Hi all, I have an appeal before the BVA that concerns the rating official sending SOC to wrong VSO in 2000. I had moved and informed the VAMC that I had during an appointment, so they had constructive notice of the address change, however, that is irrelevant because the issue(s) were for mental conditions. The VA was prescribing me medications but I could not afford them due to being rated at less than 50% at the time, and the VA was recouping my separation pay and being unemployed due to service connected conditions that they were denying but I later received SC for. Because I had been diagnosed with five mental conditions caused by mTBI, I was not competent to represent myself at the time (The VA definition for determination of incompetence is limited to the management of benefits.). The claim was inquired about and the rater declared that the claim was final. The BVA declared it to be reopened and service connection granted at 100%, but the Rater only service connected it back to when they say it was reopened. I am on medication now, so I am trying to get my footing. According to the citation below, and a few others I have ran across, the claim remained pending. I am hoping for a case that actually is on point for the VSO not being given notice, as the citation is persuasive, but not precedent. any help is appreciated.
citation nr 1324624
The time for appealing either an RO or a Board decision does not run if VA
failed to provide information or material critical to the
appellate process. See Tablazon v. Brown, 8 Vet. App. 359 (1995)
(because the VA did not furnish the Veteran with a statement of
the case, he was unable to file a "formal appeal" with the Board
and the RO rating decision did not become final).
In this case, VA failed to provide the SOC to the correct POA.
Therefore, the DAV was unable to file a "formal appeal" with the
Board and the November 2007 rating decision is not final.
As noted below, the claim of service connection for PTSD includes
depression and anxiety. In Clemons v. Shinseki, 23 Vet. App. 1 (2009),
the Court found that the Board erred in not considering
the scope of the Veteran's claim for service connection for PTSD
as including any mental disability that may reasonably be
encompassed by the claimant's description of the claim, reported
symptoms, and the other information of record (in that case,
diagnoses of anxiety disorder and schizoid disorder). In this
case, there is evidence of a diagnosis of depressive disorder,
anxiety and PTSD. Hence, while the November 2007 rating decision
separately addressed entitlement to service connection for
PTSD and depression, the Board has now characterized the appeal as
encompassing the matters set forth on the title page.
And
The Veteran seeks service connection for PTSD and depression.
As noted above, the RO denied these claims in a November 2007 rating
decision. The RO ultimately determined that the November 2007
rating decision became final because the Veteran did not submit a
timely substantive appeal to the Board. Then, the RO subsequently
denied the claims on a new and material basis in a September 2009
rating decision. However, as noted in the Introduction Section above,
a procedural error by the RO likely resulted in the DAV's
failure to provide a timely substantive appeal. As such, the November
2007 rating decision is not final, and this is an original
claim for service connection.
CONCLUSIONS OF LAW
1. The November 2007 rating decision is not final. 38 U.S.C.A. § 7105
(b)(West 2002); 38 C.F.R. § 20.1103 (2012).
Question
dwragon
Hi all, I have an appeal before the BVA that concerns the rating official sending SOC to wrong VSO in 2000. I had moved and informed the VAMC that I had during an appointment, so they had constructive notice of the address change, however, that is irrelevant because the issue(s) were for mental conditions. The VA was prescribing me medications but I could not afford them due to being rated at less than 50% at the time, and the VA was recouping my separation pay and being unemployed due to service connected conditions that they were denying but I later received SC for. Because I had been diagnosed with five mental conditions caused by mTBI, I was not competent to represent myself at the time (The VA definition for determination of incompetence is limited to the management of benefits.). The claim was inquired about and the rater declared that the claim was final. The BVA declared it to be reopened and service connection granted at 100%, but the Rater only service connected it back to when they say it was reopened. I am on medication now, so I am trying to get my footing. According to the citation below, and a few others I have ran across, the claim remained pending. I am hoping for a case that actually is on point for the VSO not being given notice, as the citation is persuasive, but not precedent. any help is appreciated.
citation nr 1324624
The time for appealing either an RO or a Board decision does not run if VA failed to provide information or material critical to the appellate process. See Tablazon v. Brown, 8 Vet. App. 359 (1995) (because the VA did not furnish the Veteran with a statement of the case, he was unable to file a "formal appeal" with the Board and the RO rating decision did not become final). In this case, VA failed to provide the SOC to the correct POA. Therefore, the DAV was unable to file a "formal appeal" with the Board and the November 2007 rating decision is not final. As noted below, the claim of service connection for PTSD includes depression and anxiety. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court found that the Board erred in not considering the scope of the Veteran's claim for service connection for PTSD as including any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record (in that case, diagnoses of anxiety disorder and schizoid disorder). In this case, there is evidence of a diagnosis of depressive disorder, anxiety and PTSD. Hence, while the November 2007 rating decision separately addressed entitlement to service connection for PTSD and depression, the Board has now characterized the appeal as encompassing the matters set forth on the title page. And The Veteran seeks service connection for PTSD and depression. As noted above, the RO denied these claims in a November 2007 rating decision. The RO ultimately determined that the November 2007 rating decision became final because the Veteran did not submit a timely substantive appeal to the Board. Then, the RO subsequently denied the claims on a new and material basis in a September 2009 rating decision. However, as noted in the Introduction Section above, a procedural error by the RO likely resulted in the DAV's failure to provide a timely substantive appeal. As such, the November 2007 rating decision is not final, and this is an original claim for service connection. CONCLUSIONS OF LAW 1. The November 2007 rating decision is not final. 38 U.S.C.A. § 7105 (b)(West 2002); 38 C.F.R. § 20.1103 (2012).
Edited by dwragonoverlap
Link to comment
Share on other sites
Top Posters For This Question
1
1
1
1
Popular Days
Nov 14
4
Top Posters For This Question
broncovet 1 post
dwragon 1 post
Dustoff1970 1 post
pacmanx1 1 post
Popular Days
Nov 14 2023
4 posts
Posted Images
3 answers to this question
Recommended Posts
Create an account or sign in to comment
You need to be a member in order to leave a comment
Create an account
Sign up for a new account in our community. It's easy!
Register a new accountSign in
Already have an account? Sign in here.
Sign In Now