Appeals and Decisions Question

[JFizzle]

Question about the rating and decision process on remands, and my apologies for any inconvenience trying to understand the remand process.

When the remand is sent from the BVA to the RO with specific instructions, can the RO make a favorable decision and give a rating on a previously denied claim (remand) if they see fit upon review of the case and file?

[Buck52]

If an appeal was certified to BVA and additional evidence was subsequently received, the Regional Office had to either obtain a waiver of jurisdiction from the Veteran or his Representative, or the appeal had to be removed from certified status and another SSOC issued.  Following the 30 day reply period, if no additional evidence was added to the claims file, the appeal could be re-certified to BVA.

This is the stage where many delays occurred because many Veterans have multiple appeals pending in various stages of the appeals process.  Additionally, they will also have new claims pending in various stages of initial development.  Therefore, every time additional evidence was added to the claims file, the Regional Office Appeals Team had to review all of the appeals to determine if an SSOC was necessary.  If so, then any appeals already certified to BVA had to be removed from certified status, and the process continued to repeat itself until such time that all evidence in the claims file had been considered in a decision at the Regional Office level.  It was only then that we could physically transfer the file to BVA jurisdiction.

Effective February 2, 2013, Section 501 (Automatic waiver of agency of original jurisdiction review of new evidence) of Public Law 112-154 took effect.  This change in law established an automatic waiver of Regional Office (agency of original jurisdiction) review of evidence received after receipt of the substantive appeal.  The evidence is subject to initial review by BVA unless the appellant specifically requests, in writing, initial review by the Regional Office

[flores97]

Jfizzle,  yes, when the BVA remands an appeal back to the RO, the Regional Office is supposed to follow BVAs instructions, which is usually obtaining missing strs, additional medical treatment evidence, another medical opinion, or sometimes orderering additional c&p exams. After all BVA instructions have been completed, the RO is then supposed to look at your claims again to see if they can be rated, and they do sometimes rate remanded claims, if they cannot rate they will send the appeal packet back to BVA for readjudication.

[Berta]

Thanks for making that point Buck on the Automatic Waiver..I hope all claimants are aware of that.

"When the remand is sent from the BVA to the RO with specific instructions, can the RO make a favorable decision and give a rating on a previously denied claim (remand) if they see fit upon review of the case and file? "

Yes they can but it all depends on what the remand called for and how they determined the results of what the remand was for.

I had a case at the BVA years ago and I asked them to remand the appeal because my VCAA rights were violated.

I had 2 IMOs from Dr Bash and a freeby from a former VA Neuro. VA had 2 opinions against the claim.

BVA remanded instead for a cardiologist's opinion.

I was thrilled because my documented evidence ( I made sure the BVA had it all) would support a favorable opinion from a cardiologist.

I got a PA's opinion instead. The PA did all they could to deny the claim but I sent a rebuttal to the BVA, pointing out the medical errors and stating how it was too speculative and was definitely not the cardio opinion the BVA remanded for.

BVA agreed and also agreed that my VCAA rights had been violated but that I had overcome that error with evidence, and they awarded.

Follow the remand if you can. If it requires some record they asked the VA to obtain ,try to obtain it yourself.

If the remand calls for a C & P done by a specialist, such as a cardio etc but you get a C & P from a PA or nurse, obviously they do not have the credentials of a cardiologist and you can rebutt the exam as being too speculative.

It all depends on what the remand calls for and how the VARO  will interpret the findings.