Cavc Remand To Bva

[ronfradkin]

I appealed my Service Connection claim to the CAVC, argued the case on my own (pro se) and the Court ordered remand to the BVA. The Court order provides that I can submit additional evidence and argument to accompany the remand, but provides no detail about that. I have searched the CAVC rules as well as parts 19 and 20 of the 38 CFR, and the NVLSP Veterans Benefits Manual -- but I can't find any specifics about how or when additional submissions can be made. I phoned the BVA and they tell me they will notify me prior to adjudicating the remand, to let me know about submitting additional material -- but without something in print to back it up (such as court rules or CFR regs), I don't trust what they tell me on the phone.

Do you have any ideas about where else I could look, or who to call for the definitive word on this?

[Berta]

Ron -I just read your case at the CAVC.

Getting a remand back to the BVA is not an easy matter and I commend you for pushing this claim forward.

I see two things here:

"The appellant also argues that the 1971 RO decision was the product of CUE, and he urges the Court to reverse the April 2004 Board decision and order the Secretary to "establish the effective date in 1971."

however:

"Additionally, the Court notes that the Secretary may wish to consider whether it is appropriate to wait to decide the appellant's CUE claim until after the BVA has adjudicated the issue of the finality of the 1971 RO decision. See May v. Nicholson, 19 Vet.App. 310, 317 (2005) (stating that "[t]he sole purpose of a CUE claim is to provide a VA claimant with an opportunity to challenge

a decision that is otherwise final and unappealable.) "

The finality of the decision you cued is in question.

Also the TDIU EED appears to have been moot issue and unchanged by the BVA-

Do I interpet this as you do?

"ORDERED that the April 14, 2004, Board decision is AFFIRMED as to the appellant's TDIU rating, but otherwise VACATED and the matter is REMANDED to the Board for further proceedings consistent with this order. "

By "otherwise vacated" and "remanded " do they mean the CUE issue?

It seems to me that the CUE is something the VA never decided at all and there is anot a final unappealed decision.

However the remand appears to give the BVA the job of deciding if- in fact -the CUE is on a final decision:

"Additionally, the Court notes that the Secretary may wish to consider whether it is appropriate to wait to decide the appellant's CUE claim until after the BVA has adjudicated the issue of the finality of the 1971 RO decision"

'may wish to consider' and 'additionally' - I dont get what the court has in mind here-

Question-did you attempt to ask the VARO for a decision on the CUE? Did you ever file a Writ of Mandamus on the undecided CUE-with the CAVC and the VARO?

I wonder if the BVA will remand the claim back to the VARO:

"In this instance, because the Board lacked jurisdiction on the merits of the appellant's CUE claim, because it previously had not been presented to and adjudicated by the RO, the appropriate course of action for the Board was to refer the matter to the RO for adjudication in the first instance. See 38 U.S.C. 5109A"

To determine what evidence you need is a good question- I need to really look this over again and get back to you here-

I dealt with the BVA ombudsman-have their email addy somewhere when I got a 51 day remand this fall due to legal error.

I have a feeling that whatever evidence you might send would prompt a remand back to the VARO for a decision on the CUE claim-

(VARO tacked on one of my undecided CUEs too when they sent my claim to the BVA-this was one additional point I made in asking for an immediate remand. I wrote directly to the BVA and the ombudsman told me of the remand-actually it all took only about a month-my POA would not help with this at all-

why should anyone wait for 2 years at the BVA only to have the claim remanded anyhow-if the basis for remand is obvious-)

As I see it the CUE is still pending-

thus more can be sent to support it-

The VARO asked my for more evidence on my CUE claims. I sent them links to 5 BVA decisions,similiar as to my CUE scenario, with specific quote from one of them, in the response, also a complete General Counsel Opinion supporting the CUE and also 3 pages of the M21-1 that shows them what they are supposed to do and didnt do in 1998 in a final VARO decision- the basis of the CUE and again I sent them the decision they had erred in, by misapplication of basic VA case law and regs- which I sent too.

My point is -for CUE evidence- it has to be VA legalise-

but then again - they seem to be looking for evidence that the cued decision was final and not appealed.

So by evidence they mean- in my opinion- why is this a CUE and what regs did they break?

There is a lot in this CAVC decision-but only final decisions can be cued.It looks like the VARO simply ignored the CUE issue.

I wonder how the BVA will handle this part:

"Accordingly, the Board decision is inadequate to enable the appellant to understand the precise basis of the Board's decision and to facilitate informed review in this Court, and remand is necessary so the Board may provide an adequate explanation of its

decision. 38 U.S.C. 7104(a); Peyton v. Derwinski, 1 Vet.App. 282, 285- 86 (stating that the Board must include a response to appellant's arguments in the reasons or bases for its decision)"

Ron- I wonder what you and others would think-

what if you wrote to the VARO Director and asked for a prompt decision on the CUE?

These ROs are so snafued that the RO might deny it right away and then maybe the BVA would have jurisdiction?

This is just a suggestion and could be the wrong one- however one thing I sure have learned is to push the regs to the limit and give the VA every possible oppotunity to put their own foot in their mouths.

The VSM confirmed in mail to me-last year- an issue that supports a claim I have had pending there for a long time-

I wrote and effusively thanked the VSM for supporting this specific claim as I considered her statement as evidence in support of the basis for the claim.

Then the VARO itself suddenly filed in August 2006-a Motion to Reconsider a past denied CUE I had at the BVA on this same issue many years ago-the VSM had given me the ammo I needed but then they took on that battle themselves-they had to-

Do you have every single piece of VARO crapola you received since filing the CUE?

Did they in any way suggest in any letter to you that the CUE had been denied or had no merit?

Did this CUE ever fall under the Not well grounded crap of years past?

Are you satisfied with the TDIU EED decision or do you intend to pursue that?

Edited January 2, 2007 by Berta (see edit history)

[Berta]

One more question-

I have handled most of my legal matters Pro Se for decades-

never lost a case-but then I found a real lawyer some years ago and there are many advantages to having a real lawyer-

why did you go Pro Se to the CAVC?

[carlie]

Maybe you can find something on this in M21-1MR. Good luck

with your claim.

carlie

http://www.warms.vba.va.gov/M21_1MR.html

[Berta]

Wait a minute----------

"The appellant was on active duty with the United States Air Force from June 5, 1967, to January 8, 1971. R. at 11. In October 1971, the appellant submitted to a VA regional office (RO) a formal claim for service connection for a "nervous condition." R. at 49-52. The RO issued a rating decision on November 22, 1971, (R. at 54) and on December 27, 1971, sent the appellant a letter informing him of his claim's denial (R. at 465). The appellant did not appeal the 1971 RO decision at the time"

That is a Final decision!

You re-opened in 1995.

Still the 1971 decision there is final and cueable----does anyone else out there agree?

Are they saying the CUE Claim Decision was not final therefore appealable as the main CAVC remand issue

YET

the decision it was filed on was-in fact- final and unappealable?

[Berta]

A few more thoughts-

I printed out the CAVC case and understand this a little more-

Did you formally raise the CUE issue to the Regional Office, prior to adding this to the I-9 you filed?

This might be the main problem here-

An I-9 should only be used for decisions that you are appealing. The VARO must have formal receipt of a CUE claim.

Having said that- however the VBM 2006 edition has an example of a statement they recommend to be put on all I-9s (page 954) and I told Ron Abrams -NVLSP-last week that I followed this to the letter, sticking it into the limited space unde # 9 and he said Good---you have the VBM ?-but might have filed your I-9 before the new VBM came out- (that statement is posted here at hadit somewhere under I-9 info.)

Men and women-it took this vet SEVEN YEARS to get his proper TDIU award and he certainly does not seem to me to be willing to accept any improper VA decision-This CUE is far from over-but I see the jurisdiction lies with the VARO -with a proper filing of the CUE-there-

or an acknowledgement of the CUE by VARO even though it was raised on the I-9 form instead.

Ron- did the VA have, in their constrcutive possession (re: Bell V Derwinski limits ) enough medical evidence in 1971 to award you TDIU?

If so- basis for CUE-

Also did you receive at that time SSA disability for the same claimed condition?

Did you tell the VA this info?

Did they obtain the SSA records at that time? And mention them in the decision?

In 1971 how did they list your disability, did they rate it as NSC, and what DC (diagnostic code) did they use?

Edited January 2, 2007 by Berta (see edit history)

[LarryJ]

"Additionally, the Court notes that the Secretary may wish to consider whether it is appropriate to wait to decide the appellant's CUE claim until after the BVA has adjudicated the issue of the finality of the 1971 RO decision"

This is a nice way that the Court has for telling the Secretary of VA that he might really, REALLY, want to REconsider whether it is appropriate to wait to decide the apellant's CUE claim..............because, if the Secretary decides to wait......then that is ANOTHER CUE.

just sayin....

[Objee]

I appealed my Service Connection claim to the CAVC, argued the case on my own (pro se) and the Court ordered remand to the BVA. The Court order provides that I can submit additional evidence and argument to accompany the remand, but provides no detail about that. I have searched the CAVC rules as well as parts 19 and 20 of the 38 CFR, and the NVLSP Veterans Benefits Manual -- but I can't find any specifics about how or when additional submissions can be made. I phoned the BVA and they tell me they will notify me prior to adjudicating the remand, to let me know about submitting additional material -- but without something in print to back it up (such as court rules or CFR regs), I don't trust what they tell me on the phone.

Do you have any ideas about where else I could look, or who to call for the definitive word on this?

Ron, absent any descriptive limits on evidence and argument, follow Berta's rule to push the law to its limits.

Evidence is medical data, decision letters, etc. Argument is stating how you want them to look at and treat the evidence. Consider the general remand terms as an open hunting license. Just be sure that you present your additional evidence and argument clearly, as simply as possible, in a logical order and that it all pertains directly to the question at hand.

Ralph