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Jangs1963
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Question

On 02/28/18 I received a decision from VA on my elbow issue(denied). On 02/19/19 I filed an NOD but in the meantime, I call 800 and they asked if I received SOC. I said no can you send again? Still did not receive and called back and asked to fax it to me. The SOC was dated 01/07/19. I had about 5 days left of the 90 days to respond.  So, I wrote my statement and filed a V9. Okay so now it is in appeal stage.  All of a sudden on va.gov, the VA added ankylosis and somewhat opens a new claim file. indicating “we received your NOD and a RO is reviewing.” Fast forward, on 02/14/20, I receive a decision from judge remanding my elbow appeal. On 03/03/20 , I receive a decision from the RO indicating that I did not submit my NOD in a timely manner. When I called the person has no idea why I received the decision. My elbow issue has been on appeal since 02/19 . The decision I received said I could file a V9 for appeal. I don’t understand bc my elbow issue was on appeal and was just remanded back.  Does this make any sense? When I do look on va.gov or ebenefits, there is no indication of a decision being sent. It just indicates under review. When I called the girl said it’s showing it’s under review. I just don’t want to miss anything. 

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Sounds like the Hoodwinked.  So their decision has to go back to the Judge and they will review their decision.  Can you post that decision here from the RO?  As they should have stated dates to confirm you did not meet the time frame?  

Also how did you put in your NOD?  Electronically?  VOS?  Fax?  Any trail at all?

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Yes, this does sounds to be typical of VA.  Send an Iris Inquiry and get something in writing about this mess. I don't like phone conversations because I know I will forget and Peggy will say just about anything to get you off the phone. These Iris Inquiries can be very, very slow. Make sure you keep a copy of your BVA remand and include that in your Inquiry by stating the date and Citation Number of your remand.

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Feb. 19, 2019 is 4 days after RAMP (now called AMA) became mandantory.  So you dont get a SOC.  That was for legacy appeals.  More here:

https://benefits.va.gov/benefits/appeals-ramp.asp

Everything was "fubar" in the transition period.  You said a SOC was issued in January, that's probably because they tried to get them all out before Feb. 15.  

My opinion:  This is gonna make it rough for you.  My suggestion:  

"Probably" apply again, then fight the effective date if they dont grant it the date you first applied.  OR, in the alternative, get an attorney.  

You are gonna face difficuly overcoming finality.  Exception:  "IF" you have new and relevant "service records" under 38 CFR 3.156 C, you should be able to reopen this.  

Edited by broncovet
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But doesn’t the RO have to address the judges remand?the SOC was dated January 7, 2019. I never received it until the end of March. That is why I filed the 9 to appeal.  Timely filed the NOD. But, when I received the SOC , I just figured appeal. 

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Yes.  The VA must comply with the BVA remand order.  In the event that VA fails to comply with the BVA remand order, then there are things you can do.  

But, before I go there, did the VARO decision "address" the remand?  ON at least one occassion, the VA supposedly complied with the remand order, but did not.  

Mine was a remand for 4.16b (extra schedular tdiu) consideration.  It took me a while, but I finally was able to force the VA to comply with the remand order.  

My BVA decision was very long, and basically the VARO did not read it and did not fully comply.  However, I pressured them into compliance, had I not done that, the VARO happily would be in non complaince with the remand order.  

The VA gets away with lots of stuff simply because they can.  Veterans often dont know, or dont care to hold them in compliance.  

Its your claim, and your money, and, you will be the one who needs to hold them to complaince.  If they can get away with non compliance, they will.  

If the VA is pulling this cra@@@, then call the white house hotline, and ask them why VARO has not complied with the remand order, and has not adjuticated the required 4.16b, as required by the Board remand.  I suggest you "cut and paste" the portion of your BVA decision where it says that the VARO will consider the VEteran for tdiu via 4.16b.    You can further allege that VA violated 38 cfr 3.103, which says that Veterans deserve a written decision.  

    The issue as to whether you filed the nod on time or not was addreessed by the Board.  The VARO can not issue an order in conflict with what the BVA has already decided.  

Edited by broncovet
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Yes, the VARO must comply with a BVA remand.  Their failure is serious. 

Here is the order I did it (VA "non complied" with my remand for 3 years):

1.  Send an IRIS inquiring, "What to do when VA fails to comply with BVA remand orders?" and be specific, about the portion that VA ignored.  Document it by saving your copy of the email to your computer or printer.  

2.  Call the white house hotline and ask the same thing.  Again, document your call, who you spoke to, and when.

3.  Call Peggy.  Document the time called, who you spoke to and their response.  

4.  Wait a few weeks for something to happen.  If it gets resolved, there is nothing else you need to do. 

5.  However, if still not resolved, send the VA a 21-4138, along with your documentation above.  Again, be specific, and identify the date of decision and "what portions" the VA failed to implement.  Show the docket number.   On the top of this 21-4138 state:


"Notice of Intent to file a Writ of mandamus to compel the VARO in (city state) to comply with the BVA remand dated mm-dd-yy Docket number xx-12345"

6.  If VA has not complied with the remand after 30 more days, file a writ of mandamus with the CAVC to compel VARO compliance with remand.  

NOTE:  The court makes it clear a Writ of mandamus is not a substitute for an appeal.  To have a chance of your Writ succeeding, then take these steps first.  Show the court you have tried everything else, thus the Writ is necessary.  Chances are excellent the VARO will immediately comply with the remand, rather than face the wrath of superiors who arent real happy a Veteran had to file a writ to get done what the VARO should have already done.  

 

Edited by broncovet
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