Success well it has survived the BVA

[Richard1954]

As to my 10+ years case that was at the BVA, I just this morning checked Ebenefits, and learned that it has been remained back to the regional office for further development... What does this really mean? I think it means in the minimum that my argument to the BVA has survived and the regional office will have to decide how benefits will be awarded. Of course this is wishful thinking , it could also mean that the BVA found merit in my case but something is missing and in the end it could still be denied. This was a claim for retro housebound benefits and a request for a higher rating for my eye damage. I  expected an answer, one way or another, but I  am not happy with the remanded claim , I think I would have preferred a denial at this point because I am so tired of the fight. Because I don't have a letter yet I don't know if one or both issues were remained or if one issue was granted or denied, ( these are the only possibilities). It apparently was decided on 19 Jul , and was exactly 89 days from the time I appeared at the video conference to the day of the remand.  But it sat at the BVA since 19 Jan 2018,  thats just over 6 months.  I will post again once I receive a letter.

[vetquest]

Hang in there.  My last remand was a partial grant.  They gave me benefits the RO had denied and then sent some it back for more exams.  It is difficult to see it remanded after such a long wait.  Now the RO has to make a decision on the remanded portion and then it will be sent back to BVA.  The good news is that it is supposed to be completed with haste.

[Richard1954]

3 hours ago, vetquest said:

  The good news is that it is supposed to be completed with haste.

I'll believe it when I see it!

[broncovet]

Just like everyone else, you have to read the actual decision, not what ebenefits says.  When you get the real BVA decision, let us know and we can help you decipher that.  

I got a BVA decision which was:

1.  Partial Grant

2.  Partial denial

3.  Partial remand.  

     Yes, the decision contained all of these (on different issues, some granted, some denied and one was remandded).  

     In my case, I got retro money (on the granted portion).  

      ONE option:  If one or more issues were denied, you can appeal the denial to the CAVC.  This is a great time to hire an attorney. 

       However, you can not appeal a remand (unless there were also issues which were denied.).  You can not appeal a remand because it is not finally decided.  If its remanded back to the VARO, and the VARO makes a decision, you can appeal that decision.  

        You can appeal (granted or awarded) issues, also, because you can appeal the disability percentage and you can also appeal the effective date.  

       Again, You can not appeal a remanded issue, but you can appeal the rest of the issues decided.  

[Richard1954]

5 hours ago, broncovet said:

Just like everyone else, you have to read the actual decision, not what ebenefits says.  When you get the real BVA decision, let us know and we can help you decipher that.  

I got a BVA decision which was:

1.  Partial Grant

2.  Partial denial

3.  Partial remand.  

     Yes, the decision contained all of these (on different issues, some granted, some denied and one was remandded).  

     In my case, I got retro money (on the granted portion).  

      ONE option:  If one or more issues were denied, you can appeal the denial to the CAVC.  This is a great time to hire an attorney. 

       However, you can not appeal a remand (unless there were also issues which were denied.).  You can not appeal a remand because it is not finally decided.  If its remanded back to the VARO, and the VARO makes a decision, you can appeal that decision.  

        You can appeal (granted or awarded) issues, also, because you can appeal the disability percentage and you can also appeal the effective date.  

       Again, You can not appeal a remanded issue, but you can appeal the rest of the issues decided.  

 I already knew "just like anyone else"  that I will have to read the decision before I can proceed with a course of action.. I have been dealing with the VA and their games since 1986.  I am almost certain of the reasons for the remand,  I made an  new argument,   for entitlement for Housebound  when I attended my BVA conference that wasn't the exact same argument I made to the Regional office, basically, I reevaluated my original argument and decided it need to be expanded.  Changing an argument is one reason the BVA remands.,   Concerning my second issue, on my eyes, I argued that the VA should at least consider rating me under the new rating guidelines.  Again this is also a reason the BVA will remand. The only other reason for a remand would be if the regional office overlooked medical records... and I know that is not the case.

 Plainly put- I initially argued that I should have been awarded housebound in part  because of the bradley v peake decision.  When I learned that the VA does will not approve a claim  retroactively, based on Bradley v peake, I changed my theory of entitlement.  And the ratings for eye ratings changed one month before my conference, so the BVA  could of granted,  or  remand this as well. 

I am under no illusion, the regional office will deny the claim for retro housebound status, and I will again appeal to the BVA. The  Regional office will consider the increased rating for my eye damage under the new rating schedule and unless they rate my eye condition at 60% and  I really doubt they will,  this claim will  end up back at the BVA.. that is unless the BVA actually granted the claim and I just don't know yet. 

In both instances I KNOW that I have to wait  just like anyone else  until I receive the BVA decison before I can decide on any course of action. But one thing I do know before I even receive the letter, I will not hire a lawyer. I have always worked my own claims and I have done a really good job ( if I do say so myself) up until now, and  at this point my claim is still alive.... even thou remanded... 

When I made my post.. I was just spouting off steam.... but I almost think I would have been happier if  it was denied.. I am rather tired of the fight... 10.5 years is a long time.....and at my age I don't really need the aggravation.  

All I am trying to do is get a 60% rating for my eyes,  to get another 1/2 step increase in my aid and attendance which would put me at M. And of course I am trying to get retro active housebound for a 6 year period... that would net me $18 K if approved.... 

I am already at 100%  just for my lungs, 

 I have additional ratings of 60%, 50%, 40%, 30% ,and 6 - 10% ratings....( they have rated me seperately  for asthma/copd/sleep apnea , but in the end  I only get the one  combined rating of 100% due to home oxygen) 

Anyway even If I lose the claims,... there are veterans a lot worse off than me......

I even have a TDIU grant for a separate issue.  But that doesn't help me gain anything in SMC's at this stage.

I believe my claims are valid or I would not have opened them,  now it looks like I will just have to wait a year or three longer..... to get an answer. 

 

 

 

 

 

 

[broncovet]

Richard

Congratulations on your success!!

    Like yourself, I am at the BVA seeking SMC S.   For my arguements, I used Howell.

https://asknod.org/2014/08/25/cavc-howell-v-nicholson-what-smc-s-really-says/  In a nutshell Howell suggests that congress intended SMC S (housebound) for  Vets who cant leave the home FOR WORK, while VA regurarly misinterprets this to mean Vets can leave the home at all.  

    I noticed that VA has taken notice of Howell, and some of the VA propoganda (aka training) has made a reference to Howell.  

    The VA seems to deliberately "raise the bar" higher than "congress intended" so that Vets dont get SMC S until/unless they cant leave their home at all.  

    NVLSP's take on SMC http://www.purpleheart.org/ServiceProgram/Training2012/10-M- SMC final.pdf

    I will comment, here, as to why I hired an attorney after a BVA denial.  Like yourself, I have fought with VA for a VERY long time.  There is no risk, in my opinion, to hiring an attorney after a BVA denial, because, if you lose you pay the attorney nothing.  Even if you win, however, at the CAVC level, the attorney fees are generally paid by EAJA.  So, since EAJA pays the fees, why not take advantage of the services of a professional?  

Edited July 30, 2018 by broncovet