HLR or back to board

[SPO]

As of today, my appeal was officially closed.  Overall I won.  I was granted 100% P&T, even after some additional exams.  However they effective date only went back to July 2020 (date of my last c&p),  I originally submitted in November 2018.  So missing close to 2 years of pay.   The supplemental claim which this appeal was based on did grant me a couple items, which were dated all the way back to November 2018.   That decision stated this was because the claim was continuously pursued. My appeal was filed less than a month after the supplemental decision, so in a timely manner. This appeal implementation decision did not use that logic and decided the date of the c&p was the first time they had evidence (I was given 0% rating from November 2018 to July 2020 on most items).  Now the question is do I HLR and try to argue they used 2 different methods to determine effective date based on the same evidence, or take it right back to the board?  one guy at DAV said take it to the board so they don’t mess with anything else, but I’m not sure if there is any truth in that.

[pacmanx1]

37 minutes ago, Jake206th said:

I shouldn't have to risk losing my 100% P&T I fought for 20 years to get in an HLR for an effective date error to be corrected quickly by the same group that messed it up to begin with, and shouldn't have to wait 2 years to have the board correct an error the RO made that they were supposed to prevent in the first place.

 

This is what I have been thinking lately when people say the VA fixed their process, or when the VA talks about the AMA and VBMS basically fixing all of the problems.

 

Once a veteran is adjudicated/judged as being rated P & T, it would be very hard for the VA to turn around and try to say that the veteran’s disability(ies) has improved to the point of removing his/her P & T rating status. So, it is not likely. There are a lot of veterans fighting the VA on these issues. The BVA already granted my 1998 effective date which put my claim in a continued pursuit status and remanded back to the RO to evaluate my initial claim for excess rating, but the RO still ignored their Order, and my claim was returned back to the BVA. 

Be forewarned that everything you hear or see about the VA may not be the truth. VA’s records should speak for themselves. I know that this may rub a few the wrong way but the Appeal Metrics has been stuck on August 2019 and my remand is at least a year older than that date and I am still waiting. I am not calling anyone liars, but the truth is the truth. The Appeals Metrics is also adding days since October 2021. Look for my post, I will update it.  

 

[Jake206th]

 

 

I wasn't referring to a reduction based on continued improvement. I was referring to what options the VA has at the HLR level to reduce a 100% P&T evaluation.

 

So my claim in not considered finally adjudicated because I am still within the 1 year period to appeal the rating decision.

So I have been researching what options the VA has at an HLR to reduce 100% P&T rating if I appeal for EED.

 My understanding is that they can not decide it less advantageously based solely on a difference of opinion, so that leaves them the motion for revision based on CUE which they can file arbitrarily at their discretion. And it follows, that since they are wrong so often, they could erroneously file one just because they can. And a person would have to go to the board to get it corrected which could mean a reduction for years while on the hamster wheel.

 

 

38 CFR § 3.105 Revision of decisions.

(a)

(2) Error in binding decisions prior to final adjudication. Prior to the time that a claim is finally adjudicated, previous decisions which are binding will be accepted as correct by the agency of original jurisdiction, with respect to the evidentiary record and law existing at the time of the decision, unless the decision is clearly erroneous, after considering whether any favorable findings may be reversed as provided in § 3.104(c). Displaying title 38, up to date as of 2/22/2022. Title 38 was last amended 2/16/2022.

 

 

38 CFR 3.2601 Higher-level review.

(j) Difference of opinion.

The higher-level adjudicator may grant a benefit sought in the claim under review based on a difference of opinion (see § 3.105(b)). However, any finding favorable to the claimant is binding except as provided in § 3.104(c) of this part. In addition, the higher-level adjudicator will not revise the outcome in a manner that is less advantageous to the claimant based solely on a difference of opinion. The higher-level adjudicator may reverse or revise (even if disadvantageous to the claimant) prior decisions by VA (including the decision being reviewed or any prior decision) on the grounds of clear and unmistakable error under § 3.105(a)(1) or (a)(2), as applicable, depending on whether the prior decision is finally adjudicated. Displaying title 38, up to date as of 2/22/2022. Title 38 was last amended 2/16/2022.

 

 

38 CFR 3.104 Binding nature of decisions

(c) Favorable findings.

Any finding favorable to the claimant made by either a VA adjudicator, as described in § 3.103(f)(4), or by the Board of Veterans' Appeals, as described in § 20.801(a) of this chapter, is binding on all subsequent agency of original jurisdiction and Board of Veterans' Appeals adjudicators, unless rebutted by evidence that identifies a clear and unmistakable error in the favorable finding. For purposes of this section, a finding means a conclusion either on a question of fact or on an application of law to facts made by an adjudicator concerning the issue(s) under review. Displaying title 38, up to date as of 2/22/2022. Title 38 was last amended 2/16/2022.

 

 

38 CFR § 3.160 Status of claims. Finally adjudicated claim. A claim that is adjudicated by the Department of Veterans Affairs as either allowed or disallowed is considered finally adjudicated when:

(2) For claims under the modernized review system, the expiration of the period in which to file a review option available under § 3.2500 or disposition on judicial review where no such review option is available. Displaying title 38, up to date as of 2/22/2022. Title 38 was last amended 2/16/2022.

 

 

I am not a lawyer, and nothing I have written is legal advice, it is just how things appear to me based on my limited understanding, and therefore may be incorrect.

Edited February 4, 2023 by Jake206th

[Mr cue]

1 hour ago, Jake206th said:

Now under the AMA, I lost my docket number and place in line at the board and cant just tell them, hey, the remand order effective date wasn't considered by the rater, can you get that corrected. So now to appeal to the board for the effective date, it starts from the beginning with a new appeal, a new wait, and new docket number

I find this to be a big problem that must be address.

They are even do it to cavc remand.

Ok say you started your appeal 2018.

You appeal all the way the court.

They remand it. You still have the same docket number.

Ok here is were I don't think it's legal.

Day they granted one month on the issue remand by the court.

They will make you start a new nod and appeal. An will change the docket. From 2018.

It will now be 2022.

Now you are at the end of the line waiting years for your appeal to get back to a bva judge.

Now ok this is were they really do you.

Let say once it get back to the judge he granted the issue.

They will now try to take away the 2018 date when you started the appeal.

An granted the 2022 date based on the new nod and appeal they started.

Many might not get this but if you are waiting years after a cavc remand or a bva remand.

I will bet they change your docket number.

[Mr cue]

It call cooking the books.

 

[Jake206th]

Mr Cue, I don't think I will lose the effective date cause I filed timely appeals, because it is continuously persued. If it is Appeal > Remand > Rating decision > Appeal > Remand > Rating decision... etc.

However it is the hamster wheel and takes years each time around because of loosing the docket # and place in line at the board every time. The fact that it had to be remanded proves that the RO is not competent in the first place.

I am not sure at what point the Board is being notified now about rating decisions that are not full grants of maximum benefits being sought by the veteran, so they can follow up on their duty by law to make sure the RO was substantially compliant with the Boards remand order.

Here is what the VA said about it when it was brought up. Basically they say there are ample protections and the Veteran can always get back on the hamster wheel and appeal a decision. So they don't appear to be concerned about remand order compliance.

 

 

 

Federal Register VA Claims and Appeals Modernization 1-18-2019,

This final rule is effective February 19, 2019. Effective Date: 02/19/2019

 

Document Type: Rule

Document Citation: 84 FR 138

Page: 138-194 (57 pages)

 

A commenter expressed concern that because remanded cases are no longer returned to the Board per the proposed rule, the Board will not be able to ensure that the agency of original jurisdiction complied with all remand directives, consistent with Stegall v. West, 11 Vet. App. 268, 271 (1999). The commenter urged VA to develop and implement a dedicated quality review methodology for Board remands. The design of the new system provides ample protections to ensure that subsequent adjudicators comply with the Board's remand directives. The AMA requires that any pre-decisional duty to assist error discovered by an adjudicator be cured and that the decision be readjudicated by the agency of original jurisdiction. Following readjudication, the veteran may again request Higher-Level Review, file a Supplemental Claim, or appeal to the Board. If such action is taken within one year, the original effective date will be preserved.

 

Regarding the commenter's recommendation for dedicated quality review, the Direct Review docket, described in proposed § 20.301, captures quality feedback from appeals in which no additional evidence is added to the record. This allows VA to identify areas in which the claims process can be improved and will allow VA to develop targeted training. VA makes no changes based on these comments.

 

 

I am not a lawyer, and nothing I have written is legal advice, it is just how things appear to me based on my limited understanding, and therefore may be incorrect.

Edited February 4, 2023 by Jake206th

[Jake206th]

-

Edited August 15, 2022 by Jake206th
duplicate