Need Help! VA does not consider LOD while in "Drill status" for compensation, I was discharged for this injury

[Pegster]

Hello, This is my first post, I have researched regulations and Laws and I am still unable to find an answer.  Is a Line of Duty while in UTA status considered eligible for VA compensation?  I was in the Air NG as a full time technician, I injured my back trying to move an aircraft part.  I went to physical therapy and was released from my profile about 4 months later, no issues.  Roughly 4-5 months later (in 2015) I was in Drill status, our UTA, and I was working in the warehouse prior to our PT test.  While testing I re-injured my lower back and also my ankle.  My lower back did not recover from this and I had surgery, a fusion, laminectomy, there was a Line of Duty done with an investigation and it was approved.  The medical board discharged me and being "unfit" and I also lost my T32 position.  While outprocessing a VA claim was submitted for my lower back and it has been denied since 2015. I  did go to the BVA 2 years ago and it was "remanded" back to VA locally.  I am still being told that VA does not consider being on Drill status as active duty.  Is there a regulation or Law that I could quote to them.  Any help I would appreciate.

[Pegster]

Hello, 

The decision each time read..... BACK CONDITION "Not service connected, Peacetime, Not Incurred/Caused by Service"  and "This condition neither occurred in nor was caused by service." The report of Investigation Line of Duty and Misconduct Status, came back with a Final Approval as "I find this incident to be deemed "EPTS" with Service Aggravation."  

I read the link you send me (Buck52), thank you, and this applies to me.  Would it be wise to copy this and send to VA?  

Yes, (Hamslice), I was told that by a few people/organizations, VSO, and VA.  

[broncovet]

This would appear to support your position, but I dont know how long you served or when you served.  This indicates it makes a difference:  

https://fas.org/sgp/crs/misc/R42324.pdf. scroll down to page 5, I think it is.  

Edited February 18, 2021 by broncovet

[Carl the Engineer]

Lawyer time.  Looks like page 5, footnote 33, to me.

Hamslice

 

[Berta]

"I  did go to the BVA 2 years ago and it was "remanded" back to VA locally.  I am still being told that VA does not consider being on Drill status as active duty.  Is there a regulation or Law that I could quote to them.?"

I you can scan and attach the RO decision here ( Cover your C file # name prior to scanning it )

maybe we can help more-

The decision should contain a regulation or citation for what they decided.

Can you give us the Docket # andd Citation # for th BVA remand?

It should be at the BVA web site by now.

 

Edited February 19, 2021 by Berta
weather problems with PC

[Berta]

to add, if the BVA agreed with the VA statement ..."VA does not consider being on Drill status as active duty" I think they=the BVA- would have denied on that basis, with a specific regulation.

That is why we need to see the remand....and the RO decision.

And it is quite possible that the RO did not follow the remand properly.

I am sure many here have experienced that.I sure did and had a lousy posthumous C & P exam ,ordered by the BVA , that with my rebuttal,to the exam ,the  BVA disregarded ,in favor of my 3 IMOs and awarded.

There are about 100 BVA decisions in the past 5 years that involve NG claims.

[broncovet]

Make sure you tattoo this on your arm, to remember it if you must: 

Quote

You can not always trust what all VA employees tell you.  

If you were "remanded" by the BVA, then the RO owes you a decision "in writing" promptly.  See 38 CFR 3.103.  "If" the VARO refuses to implement the Board remand with a written decision (Their words dont count, it must be in writing.) then you can consider filing a writ of mandamus before the CAVC to force VARO into a written decision.  Remands from the Board are to be given "expeditious treatment".    While Im not sure CAVC has "defined" expidtious treatment, 2 years is "too long" to be expeditious, even for VA.  

BEFORE you file a writ, I recommend:

1.  If you have no VARO decision, implementing the board remand, send an IRIS email inquiring the "status of the implementation of the Board remand dated (give date of Board remand).  You dont want to file a writ "just because the VARO forgets" until you at least document that you contacted them about same.  

38 CFR 3.103:

Quote

 3.103 Procedural due process and other rights.

(a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3.

(b) The right to notice -

(1) General. Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice will clearly set forth the elements described under paragraph (f) of this section, the right to a hearing on any issue involved in the claim as provided in paragraph (d) of this section, the right of representation, and the right, as well as the necessary procedures and time limits to initiate a higher-level review, supplemental claim, or appeal to the Board of Veterans' Appeals.

This statement is not ambiguous.  Its plain language says you have a right to a decision.  

Edited February 19, 2021 by broncovet