BVA to CAVC now back to the BVA

[ShrekTheTank]

This claim is from 2014.

I did the DRO and got nowhere

I have been to the BVA and back to the regional office with a partial award.

I then appealed to then appealed again to the CAVC with a lawyer and it was sent back to the BVA then to the RO and was awarded with the wrong EED.

It was then appealed by my lawyer as it was sent back to the BVA as not being correct as they put the date as 2021.  They missed it by a few years.

I have been sitting back at the Board again since last June.  I thought this would go back to the front of the line, but it just seems like a new line.

Has anyone had a current appeal that was sent back?  Then how long did it sit there before they did anything?  

I have called everyone and am still getting the same answer "it is with the Law judge"  

Asked if there was any time range that could be given and no luck.  

Any advice here is greatly appreciated.  

[ShrekTheTank]

9 minutes ago, broncovet said:

This "smells like" a Cue, that could be remedied by filing a motion to revise decision due to cue.  Of course, this "presumes" that the effective date error is not a judgement call, but rather a CUE.   

Remember your effective date is the later of the facts found, or date of claim.  Was your effective date either of those?  If not, this suggests clear error, as the regulations are clear. (but somewhat difficult to read).

https://www.law.cornell.edu/uscode/text/38/5110

 You may have to check your medical records and review them to determine "when" your records shows you met the critieria for the applicable symptoms as well as when a doctor said your condition was at least as likely as not due to military service.  

Read over the regulations and decide "which" of those exceptions, if any, apply to you.  

For example, did you apply within a year of exit from service?  If yes, that applies, if no it does not.  

Also is this an increase?  Likely.  There is a paragraph for that, too.  

Ditto for ITF and other stuff.  

If you file a cue, narrow down the regulation you allege the VA violated.  

This is really good advice.  I will wait for the Judge as it is sitting with them right now at the BVA.  If the Judge corrects the RO's decision, then there is no issue.  

As of right now they have a IMO from 2015 which rebuts the 3 VA doctors who put me at a low rating and ignored what should have made it higher.

and if they do not do the right thing then I will for sure file a CUE.

Thank you all for the advice.

[Marine Corp 69/70]

 shrekthetank1 are you in the new system or the old one because I read if you get remand back to the RO you go into the new system and you don’t get the same judge back again, I think it was from CC&K post check it out 

[ShrekTheTank]

@Marine Corp 69/70  That is good to know.  I will go check it out  

[pacmanx1]

19 hours ago, shrekthetank1 said:

I then appealed to then appealed again to the CAVC with a lawyer and it was sent back to the BVA then to the RO and was awarded with the wrong EED.

I feel your pain and frustration. In a similar situation. The BVA did a straight grant, and the RO low Balled my initial rating, and I filed a NOD. The RO increased my rating but assigned the wrong effective date with no (retro) back pay. I filed a new NOD, and the RO decreased my rating and assigned another wrong effective date. I had to file another NOD and this time the RO sent it back to the BVA and the Board granted my correct effective date, ordered the RO to restore my increased rating and determine if my initial rating should have been rated higher. Well, the RO implemented the order and retro-ed (paid) my granted portion, restored my increased rating but completely ignored the order to determine if my initial rating should have been rated higher. Since the BVA had already granted my correct effective date, the RO could not screw it up again, but they refused to determine if my initial rating percentage should have been higher, so my claim is back at the BVA waiting its turn. Each time I check, I am told that my appeal is being reviewed by the ALJ. This claim has been in continued pursuit with medical evidence that support my higher rating, but I am still waiting. At this stage I am also told that I should get a decision soon and the only thing to do is to wait. Easier said than done. My CAVC decision goes back to 2013.

Edited April 6, 2022 by pacmanx1

[ShrekTheTank]

Sounds like the same crap.  I just want to know so I can drop my Student loan discharge.  

[pacmanx1]

10 minutes ago, shrekthetank1 said:

Sounds like the same crap.  I just want to know so I can drop my Student loan discharge.  

If you are rated P & T you can go ahead and submit the form. I did mine right after I got my original P & T award letter.