Where to find this VA mandate

[jamescripps2]

I am sure that I have read this either in the 38 C.F.R or the 38 U.S.C.   A  mandate, that where there is an option, or choice, the VA is to choose the most favorable option in the best interest  of the veteran. Where can I find this mandate? I am looking in the C.F.R but I have not found it yet.

Thanks

[jamescripps2]

Wow! I never expected so many people to respond in trying to help me with to my dilemma. I have read the BOD rule a thousand times over a ten year period.  I just did not give any weight to the phrase," OR ANY OTHER POINT". That is just what I needed guys. Thanks ever so much.

I asked for a DRO denovo review. It has only been five months since the date of the decision in question so the NOD will be timely filed. The RO says the quickest avenue is to reopen the claim. I don't want to do anything that will cause me to loose the considerable amount of four years retro, no matter how long it takes. Do I go with my gut feeling and request  a review or reopen as the RO suggest?

[rwskitch]

...I may be wrong, but I thought that Berta once stated something like, 'all means of adjudication must be exhausted before one does a 'CUE.'

[jamescripps2]

Now I have stepped in it for sure!!!!. And it is back to the hamster wheel for me!

An excerpt from my NOD.

Ultimately, I am in need of A&A due to diabetes, the underlying cause of all of my many service connected disabilities except for chloracne. Justifiably, in order to maximize my benefits and grant A&A, if need be, the diabetes should be reconsidered on an extra-scheduler basis and rated as 100% P&T due to the level of functional impairment it has created in my overall general medical condition,  rendering me not only unemployable, but also useless.  (38 CFR 4.10)

 

 

Edited January 22, 2016 by jamescripps2

[Berta]

Rwskitch...I think you mean this....if a veteran files a Petition (Writ) of Mandamus with the CAVC, they must have exhausted all avenues of Administration Appeal first .

[broncovet]

Yes.  Berta is correct.  A writ is not a substitute for an appeal.  If you have an issue in appeal, then your writ will pretty much be denied automatically, pending the appealate review.    To get your writ, you would have had to have exhausted all other means.  

It also means you really need to send a "notice of intent to file a writ" to the RO, and state why to give them an opportunity to fix your problem without using up precious judicial resources. (Judges time).  

 

If the RO igonores your "intent to file a writ", and does not address your issue(s) that you bring up in appeals, then you have a basis for a writ.  

It is extremely rare when a writ is granted.  Most years have "0" writs granted.  I am only aware of ONe writ granted.  However, the procedure is you file a writ, and it stirs up a hornets nest of activity at your RO if the judge asks the RO to respond to the claimants writ.  

When the judge asks the RO to respond, it means that the claimant makes a point worthy of a response.  If the judge thinks the claimant is all wet, he can just dismiss the Writ without a VA response.  

Both Alex and I have filed Writ's, and both resulted in the RO awarding benefits, but both were dismissed.   Basically, the RO says, "Your honor, we have fixed the claimants problem (and awarded benefits), now please dismiss the writ".  

Example follows:

WILLIAM V. BACHSTET, PETITIONER, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, RESPONDENT. Before HAGEL, Judge. O R D E R Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. On March 12, 2013, William V. Bachstet, who is self-represented, filed a petition for extraordinary relief in the nature of a writ of mandamus. According to Mr. Bachstet, on March 28, 2011, he filed a Notice of Disagreement with a January 2011 VA regional office decision that awarded him benefits for post-traumatic stress disorder, assigning a disability rating of 30%, and denied benefits for a lung condition. He requested review by a decision review officer. Along with this petition, Mr. Bachstet submitted copies of January 3, January 24, and February 11, 2013, letters to VA inquiring about the status of his claims and requesting that VA issue a decision by the decision review officer. Despite these requests, Mr. Bachstet had not received a response from VA and requested that the Court order VA to issue a decision. On April 14, 2013, the Court ordered the Secretary to respond to Mr. Bachstet's petition. On May 13, 2013, the Secretary filed his response, indicating that the decision review officer issued his decision on April 30, 2013. The Secretary appended a copy of the decision review officer's decision to his response. This Court adheres to the case-or-controversy jurisdictional restraints provided for in Article III of the U.S. Constitution. See Mokal v. Derwinski, 1 Vet.App. 12, 13-15 (1990). When the relief requested in a petition has been obtained, the appropriate course of action is for the Court to dismiss the petition as moot. See Thomas v. Brown, 9 Vet.App. 269, 270-71 (1996) (per curiam order). Because Mr. Bachstet has obtained the reliefsought in his petition, a decision from a decision review officer, the Court will dismiss his petition as moot. Upon consideration of the foregoing it is ORDERED that Mr. Bachstet's petition for writ of mandamus is DISMISSED as moot. DATED: May 24, 2013 BY THE COURT: /s/ Lawrence B. Hagel LAWRENCE B. HAGEL Judge

Edited January 22, 2016 by broncovet

[Buck52]

broncovet,

If the judge dismisses the writ...does the veteran keep the benefits awarded ?

''Both Alex and I have filed Writ's, and both resulted in the RO awarding benefits, but both were dismissed.   Basically, the RO says, "Your honor, we have fixed the claimants problem (and awarded benefits), now please dismiss the writ".  

if yes  then the writ is basically used for the adjudication of the claim...when the claim should have been awarded without having the veteran to file the writ.

sounds like a waist of time when the claim should have been awarded before the filing of the writ, unless the intent to file the writ was requested & got the ball rolling at the RO.

 

........Buck