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Sailorman

Received BVA decision

Question

Good afternoon! 

I received the BBE from the BVA and all of my contentions were remanded by the BVA Judge.  I’m fine with the remand; however, I believe the judge made an error writing my decision and I wanted to pick some brains. 

Two of my contentions, my right and left ankles were on appeal for a higher rating of 10 percent each.  The judge remanded both ankles for and entitlement to initial rating in excess of 20 percent each. 

I wonder if the 20 percent is a typo or if the judge is directing the RO to begin the rating at 20 percent after the C&Ps.  Have anyone seen this type of decision before?

Thank you!

Edited by Sailorman

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Is it possible you can post the remand?  Redacted of course.  It sounds interesting and there are some folks here with a lot of knowledge.

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Thanks where are they at? This site used to be saturated with knowledgeable people. 

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This is kinda the trouble with Remands:  Its a "round trip ticket" to the hamster wheel.  As far as I know, the Veterans claim can be remanded, then the VARO denies, the Veteran appeals, the BVA remands again, and again, and again...just like the hamster wheel...where its spinning to fast to get off the wheel.  

Unfortuantely, you can not appeal a remand...you have no choice but to wait until VARO gets a "round tuit", and maybe decides to implement this remand, that is, to render a new decision.  Yes, you can appeal a denial, disability percentage, or effective date on any finally adjuticated decision.  

The good part about remands is this often means you can submit "new and material evidence" (38 cfr 3.156 b) and it will be effective "at the beginning of the appeal period."  THIS IS HUGE.  Example:

You get a remand on the two ankle issues.   You get an IMO doctor to show that the criteria more closely approximates 50 percent ratings for each.  You submit this IMO opinion, as N and m evidence, AND THE IMO DOCTOR MAKES IT CLEAR that your disability BEGAN (when you first applied).  This means, if awarded, you should get the earliest effective date, and you dont have to meet the "cue" criteria!!!

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23 minutes ago, broncovet said:

Unfortuantely, you can not appeal a remand...you have no choice but to wait until VARO gets a "round tuit", and maybe decides to implement this remand, that is, to render a new decision.  Yes, you can appeal a denial, disability percentage, or effective date on any finally adjuticated decision.  

 

You can appeal to the Federal Court of Appeals for your district under three circumstances.  Clear and unmistakable error, arbitrary and capricious action (that hamster wheel if the Agency of Original essentially makes the same denial), and failure to assist if as in my case the VA Health Division didn't supply repeatedly requested evidence (such as radiographic film or other data upon which reports have been made without an etiology opinion).  Actually that third falls under the second but I purposely stated it as a third to demonstrate what arbitrary and capricious acts look like.

Comer v Peake:  "We have jurisdiction pursuant to 38
U.S.C. § 7292."

Cook v. Principi, 318 F.3d 1334 (Fed. Cir., 2002) “There are, however, two statutory exceptions to the rule of finality. First, pursuant to 38 U.S.C. § 5108, the Secretary must reopen a claim "f new and material evidence [regarding the claim] is presented or secured." Second, a decision "is subject to revision on the grounds of clear and unmistakable error." 38 U.S.C. §§ 5109A (decision by the Secretary) & 7111 (decision by the Board). These are the only statutory exceptions to the finality of VA decisions.”

It takes a $500.00 filing fee or a Forma Paupers claim to file a "Petition to Review" at the Federal Court of Appeals.  The administrative decision is supposed to be a finale decision but the "hamster wheel" provides the arbitrary and capricious mode to Petition a Review of an Agency Decision.

Attached are two Petitions I filed with the 10th Circuit, the Clerk's Orders in response, and my responses in draft form to date to the Clerk's Orders.

Just because I filed and responded to the Clerk's Orders doesn't mean it will get a hearing before the Court.  Have to wait to see what the Respondent comes up with in response to the Orders and then reply to that searching their case citations for opposing citations and relying upon Section 4 of the 14 Amendment, the 5th Amendment holding that "Time of War" and "Public Danger" means the inability of the Courts in their Jurisdictions cannot function not "on active duty" as has been held previously under the Article I citation without seeing Article 5 as limiting the inability to get a 7th Amendment District Court Jury Trier of Fact to get off that hamster wheel.

I'm delaying filing although I'm almost finished so that the Respondents won't have my Briefs to work from for their initial required Briefs.

As you can see, I'm arguing finality from my age of 77 and "arbitrary and capricious acts" depriving me of a prompt access to the CAVC for a decision at that level which could be then appealed to the FCA if necessary.  I'll try to remember to post on this thread the results as they come in.

20180914 FILED BCNR pet with clerk ltr.pdf

20180914 FILED BVA review c ltr.pdf

20180917 10th Order BCNR review.pdf

20180918 Clerk Order BVA review.pdf

20181001 10th Brief review BCNR tolling.pdf

20181001 Brief BVA 20170511.wbk.pdf

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Thanks a million gentleman. You left me a lot to research. I’m beginning now. I truly appreciate both of your assistance. 

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