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.

[Jake206th]

 

A remand by the Board or Court confers on the claimant a legal right to substantial

compliance with the remand order. Donnellan v. Shinseki, 24 Vet.App. 167, 176 (2010); Dyment

v. West, 13 Vet.App. 141, 147 (1999); Stegall v. West, 11 Vet.App. 268, 271 (1998).

 

 

The Court held that a remand from the Court or Board confers on the claimant, as a matter of law, the right to compliance with the remand order.

Stegall v. West 11 Vet. App. At 271.

Adams v. Principi, 256 F.3d 1318, 1322 (Fed. Cir. 2001).

Vanerson v. West, 12 Vet. App. 254 (1999)

(VA did not comply with BVA order that specifically requested a medical opinion as to probable etiology of a seizure disorder)

 

 

When the BVA issues a remand order, the veteran or surviving spouse is entitled to substantial compliance with the remand order.

D'Arles v. Peake, 22 Vet. App. 97, 105 (2008)

 

 

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]

This appears to be why a revision or reversal by an HLR using a CUE is a risk, because the standard for them to apply it is lower than what a Veteran has to show to file a motion of revision based on CUE.

 

 

VA revises § 3.104(c) to require clear and unmistakable evidence to rebut a favorable finding. The clear and unmistakable standard applicable to rebuttal is similar to the definition of CUE found in § 3.105(a)(1)(i) and 38 CFR 20.1403(a) that applies to finally adjudicated issues. However, application of the clear and unmistakable standard for rebuttal of a favorable finding is legally distinct because, for instance, it is limited to the scope of the favorable finding itself and does not require a further determination that the outcome of the benefit adjudication would undebatably change. The clear and unmistakable rebuttal standard may be satisfied by a finding that the evidentiary record as a whole completely lacks any plausible support for the favorable finding.

 

 

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]

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Edited August 15, 2022 by Jake206th
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