Public Law 115-55; Changes you may have missed.

[broncovet]

Some changes you may not be aware of:

1.  Binding nature of favorable findings:

Quote

‘‘§ 5104A. Binding nature of favorable findings ‘‘Any finding favorable to the claimant as described in section 5104(b)(4) of this title shall be binding on all subsequent adjudicators within the Department, unless clear and convincing evidence is shown to the contrary to rebut such favorable finding.’’.

2. You may request an adjutication by a different (VARO Office) with HLR:

Quote

(5104 B) (2) Such request may specifically indicate whether such review is requested by a higher-level adjudicator at the same office within the agency of original jurisdiction or by an adjudicator at a different office of the agency of original jurisdiction. The Secretary shall not deny such request for review by an adjudicator at a different office of the agency of original jurisdiction without good cause.

3.  You must choose between HLR, SCL or NOD, but you can not do more than one with the same claim issue: (Note:  If your decision was 2 or more issues, you may elect an SCL  on PTSD, and file a NOD to the BVA on the issue of hearing loss, for example.  ) 

Quote

(5104 C). ‘‘(2)(A) Once a claimant takes an action set forth in paragraph (1), the claimant may not take another action set forth in that paragraph with respect to the same claim or same issue contained within the claim until— ‘‘(i) the higher-level review, supplemental claim, or notice of disagreement is adjudicated; or ‘‘(ii) the request for higher-level review, supplemental claim, or notice of disagreement is withdrawn. ‘‘(B) Nothing in this subsection shall prohibit a claimant from taking any of the actions set forth in paragraph (1) in succession with respect to a claim or an issue contained within the claim. ‘‘(C) Nothing in this subsection shall prohibit a claimant from taking different actions set forth in paragraph (1) with respect to different claims or different issues contained within a claim.

The Secretary shall publish on the internet the backlog and average wait times:

Quote

(B) The number of appeals on any docket maintained under section 7107 of such title, as amended by section 2(t), that are pending. (C) The average duration for processing claims and supplemental claims, disaggregated by regional office. (D) The average duration for processing requests for higher-level review under section 5104B of such title, as added by section 2(g), disaggregated by regional office.

Author's note:  The average wait times, and backlogs are posted here:

https://www.benefits.va.gov/reports/detailed_claims_data.asp

[Vync]

Does that mean that if an obvious error occurred, a vet can still toss in a CUE on top of it all?

[broncovet]

The full text of Public Law 115-55 is here: https://www.govinfo.gov/content/pkg/PLAW-115publ55/pdf/PLAW-115publ55.pdf

Apparently the CUE regulations are separate, so you could file a CUE while simultaneously filing a NOD, SCL, or HLR.  But interpret it for yourself.  

[blahsaysme2u]

On 9/17/2022 at 12:01 PM, broncovet said:

Apparently the CUE regulations are separate, so you could file a CUE while simultaneously filing a NOD, SCL, or HLR.  But interpret it for yourself.  

this is true- and happened to me recently but i didnt discuss on the forum...it was accident

before i hired my lawyer my VSO filed NOD for SC to BVA...once we won that they filed a cue for EED....that claim sat awaiting BVA....then i got the lawyer...He filed NOD not realizing the VSO had already filed CUE...i was awarded 2 court dates and has sense really confused things on my claim- and possibly why i have been waiting so long bc we had to request to pull back the CUE and only deal with the NOD for EED before the judge...that was in april....still waiting and VA has sent letters asking if i want new hearings etc that has delayed the judge in filing his review/judgement... i advise with very limited knowledge- CHOOSE ONE OR THE OTHER AND MAKE SURE YOU DONT DOUBLE UP ON CLAIMS- the VA isnt smart enough to figure it out

 

On 9/17/2022 at 7:23 AM, broncovet said:

‘‘§ 5104A. Binding nature of favorable findings ‘‘Any finding favorable to the claimant as described in section 5104(b)(4) of this title shall be binding on all subsequent adjudicators within the Department, unless clear and convincing evidence is shown to the contrary to rebut such favorable finding.’’.

im interested in this if anyone has comments...what changed here? wasnt favorable findings always binding? were favorable findings being tossed? does this mean if something favorable comes back the VA needs to stop sending you for exams(i.e. i have had about 3x for my left leg that they are still fighting me on- i have had it x-rayed 4x;3x by C&P and once by me independently summited records; i had favorable findings from one exam saying my injuries were "least as likely from service" but they keep delaying and re-examining me- not to mention the last round of exams they kept trying to examine and x-ray my right leg when my claim is for my left and then sent a denial letter saying i refused the exams)

Edited September 20, 2022 by blahsaysme2u

[Mr cue]

53 minutes ago, blahsaysme2u said:

On 9/17/2022 at 7:23 AM, broncovet said:

5104A. Binding nature of favorable findings ‘‘Any finding favorable to the claimant as described in section 5104(b)(4) of this title shall be binding on all subsequent adjudicators within the Department, unless clear and convincing evidence is shown to the contrary to rebut such favorable finding.’’.

Expand  

im interested in this if anyone has comments...what changed here? wasnt favorable findings always binding? were favorable findings being tossed

Yes this is crazy because the VA just has not been address any of my favorable evidence. Also

Exams even there own decision are favorable evidence that they are to address.

I just got a cavc remand because of them not address my favorable evidence or there own older decisions in my case

I will be putting this cfr with my 90 day evidence letter.

Because I also have been send to over 5 6 comp exams for the same issue all favorable. But they keep not accepting the exam.

An ordering new ones and never address any thing with the other 9 exams which are part of my record.

My opinion is that they hire all these new people at the bva that don't have knowledge of the law or how to process a case.

I am doing something new this time I am including the date of exam date of bva decisions an put the evidence in my 90 day letter. What the doctor said.

I will no longer let  VA to look for my evidence.

Than they can not just not address what you put in your statement.

Court just remand my case for this also 

 

 

[broncovet]

Well, at least now with a regulation which addresses (favorable findings binding) it, then our lawyers can hold VA feet to the fire if they violate it.  

[blahsaysme2u]

but what does that mean? i went to read the new reg and it doesnt identify how this has changed or how this improves the process.