidence considered."

I dispute the director's interpretation. There is no requirement that it be a "claim" to warrant a decision, but that it only "affects the payment of benefits". I think there is no doubt that my shredded evidence, and the RO's decision to deny special handling absent a written, appealable decision, conflates the regulation above. Over and over Veterans dispute eligibility, character of discharge, etc, and those things affect the payment of benefits, and are entitled to a written decision with a reasons and bases therof.

Im considering a writ of mandamus compelling the RO to give written notice in order to deny my Special handling request, since this affects my benefits effective dates.

Your thoughts?

Edited May 22, 2015 by broncovet

[broncovet]

RSG

Two months is not long in VA time. Still, I think you can "shake the tree", but I would give it another month. There is a fast letter on "partial grants".

This fast letter says that VA must award partial grants immediately...they had waited and waited..especailly if there was a remand also. You can cite the fast letter, even if your award was not partial. That is, you got everything you asked for, and nothing was remanded or denied.

[broncovet]

Here is the "fast letter" on partial grants:

anuary 6, 2010

Director (00/21) In Reply Refer To: 211B

All VA Regional Offices and Centers Fast Letter 10-02

SUBJ: Implementation of Board of Veterans' Appeals Decisions

Purpose

This fast letter provides clarification of the existing procedural guidance for implementation of Board of Veterans' Appeals Decisions. The instructions provided in this fast letter supersede all prior guidance on this issue.

Background

It has come to the attention of the Board of Veterans' Appeals (BVA) and the Compensation and Pension Service that there is inconsistent processing of claims involving implementation of BVA decisions with partial favorable findings.

It was determined that some regional offices (ROs) were delaying implementation of these BVA partial grants until expiration of the 120-day period within which a veteran may appeal to the United States Court of Appeals for Veterans Claims (CAVC). Delayed implementation of favorable BVA decisions is inconsistent with the Department's long standing pro-veteran position and unnecessarily delays payment of benefits to the claimant.

Procedures

Complete Grants and Partial Awards

ROs are required to review all files returning from BVA to determine the type of action to be taken. ROs must expeditiously implement favorable decisions rendered by BVA in all cases, including those decisions that may also contain unfavorable findings subject to appeal with CAVC.

For processing purposes, a partial grant or an increased evaluation less than the schedular maximum available is considered a "favorable decision." Partial grants rendered by BVA are subject to expedited processing.

Although a claimant may elect to appeal the evaluation assigned by BVA and continue to pursue an increased or total evaluation for the same disability before CAVC, the partial grant should still be implemented immediately.

In many instances, the claims file will not be required to complete the grant or partial grant of benefits ordered by BVA. If a decisionmaker needs the claims file to accurately comply with the BVA mandate, he or she should follow the instructions regarding locked CAVC files provided in M21-1MR, section I.5.J.48.e.

Denials

Denials of entitlement to benefits rendered by BVA should continue to be processed in accordance with the procedures outlined in M21-1MR, sections I.5.G.33.c and d.

Questions

Questions concerning this fast letter should be e-mailed to VAVBAWAS/CO/21FL.

/S/
Bradley G. Mayes
Director
Compensation & Pension Service