BVA Remand decision question

[raidertone]

A lil background first. I've had an ongoing appeal with 5 medical issues since 2004. It was remanded and new c&ps were done 6 months ago.

I got an award letter today for 1 of the 5 issues. The letter only addressed the 1 issue and did not make reference to the other 4.

So my question is if that's normal? Will I be receiving separate letters for the other issues? Thanks in advance.

[vetquest]

I am going to say that does not sound normal.  Usually you get an SOC which describes all of your conditions and what was awarded and what was not.  Have you received any monies into your bank account?  One would hope that your SOC is coming.

[broncovet]

Unfortunately, this happens "way, way, too often".  This is one method VA does to ensure Veterans are "stuck on the hamster wheel".  

Years ago, in a CAVC case, the CAVC decided that, when 1 issue is decided, the other issues are "deemed denied" and the appeal period starts to run.  More recent CAVC cases have greatly weakened this position, saying that its only deemed denied, when the Veteran can determine its been deemed denied.  (Huh???)

This Very bad CAVC decision has hurt Veterans tremendously.  It flies in the face of 38 cfr 3.103, where Veterans are entitled to a written decision.  So, now, the law stands that "Veterans are entitled to a written decision ONLY IF the judge decides to give them one."

My advice is to appeal all the deemed denials, to presere your effective date.  But, first, try to find out if the other appeals are pending, such as if your decision says they are "deferred".  

A writ of mandamus, to compel the VA to comply with 38 cfr 3.103 is also an option.  

VA has the option of whether to combine claims or "bifurcate" them.  (seperate).  I can see where this might be in the Vets best interest sometimes.  Example:  Lets say you have 5 claims, and one of them has all the evidence to render a decision.  However, the other 4 are hopelessly mired in red tape, such as difficulty in getting your records.  

You should consider how the (awarded) claims are related to those that were not adjuticated.  In other words, did the same doctor render an opinion in them all?  Or were there 5 different docs?  

In the event that VA has all the evidence to render a decision on 1 claim, and is missing critical information on the other 4, then the proper procedure is to award 1 claim, and "defer" the others until said evidence can be obtained.  

Instead, the VA "blows off" the Veterans 4 claims, leaving the Vet on a hamster wheel for decades.  This is error on VA's part, imho CUE error.  However, its not really cue because not rendering a decision on x date is not outcome determinative, because you can not predetermine that a decision on the other 4 claims would result in additional benefits.  

Edited November 7, 2018 by broncovet

[Berta]

This does sound odd-

I wonder about this too:

"The same Dr did 3 exams 6 months ago." I wonder if this doctor had any expertise in any of those disabilities.

Have you obtained the C & P exam results to see if any of them were favorable?

I think you should file an IRIS inquery:

Go to https://www.va.gov/

They are touting their new web site. 

Preview the New VA.gov—Built with Veterans, for Veterans

We're making some improvements to VA.gov. Our new site offers one place to access all VA benefits and health care services. You can sign in with your My HealtheVet, DS Logon, or ID.me account to track your claims, refill your prescriptions, and more.

We invite you to try out the new VA.gov before it officially launches."

Click on the Contact US thing in the upper Right of the site page, then click on Ask a Qusstion, and they will direct you to IRIS.

You will be asked a few more questions, such as the RO you deal with etc, and you can ask them what happened to the other issues you had pending.

I always suggest asking for an email reply instead of phone reply ( so that you have hard copy of what they say)

 

 

 

[Berta]

OH-good---- Deferred is far better then denied ...or ignored.

[raidertone]

3 hours ago, vetquest said:

I am going to say that does not sound normal.  Usually you get an SOC which describes all of your conditions and what was awarded and what was not.  Have you received any monies into your bank account?  One would hope that your SOC is coming.

Thanks vetquest. Yeah I thought that was weird too. Was hoping to see all isues adressed at once.

No money they just bumped my rating up 10%.

[raidertone]

4 hours ago, broncovet said:

Unfortunately, this happens "way, way, too often".  This is one method VA does to ensure Veterans are "stuck on the hamster wheel".  

Years ago, in a CAVC case, the CAVC decided that, when 1 issue is decided, the other issues are "deemed denied" and the appeal period starts to run.  More recent CAVC cases have greatly weakened this position, saying that its only deemed denied, when the Veteran can determine its been deemed denied.  (Huh???)

This Very bad CAVC decision has hurt Veterans tremendously.  It flies in the face of 38 cfr 3.103, where Veterans are entitled to a written decision.  So, now, the law stands that "Veterans are entitled to a written decision ONLY IF the judge decides to give them one."

My advice is to appeal all the deemed denials, to presere your effective date.  But, first, try to find out if the other appeals are pending, such as if your decision says they are "deferred".  

A writ of mandamus, to compel the VA to comply with 38 cfr 3.103 is also an option.  

VA has the option of whether to combine claims or "bifurcate" them.  (seperate).  I can see where this might be in the Vets best interest sometimes.  Example:  Lets say you have 5 claims, and one of them has all the evidence to render a decision.  However, the other 4 are hopelessly mired in red tape, such as difficulty in getting your records.  

You should consider how the (awarded) claims are related to those that were not adjuticated.  In other words, did the same doctor render an opinion in them all?  Or were there 5 different docs?  

In the event that VA has all the evidence to render a decision on 1 claim, and is missing critical information on the other 4, then the proper procedure is to award 1 claim, and "defer" the others until said evidence can be obtained.  

Instead, the VA "blows off" the Veterans 4 claims, leaving the Vet on a hamster wheel for decades.  This is error on VA's part, imho CUE error.  However, its not really cue because not rendering a decision on x date is not outcome determinative, because you can not predetermine that a decision on the other 4 claims would result in additional benefits.  

Thanks broncovet. I'm going to talk to my vet service rep later today.

The same Dr did 3 exams 6 months ago. This letter only addressed one specific issue.

As a matter of fact, this is the final paragraph on the letter: "This rating decision represents a full and final determination of this issue on appeal. As such, this issue is considered resolved in full."