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Filing a new claim before remand is settled...


Kelly Severance
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Question

It's been a little over 2 years since the judge remanded my husband's claim for IU.  In the meantime, he continues to decline.  He is a gulf war veteran and has many of the presumptives.  He filed for these a few years back and was denied.  If we file again, will this hold up the remand further?

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Hi Kelly. I'm not sure; it is the VA you're dealing with. It could depend upon what his claimed disabilities are, what the remands entails (like additional C&P's for further development), and what the new claims are for. It is possible that the remands will result in adding new disabilities as secondaries to the original claim. I think we would have to know what the original claims were, what the remands require, and what new ones he is considering. 

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Ok so a few questions here before I can give some help.

Were the denied conditions apart of the same claim for UI?

Next is service connected for his conditions?  If the conditions are not apart of the current claim then for sure claim these conditions ASAP!

Can you please post the remand minus any personal information?

Reason being there should be no reason you are waiting two year for a remand to be taken care of!  If this is the case then someone has seriously dropped the ball!  If so they have basically forgotten about you and I personally would start shaking down some trees.

My remand took 6 months before the RO even looked at it which from what I could find out is about right.  It then took almost a year to implement the changes for the granted part of my claim.  

I have all of the presumptives from the gulf war and I know how bad it sucks to wake up every day.  It is defiantly a challenge to keep fighting the VA.  

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2 hours ago, Kelly Severance said:

It's been a little over 2 years since the judge remanded my husband's claim for IU.  In the meantime, he continues to decline.  He is a gulf war veteran and has many of the presumptives.  He filed for these a few years back and was denied.  If we file again, will this hold up the remand further?

If your husband is seriously ill, you can file for an advancement on the docket to get a faster decision.  Be forewarned that an advancement does not in anyway means a positive outcome. I have seen an advancement come back as a denial and the veteran had to appeal.  

The Board is required by law to review appeals in docket order unless unusual hardship or “other sufficient cause” has been shown to advance a case on the docket. 38 U.S.C. § 7107(a) and 38 C.F.R. § 20.900(c). If applicable, you may submit brief, but complete, reasons to the Board for advancing your case on the docket, which must include supporting documentation to factually demonstrate reasons for advancement. The following are some examples of unusual hardship or other sufficient causes, along with recommended supporting documentation:

  • Severe financial hardship (bankruptcy petition, home foreclosure notice, homelessness);
  • Serious illness (physician’s statement documenting terminal or grave illness, preferably with clinical findings);
  • Advanced age (defined as 75 years or more);
  • Administrative error (resulting in a significant delay in docketing your appeal)
  • Affected by a natural disaster such as a hurricane, earthquake, or flood (you may submit evidence such as newspaper clippings, pictures, FEMA declarations, etc)

Motions for advancement on the docket, along with supporting documentation, should be submitted to the Board in writing at the address or fax number listed below. Please remember to include your name, the Veteran’s name (if different), Legal Representative (if applicable) and your claim number.


By Mail:Board of Veterans’ Appeals

P.O. Box 27063

Washington, DC 20038

By Fax:844-678-8979 (Toll Free)

 

 

P.S. 2 years waiting on a Remand, I would be calling someone and asking what the heck is going on with my remand.

Edited by pete992
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I agree with Pete, 2 years is too long for a remand.  Get on the phone and start calling.  Start with your VSO or attorney.  Then go to "peggy".  Send an IRIS inquiry (email).  

Docuement all those.  

Call the white house hotline.  

Lastly, if all those are documented and you give them time to answer and VA still does not respond, consider a Writ of Mandamus to compel VA to compliance with the Remand.  

I suggest you file for new issues sooner rather than later.  That is, unless you have too much money and dont need more retro.  Filing later, means you will get benfits later.  For example, if you were awarded 100 percent, then each month you delayed filing will cost you about 3000 dollars depending upon your number of dependents.  How many 3000 dollars can you afford to lose by delaying filing?  For me, the answer is zero.  I would file and make sure it arrived before the end of this month.  (You wont get paid for March, but your benefits could start in April if you file in march.  YOur benefits begin the first day of the month FOLLOWING your effective date.  

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Thanks everyone for responding!  I'll try to answer all questions here.  The remand was part of a partial grant on March 7, 2018.  In this order, the judge granted his (my husbands) request for migraine increase to the maximum (50%).  He remanded his claim for IU.  The remand orders were for the Regional office to obtain medical records for 2 private doctors, readjudicate, and if the result was unfavorable, return to the board.

In April, 2019, the granted portion was settled and we received our first correspondence that the VA was working on the remand.  We sent in all requested documents.  Around October, we began doing inquiries through IRIS, BVA, and white. house hotline to get updates.  Also in October, we received more correspondence requesting another form 21-8940.  Thought that was strange, but we complied.  As it turns out, that letter was apparently just an automatic letter from VA once it realized that criteria for IU had been met and they were doing their "duty to assist" thing.  When we did that, a claim opened in va.gov and ebenefits for increase in all his SC disabilities and IU.  He was sent to 3 C & P's in december.  All favorable.  After 4 weeks, that claim closed.  Weird.  WE called IRIS to find out why,  and they stated that when they realized IU was already on remand, they closed the claim so that adjudication of the remand could continue.  In february 2020, we did another BVA inquiry.  Their response indicated that our remand was pending 730 days and they were forwarding to the atlanta RO for immediate attention.  Atlanta RO responded with some BS about our options for AMA (direct,  higher level review, etc). STUPID!  This is a remand on a legacy appeal!  Our last inquiry was another IRIS phone call.  they stated that it had been sent back to BVA.  

In ebenefits and VA.gov, it still states that it was last updated on march 7, 2018.

So we have been trying to find out what is going on, but have had no luck!

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Like I said before it sounds like you need to get someone else involved. My congressman really helped me!  Try reaching out to anyone you can think of!

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Kelly, you didn't state anything about your husband's health. Does he meet the criteria to advance his claim on the docket? You can call BVA and ask where is your husband's claim on the docket.

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1 hour ago, pete992 said:

Kelly, you didn't state anything about your husband's health. Does he meet the criteria to advance his claim on the docket? You can call BVA and ask where is your husband's claim on the docket.

Pete, 

My husband does not qualify for hardship.  He does not have a terminal illness (Thank the Lord) and is still able to get up and groom himself, but that is about it.  According to va.gov, there are 151, 579 appeals on the docket and he has 18,000 in front of him.  

Another note.....we also contacted our VSO in Atlanta in February.  She stated that the last entry in his file was the partial grant for increased rating on migraines.  Nothing on the remanded portion.

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Well Update:

UPDATE:  My husband just got a call back from White house inquiry just a few minutes ago.  The man stated that a decision had been mailed out from the Atlanta RO this morning and that his TDIU claim had been DENIED!  The man stated that the reason for his denial was that he is currently gainfully employed!!!!!!!  WHAT??? He has not worked in 2 years!  The only thing I can figure out is that he is still listed  as employed by the VA because he applied for FERS disability 2 years ago as well.  Any insights?  I am at a total loss!  Denied FERS, SSDI and TDIU all in the same month!  I am so discouraged!

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Ok so now is not the time to let them get to you.  

Does this put you into a financial hardship?  

So in the letter they are sending back to the judge now they will have to show where he is employed if this is the case.  I am not sure if there is a way to catch it on its way back to the judge?  Has anyone dealt with this?  The Judge will then review what they send back and agree or disagree with the RO.  Typically the judge and their teams are smarter than that and can undo what they mess up.

There is still a bit of hope there I think.  

Did he tell them he has not worked in two years???  I would keep calling them back and see fit they can step in or not.  Again I would get as many people involved as possible "squeaky wheel" and get them to oil it!  

Now is not the time to back off, you need to get some more people in your corner hitting back!  Call your congressman ASAP!  They can step in very quickly and a phone call with your story of your husband!!! will defiantly get them listening.  

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Thanks Shrek!  I really needed that Pep talk!  We have just called his former employer and they are drafting a letter stating that he has not been employed in 2 years.  That should be here by Monday or tuesday.  The SOC should be here about that time as well.  

The white house rep told my husband that he would have (30 or 60 days??, husband does not remember) to send additional documentation before it was sent back to the BVA.

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I have never dealt with UI so this could be part of the process and this may be all you need to fix it I hope! 

I am a boat rocker so I am sure the VA hates me, but they have tried to stop me so many times.  I will never stop and they will keep hearing for a long time!  

Keep fighting!  your husband deserves it!

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Do this in this order:

1.  Send an IRIS email inquiring why your (2 year old remand) has not been completed, and ask for the "status".  Explain its a legacy appeal.  

2.  Call "Peggy" and ask the status, write down the time, date, and who you spoke with as well as their response.  

3.  Call the white house hotline ask them why your remand (where "expiditious treatement") is required, has gone on for 2 years.  

4.  After all this is documented, and you have given them time to respond, consider filing a writ of mandamus to compel VA complaince with the remand order expiditiously, as required by law, or to give you a written decision as to "why" they can not process this claim immediately.  

    Source:  The VA took 3 years to do my remand for tdiu, and you have to keep the pressure on.  "The squeaky wheel gets the grease". Yes, I won, but it took forever.  Delays like this pressure them to award.  In your writ, ask for a "real solution" that the VA has already proven they dont respond to remands.  

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13 minutes ago, broncovet said:

Do this in this order:

1.  Send an IRIS email inquiring why your (2 year old remand) has not been completed, and ask for the "status".  Explain its a legacy appeal.  

2.  Call "Peggy" and ask the status, write down the time, date, and who you spoke with as well as their response.  

3.  Call the white house hotline ask them why your remand (where "expiditious treatement") is required, has gone on for 2 years.  

4.  After all this is documented, and you have given them time to respond, consider filing a writ of mandamus to compel VA complaince with the remand order expiditiously, as required by law, or to give you a written decision as to "why" they can not process this claim immediately.  

    Source:  The VA took 3 years to do my remand for tdiu, and you have to keep the pressure on.  "The squeaky wheel gets the grease". Yes, I won, but it took forever.  Delays like this pressure them to award.  In your writ, ask for a "real solution" that the VA has already proven they dont respond to remands.  

Hey BroncoVet.  You might have missed my earlier comment, but we got a White house return call this morning stating that his remand had been denied and an SOC was mailed today.  We asked "why" it was denied and he said the reason was because he was gainfully employed............ Again...Not true!  

We just called Peggy to see what they said.  She said that an SOC had been mailed on 3/11/20 and should arrive in 10 days.  

I know for a fact that they knew he was medically retired because there is a document in his CFile that we received mysteriously in January where the VA had done a deferred rating form for his TDIU.  It states in the document that "VAMC treatment records indicate the veteran is medically retired from his VA Nursing Job"

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