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Case citation for the rating official sending SOC to wrong VSO (Circa 2000).

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dwragon

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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 dwragon
overlap
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Pick out key words in this Cita

Tion and enter into cavc court website search box until you finally find a 3 judge decision citation. You can do same at bva decisions search box until you find the citation. Will have to use different key words until you find it.  Can also read court decisions in citation that may mention the sought after citation. Lot of work but worked for me. The citation may mention a 3 judge decision from cavc or fed appeals circuit court.

My comment is not legal advice as I am not a lawyer, paralegal or VSO.

Total VA disability percentages 250%

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Edited by Dustoff1970
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Im not sure when the VARO decision is, but appeal it if its within a year.  Dont feel like the lone ranger, VA pretty much got the effective date wrong on all of the decisions awarding benefits and had to be appealed.  

I have a lot of experience with Effective date appeals.  

Your effective date is the later of the "facts found" (aka the date the doc said you were disabled) and the date of claim.  

I like your citations.  

You have 2 choices, as I see it:

1.  Appeal the decision yourself or

2. Hire a NOVA attorney to fight for yout effective date.  Its possible, you could get Pro bono (no charge for you) representation at NVLSP.  

     In my opinion, worst case senario is you hire an attorney, pay him/her 20 percent of the retro, and you get to keep 80 percent.  This assumes you can not locate a pro bono attorney.  

As an alternative to the above, you could consider filing a CUE as the VA violated 38 CFR 4.6, and did not maximize your benefits, but instead made up their own rules on effective dates.   The VA improperly considered this a 38 cfr 3.156 claim (new evidence).  Instead, the VA should have "implemented" the boards appeal with the effective date being your original date of claim, "unless" the VA can show you the facts found was that you were not disabled until the submission of new evidence.  

    Therefore, my advice is:

1.  Contact NVLSP and ask them if pro bono representation is possible.

https://www.nvlsp.org/what-we-do/lawyers-serving-warriors

2.  If NVLSP indicates you dont meet their criteria for representation, then hire your own attorney, picking from one on the NOVA website:

https://www.vetadvocates.org/cpages/sustaining-members-directory

     Attorneys who represent Veterans are very busy, and dont be discouraged if your first couple of requests to law firm representation are not productive, but instead persist until you get your benefits by seeking another law firm.  

      Its my unsubstantiated lay opinion that this is way above the paygrade of  VSO representation, you need an professional lawyer, from one of the links I posted above. 

     You may be able to save some law fees representing yourself, but only if you are willing to put considerable effort into it, and your health may not permit this.  Hadit members can guide you along the way if you choose to represent yourself.  (pro se).  Its also ok to have a vso, but you will still need to do the work yourself.  A VSO is useful in representing yourself "only if" the VSO has VBMS access.  VBMS access will show the claim status in real time, and what evidence they had and when.  

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11 hours ago, dwragon said:

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.

If this was a simple (recent) VARO Decision within a years' time, file a new appeal back to the BVA requesting an EED earlier effective date. If the BVA deemed your claim/appeal to be reopened, then 38 CFR 3.156 says the VA has to re-adjudicate the entire evidence both old and new.

Also, Clemons V, Shinseki is a CAVC Presential decision and can be cited.

38 CFR 3.103C covers Procedural Due Process and Other Rights.

Constructive receipt of VA treatment records.

Edited by pacmanx1
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