God I love playing with the vA. It’s like talking to an ADD-afflicted twelve year old. They leave themselves open to it. Witness here that I have asked for a”Motion for Revision” of a determination to reduce my scarring rating from 10% to 0% without any examination. First of all, in order to reduce the rating, they are required to follow certain protocols before summarily reducing it. One of the big ones is to announce it will happen in six months if I do nothing about it. They violated that one right out of the gate.
Witness here also how vA attempts to change the subject and send me on a wild goose chase either up to the BvA or back to the RO for an “increase” on an existing rating. Apparently they believe they do not have an apparatus to revise prior decisions that were in error. We call this CUE or a Motion to Revise. In any case, this is a vain attempt to derail the process and ignore the lost filing. Thus my reference to ADD. Since they have no explanation for why they don’t have my filing, they present a host of other options except for the one I request. Interesting, isn’t it? vA calls this “construing what it is the claimant wants or is asking for”.
|Response via Email Via Email (Department of Veterans Affairs)||07/26/2012 09:53 AM|
|Dear Mr. NOD:
This is in response to your inquiry to the Department of Veterans Affairs (VA) dated July 25, 2012.
Thank you for your reply.
We are forwarding your inquiry to the Seattle Regional Office for assistance and to check if the documentation you mailed on October 10, 2011, was received. Once we receive a reply to our request, we will contact you via this inquiry system and provide you with an update.
We apologize we are unable to provide you with an immediate answer to your question, and appreciate your patience as we research this matter.
VA Claim and Appeal Procedures
Mr. NOD, you have stated you filed a Motion for Revision for the decision on your porphyria rating. VA records indicate the appeal (the Notice of Disagreement) was received on October 9, 2008, and the Statement of the Case (SOC) was mailed to you on March 26, 2010. The next step in the appeals process (which would have been included with the SOC) is for the Veteran to file a VA Form 9, Appeal to the Board of Veterans Affairs (BVA), if he disagrees with the decision made and stated in the SOC. This must be done within 60 days of the SOC.
You have stated you mailed your Motion for Revision to VA on October 10, 2011. VA procedures (for the filing of claims and appeals) are to either file a VA Form 9 within the 60-day time frame stated above, which would allow the appeal to be advanced to the BVA, or to reopen the claim at the regional office if outside the 60-day period. VA does not have a Motion for Revision option.
VA does have a VA Form 4597, which is Your Rights to Appeal our Decision, and is located at the following web site: http://www.va.gov/vaforms/va/pdf/VA4597.pdf This form is used by the Veteran if he receives a decision on his appeal by the BVA and is not satisfied with the Board’s decision on any or all of the issues allowed, denied, or dismissed. The Veteran then has the following options (using the above form), which are listed in no particular order of importance:
-Appeal to the United States Court of Appeals for Veterans Claims (Court)
You may choose to also: reopen your claim at the local VA office by submitting new and material evidence.
Please note: the regional offices are currently responding to a large volume of requests for assistance through our inquiry system, and are doing their best to answer these as quickly as possible. As each Veteran’s concerns are as important as the next, the regional offices respond to our requests generally in the order of receipt. It may be awhile before we receive communication from the regional office; however, we will contact you through this inquiry as soon as we do.
Thank you for contacting us. If you have questions or need additional help with the information in our reply, please respond to this message or see our other contact information below.
Donovan W. Thompson
Here is my rather droll set of instructions for them to follow in case they have misplaced the M 21 1MR. A cite to 38 CFR is added in case they accidentally or inadvertently deleted that portion from their M 21.
Since I failed to respond to the March 29th, 2010 rating decision due to my being in the Seattle VAMC after two surgeries, I was unable to perfect my appeal. The VBA has chosen not to grant me equitable tolling to file the Form 9 within a period of time suitable to my medical situation. This matter is on appeal to the Court of Appeals for Veterans claims. What isn’t on appeal is my right to challenge the Seattle Regional Office’s reduction of my Porphyria rating under Diagnostic Code 7815 from 10% to 0% (noncompensable). As the Seattle Regional Office is the Agency of Original Jurisdiction (AOJ), they are the appropriate legal entity to petition for a Motion For Revision based on clear and unmistakable error. Since this facet of my claim was not appealed to the Board Of Veterans Appeals, they do not have jurisdiction over it. The Seattle Regional Office must legally determine this error in the first instance because an appeal is not ripe yet.
To correct your statement, I sent my Motion for Revision based on CUE to the Seattle VARO on October 11th, 2011-not the 10th as is stated above. The Seattle RO mail room should have received it on the 13th of October, 2011 or thereabouts. Since I have a certificate of mailing from the USPS, the Presumption of Regularity attaches to my mailing and VA is legally assumed to have received it whether it actually did or did not. Since this is a Motion for Revision based on CUE, it is not time sensitive for a date of claim determination.
Please allow me to clarify this if you are still confused. This is not a new claim. This is not a request to reopen a claim. This is not a request for an increase of a rating. This is a motion to revise an unappealed decision whose time to appeal has expired. The VBA granted me a rating of 10% for scarring related to service-connected Porphyria Cutanea Tarda on October 1, 2008. The DRO review reduced this rating March 29th, 2010 to 0%. The VA cannot reduce this rating without a proper notification process and an opportunity to respond. As the time allowed to respond has expired, the only legal recourse I have is to file a Motion for Revision based on clear and unmistakable error contesting the reduction of my award. I am doing so. The VBA must prove that they were justified in this action. Please reinstate my Motion for Revision based on clear and unmistakable error and adjudicate it forewith. If you cannot find my claims submission I would be happy to supply you with another copy. I wish to preserve my October 11th, 2011 submission date in order to see this adjudicated sooner rather than later. I am aware of the backlog and do not feel that I should have to suffer a longer wait due to the inability of the Veterans Administration to properly associate my claims motion with my claims folder and act on it in a timely manner.
As I am sure the VA is more than aware, in an adversarial filing to revise an incorrect decision based on clear and unmistakable error, there can be no introduction of new and material evidence. The revision must be based on the evidence in the file at the time the decision was promulgated. Your communication states ” VA does not have a Motion for Revision option”. I refer you to 38 CFR §3.105(a) and (e) for information that will illuminate you on VA regulations concerning this important facet of legal jurisprudence. Absent a finding that my scarring due to Porphyria is not greater than 5% but less than 20%, the decision is clearly erroneous and must be reversed. The onus of responsibility to refute this lies with the VA and not me. VA made this finding and it must prove that this decision was in error. A rating for phlebotomies (DC 7704) does not contemplate scarring. Conversely, a rating for scarring (DC 7815) does not comprehend phlebotomies. As they are two disparate disease processes, avoidance of pyramiding under 38 CFR §4.14 is not for consideration. Thus, the award of both ratings does not conflict with VA regulations.
I wonder what they will come up with next. “Sir, since the scarring was due to alien abduction, that is beyond the purview of vA’s ability to remunerate. Nor was it in the line of duty. Thank you very much for your service to America. If there’s anything else we can do to blow you off, please do not hesitate to contact us. ” signed Donovan and the Gang.