BVA Granted Appeals and Remand

[Jamezam]

My question is this, will the VARO implement the grant of service connection for headaches and award my increased rating and an earlier effective date first (which the judge stated to the RO) or will the VARO address my TDIU claim and the grants together? Which came first the chicken or the egg? Also, what is the shortest and longest time I can expect for grants and TDIU award/denial. I was just approved fully-favorable for SSDI in October 2018, so hopefully TDIU will be awarded as well. Thanks fellow Veterans...

The BVA Judge stated "Take [the] necessary action to implement the grant of service connection for headaches and the award of increased rating and earlier effective date for a dorsolumbar spine disability, as above." "After completion of the above, adjudicate the issue of entitlement to TDIU. If the benefit sought remains denied, furnish a supplemental statement of the case and then return the appeal to the Board, if otherwise in order."

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Edited February 27, 2020 by Jamezam
Update to images

[Jamezam]

vetquest,

I sure hope they awarded your TDIU back to when you first applied. Reading your story and 100's of other Veterans stories, it is absolutely outrageous how we're treated. Did you go through the BVA process or just filed for TDIU? I hoping, but have zero faith, that the VARO will obey what the BVA judge told them to do. Even though I've been fighting the VA for 30+ years now, and my BVA decision is recent, I'm keeping my fingers crossed that they 1. do the right thing the first time. 2. I can just move on with my life! BTW, I was approved for SSDI which is different than SSI. Thanks for your input...

[Jamezam]

1 hour ago, broncovet said:

Great post, Jamezam.  

   I particularly liked your citation to Harvey, which seemed to answer the question of "What happens when the VARO delays the Board decision implementation", and what "expiditious treatment" means.  

    I guess the court thinks that 2 years is "expiditious treatment".  While I dont agree 2 years is expiditious, at least they used "some number", and did not leave it up to the agency to decide what "expiditious" means.  

    I recall reading decisions in the past, where the Veteran petioned the court based on delays, the court seemed to decline to answer "how long of a delay" is worthy of court intervention.  The court seemed to leave the door wide open and even mimic the VA's tired excuse, "well every claim is different, so we cant tell you how long it will take to complete your claim".  

    By "nailing the VA down" to a time frame, it opens the door for "tweeking" this time frame.  

    When I complained to the CAVC about a 5 year delay, the secretary answered with a similar non committal rhetoric:

"While we understand the Veterans frustration with the delays, each claim is different so, in fairness to all Veterans, the VA can not put a time limit on how long it takes to process a claim"...(paraphrasing).  

broncovet,

What a load of crap. Two things I hate, "thank you for your service", because they're told to say that. "each claim is different, in fairness to all Veterans..." I'm glad I came across that case yesterday, because now a precedent has been created by the court. I'm with you, two years in not expeditious and if enough Veterans raise hell about the lack of expeditious treatment, maybe something will change.

My plan, if I end up waiting close to two years, is to file a writ, and point out to the court that the use of the word "expeditious" in the treatment of BVA decision's is a false representation implying that the VA will adjudicate grants and remands, etc. much quicker than the normal VARO process.

Found this in a Veterans Law Review, even though it's in reference to health care, the BVA said this: "Although the BVA and Regional Offices are currently required to provide “expeditious treatment” for remanded claims, such a directive has thus far proven ineffective.200 To address this shortcoming, the VA should also adopt deadlines for processing times at each level of its adjudicatory system. Note: 200 See Riley, supra note 95, at 19-20 (discussing the need for Congressional intervention to instruct the CAVC to impose “deadlines” by which to complete remand directives).

Edited February 2, 2019 by Jamezam

[vetquest]

Jamezam, they awarded TDIU to 2013, not 2007, the original date of appeal.  They used the tired line that I was not disabled until the last C&P exam in 2013.  I had to go back to BVA to get it awarded to 2007.  The VA has many ruses that they will use to prevent your receiving the correct effective date.  And yes thank you for your service rings very hollow when the doctor that says it does a number on your C&P.

Edited February 2, 2019 by vetquest

[Jamezam]

3.8. Claim Backlogs and Delays This is the ultimate truth, the VA just doesn't care about Veterans, and you have to choose your battle plans correctly to prevail against the systematic abuse of us Veterans...

It is no secret that VA continues to be plagued by a large backlog of claims. Despite repeated promises and commitments for improvement, VA's backlog has actually grown significantly over the last few years. For example, by VA's own accounting, the Secretary's stated goal of 125 days to reach an initial decision has gone from being met in approximately 2 out of 3 claims to only 1 in 3 claims. Worse yet, the average time for a decision by the Board of Veterans' Appeals is approaching 3 years and the time for a decision to return from an appeal to the Court can be 7 or 8 years.

There is no such thing as a "financial hardship" or "hardship" claim or any other shortcut around the backlog for initial or reopened claims. Despite widespread misinformation, there is little, if anything, that a veteran can do to "speed up" his or her initial or reopened claim at the regional office level. This does not mean that some raters will not take such circumstances into consideration if they know the claimant's situation. But because severe financial circumstances, a terminal illness, or other hardships do not qualify a claimant for any special treatment, a claimant cannot demand such treatment. The only exception is for the claims of veterans that are or on the verge of becoming homeless. In such cases, the Secretary has directed expedited treatment of claims. Even this action is not a legal requirement, only a VA internal priority.

The Board does allow "advancement on the docket" of appeals from claimants that are "seriously ill" or "under severe financial hardship." The Board will also consider motions from veterans over 75 years of age. Whatever the reason, veterans seeking to advance on the Board's docket need to be very specific about why they should be able to do so and submit supporting evidence (such as a doctor's statement or foreclosure notice) because many veterans are ill or are in financial difficulty and everyone cannot be given priority by the Board.

Other than filing a motion for advancement with the Board, attempting to "put pressure" on a VA office, the Board, or the Court is not only a waste of time, it can result in additional delay because the C-file may be removed from the line waiting for decision so that VA can respond to such attempts. This includes Congressional "inquiries," which are often just exchanges of form letters.

There is slightly better news for claims remanded from the Board and the Court. VA is required by law to provide "expeditious treatment" of remanded claims. The Court has made clear that remands must receive higher priority development than other claims. How long VA can take to resolve a remanded claim under the "expeditious treatment" rule is not clear, but claimants can at least point to this requirement in dealing with delays in remanded claims and, if necessary, seek a Court order for VA to make a decision.

In all cases, the best thing a claimant can do is to quickly respond to each VA request with clear and to the point responses do not give VA any reason to delay making a determination.

The Secretary has a statutory obligation to expeditiously process remands from this Court.  Thus, not only must the Secretary ensure that he completes the Court-ordered task, he must do so in an expeditious manner.  38 U.S.C. §§ 5109B, 7112.  Excessive delays in the processing of remands ordered by the Court cannot help but sap public confidence and impugn the Court's dignity, as from the outside it invariably appears that VA is ignoring the valid mandates of an institution that has express authority over it in matters related to veterans benefits.  See Erspamer v. Derwinski, 1 Vet. App. 3 (1990) (discussing delay in administrative action and public confidence). 

Furthermore, the Secretary's obligation to process Court remands expeditiously is integral to this Court's jurisdictional authority to remedy unreasonable delays in the processing of veterans' claims.  See Vietnam Veterans of America v. Shinseki, 599 F.3d 654, 659660 (D.C. Cir. 2010) (suggesting that the U.S. Court of Appeals for Veterans Claims may have exclusive jurisdiction over claims concerning unreasonable delays in processing); see also Ribaudo v. Nicholson, 20 Vet. App. 552, 557 (2007) ("With respect to matters relating to veterans-benefits claims, however, Congress adopted a very different approach to judicial review.  A decision of the Board can only be appealed to a single venuethis Court." (citing 38 U.S.C. § 7252(a))).  Therefore, failure by the Secretary to comply with his obligation to process Court remands expeditiously, is the same as noncompliance with the remand order itself, even if the Secretary eventually complies with the substance of the order.  Harvey v. Shinseki, 24 Vet. App. 284, 288 (2011).

 "While there is no absolute definition of what is reasonable time, we know that it may encompass 'months, occasionally a year or two, but not several years or a decade.'" Community Nutrition Institute v. Young, 773 F.2d 1356, 1361 (D.C. Cir. 1985) (quoting MCI Communications Corp. v. FCC, 627 F.2d 322, 340 (D.C. Cir. 1980).  Erspamer v. Derwinski, 1 Vet. App. 3, 10 (1990).  When delay is alleged as the basis for a petition for writ of mandamus, a clear and indisputable right to the writ does not exist unless the petitioner demonstrates that the alleged delay is so extraordinary, given the demand on and resources of the Secretary, that it is equivalent to an arbitrary refusal to act.  Compare Costanza v. West, 12 Vet. App. 133, 134 (1999) (per curiam order) (addressing an 11month delay and finding the petitioner did not demonstrate that he lacked alternative means of relief when he did not undertake to resolve delay prior to filing the petition), with Erspamer v. Derwinski, 1 Vet. App. 3, 11 (1990) (addressing a three-year delay and finding petitioner had no adequate alternative means for relief when she contacted the regional office more than 30 times before filing her petition with the Court).

[Jamezam]

vetquest, you are absolutely correct, "the VA has may ruses..." That's why I use the analogy of the VA being an insurance company. Dear Veteran, serve your country in peacetime or war and we will take care of you, if you should sustain an injury during your service. Dear insured, pay us xyz amount monthly and we'll take care of you or your property if something happens. In both cases they do everything they can to dissuade you from filing a claim, and then they do everything they can to deny, deny, until you die!

When I filed my first claim in 1988, I naively figured the VA would do the right thing, especially since I had 36 months of well documented medical evidence in my military health file. Over the past 30+ years, many people who've heard my story have said "don't give up". To which I reply, "the VA will never beat me". Well I was 21 when I got out of the Army, now I'm 52, and can't help but wonder, if the VA may beat me after all!

[vetquest]

Jamezam, I had seven and seven months of service when I was declared medically unfit due to injuries incurred in the line of duty.  My first discharge, I have six of them, was at the convenience of the government.  It was five years before the Military came back on a BCNR case and declared me medically retired.  The VA turned their back on me and declared me to be mentally ill, not service connected.  After I was retired they awarded me 50%.  I worked for 35 years and when I lost my job to my disability becoming increasingly serious It took ten years to straighten that out.

No, they have not beat you yet if you are still trying.  They win when we get fed up and quit.

Edited February 2, 2019 by vetquest