I have an unusual case of a gentleman who filed to stop a reduction in his rating. At the same time, he had a newly denied claim at the Seattle RO. The gentleman filed his NOD and the presumption of regularity in Sikels v. Shinseki kicked in. VA was presumed to be competent. The SEARO 346 krewe promptly (in VA time) certified this baby (sans the SOC) along with his reduction appeal with a Form 8 and called FEDEX for a pickup to DC.
Later, Johnny Vet sits for a Board hearing and discusses the whole new secondary (grand mal seizures due to 16 psychotropic drugs for PTSD arguing with each other). He had opted to quit taking them which pissed off the Brain Doctors. VBASEARO got wind of it and proposed to reduce from 100% to 70%. Reduce him they did. He appealed but the failure of the Seattle Gang who couldn’t shoot straight to issue an official SOC on the seizures, created an ownership problem.
The cat was out of the bag. The Board (three back then in 1991) had heard testimony on the seizures and its inextricably intertwined (Harris v. Derwinski) Harris_90-240 bearing on bent brain syndrome in general and pharmaceutical toxicity in particular. By even permitting Johnbo’s testimony and agreeing to hear it, they accepted that it was properly before them. Concurrently, the Seattle krewe, by ignoring procedure and issuing the VA 8, had also declared the seizures claim ready for ‘one decision, on appeal’ as they say before your BVA hanging.
As an aside, many of you in the readership have seen your claim declared “awaiting certification”-sometimes for 16 months. Nowadays, due to the constipating backlog at the BVA, certification means 4 years. The BVA solved some of this problem by leasing more warehouses to store the paper claims. Thank goodness for the belated electronics transformation. Now they can do it in a six by nine closet. You see, that actual act of certification could occur in about five minutes. VA rater sticks old paper file in FEDEX box. Tapes it shut. Puts label on it. Sends it to basement to await “certification” and shipping to DC to be docketed at the BVA. BVA folks don’t want to see anything until it’s time to take a gander at it. If it gets lost before the magic certification, it can’t be the BVA’s fault. When you receive a Notice of Certification, it’s more about like finding out it’s going to finally get docketed and assigned a case number. Expect a hearing in about a year or so.
In my Vet’s case, the BVA realized the mistake before washing their hands of it. By rights, any smart attorney would file a waiver of review in the first instance at the RO just to keep it there before the judges. Absent that, a true remand was in order to correct the SOC error. That would have added a year to the appeal but would have avoided the next bozo. So, in the interests of the Veteran, the Veterans Law Judges semantically stepped on their collective necktie and “referred” it back to Seattle instead of remanding it and continuing to retain control of it. A denial decision had already been made and a substantive appeal begun (NOD). The only thing amiss was the lack of a SOC and the submittal of a VA Form 1-9. VA, of course, issued the obligatory SOC but demanded a new VA 1-9 to recertify what was by now legally owned and properly certified- complete with docket number- at the BVA. My Vet’s VVA rep. suddenly evaporated for parts unknown and no one ever complained or intervened to get this back on track.
In VA law, a referral from a higher court would be if you filed for DM2 and the gomers at your RO were working the claim. Meanwhile, you have another issue with a VA 9 already signed for a bad back increase from 40% to 60%. When it gets to the BVA, they spot the DM2 claim hasn’t been decided yet and ‘refer’ it back to the RO to issue an up or down decision in the first instance. Go ahead and laugh. It’s a brand new claim with no history and needs a preliminary denial to begin the NOD process. The problem is that the Veterans Law Judge does all of this once- at the end when he announces the decision on the reduction appeal. He has held the seizure claim hostage for 9 months before “referring” it back to the RO.
On the other hand, a legal appeal to a Court in which a judicial error occurred below at the Agency level during the substantive appeals process, requires a “remand” to complete the appeal process to the BVA. Think repair order once construction has begun. Or read this one –https://asknod.org/2012/02/16/everything-you-always-wanted-to-know-about-remands/ Once the BVA hears a matter, or accepts it, and/or takes testimony at a hearing and begins to review it, they have formally accepted the claim and now exert ownership. A remand is merely to gather more info with which to use for a more informed decision, or a true remand to correct an adjudicatory deficiency below. Regardless the cause, the appeal(s) once free of defect, are properly returned to the BVA for the promised “one decision on appeal” as promised in statute. One of the oldest tricks in the book was “forgetting” to include a Vet’s SSI/SSD records in his c-file to the BVA for TDIU consideration. Bingo. Remand. One year (or more) delay.
Mr. M.C. Percy
Mr. M.C. Percy, with no identifier as to what “M.C.” stands for, suffered much the same as my client. In 1970, Mr. Percy had an unfortuitous encounter with a hand grenade in the former Republic of South Vietnam. one piece missed Winky by thaaaaaaaat much, thank his lucky stars, but it was that sensitive suprapubic area above Mr. Winky that continued to bother him. The typical rating in 1971 was 0% and Mr. Percy was afforded no different attention. In 1998, they gave him a raise to 30% with an effective date of 94. He must have been playing golf with his DAV rep. and got in good with him by buying his drinks and greens fees. VA doesn’t often cough up four year retro payments to anyone but good ol’ boys and malfeasanating VISN directors.
A year later, in 1999, within the NOD window, Mr. Percy filed a substantive appeal up to the Big House on Vermin Ave. NW. Mr. Percy was subsequently informed after his hearing that his Regional Office had screwed up and they didn’t have authority to talk about an increase because he’d failed to discuss it on the VA 9. Mr. Percy did, however, file about two more VA 9s to try to get it right on what he was appealing. Apparently, there were three other things that were in the same judicial limbo, too- one of which was his effective date for the Winky-area wound.
I have to hand it to Terry L. McElyea, his pro bono attorney, though. Terry’s a Judge Advocate General (JAG for short) kind of guy for the most part. He’s a Prosecution whiz for the Court of Appeals for Uniformed Servicemen. This whole claim was headed for the denial pile until Terry pointed out that VA justice however imperfect and crude, still affords us a different, friendlier attitude and cannot consider a BVA Veterans Law Judge the equal of a COVA Justice approved by the US Senate. He had to point out the obvious- that Bowles v Russell 127 S. Ct. 2360 (2007) was not on point. Bowles was civil law, not VA Law. Henderson dealt, again with civil law but not at the agency level below. Henderson, thus, was not on point either. Ol’ M.C. was filing at the agency level and appealing to the upper level of the Board of Vets Appeals-still below the federal level. To say Percy’s timing on any VA 9 filings made to the BVA were beyond the suspense date and final defeats the warm, fuzzy admonition in 38 USC §7105…
The filing of a substantive appeal to the Board is not jurisdictional because 38 U.S. C. §7105 explicitly permits relief from prescribed appeal periods with the Agency and permits the Secretary to prescribe regulations to allow a claim even if the appeal period has expired (60-day period prescribed for filing formal appeal with the Board of Veterans’ Appeals “may be extended for a reasonable period on request for good cause shown”). Additionally, the Board may waive or equitably toll its filing requirements. Furthermore, Bowles and Henderson are not applicable to the Appellant’s case because those cases deal with civil cases appealed to federal courts and the Appellant’s case deals with an administrative appeal within the Agency.
38 USC §7105 has to have some built-in slack. VA screws things up so badly so frequently, they’d look bad if they really got nasty with the 60-day SOC suspense date and were dogmatic in enforcing it as being jurisdictional in everyday practice.
Not bad for a JAG, huh? This guy does US military law and he still picked up on this dichotomy between the Agency and the next step up into the Federal level. An Agency has to know its limitations in order to win. This is one more glaring example of why you don’t want your drinking buddy from VFW, who is also your service representative for VA claims, handling something like this.
I finally learned the difference between referred and remanded- even though I knew my Vet was due a remand that should have been returned to the Board after the SOC was issued. Thank you Brad. More importantly, this is a great teaching moment for Vets. Many of you may have suffered this indignity of appealing it up to the BVA and a final remembrance that it seemed something was still amiss but unsure of what. My Vet sniffed it out and asked why he’d won in 2010 with basically the same evidence. Just like any train wreck, you have to go back and reconstruct the accident scene with the c-file. Boy howdy. Can you believe a Marine in 1991 would have the intelligence to ask for a c-file? This boy sure did and it can’t be lost, stolen, accidentally shredded, suffer shrinkage or be misplaced now.
I love forensic claims. The cachet of old claim is more pungent and redolent with VA mistakes than any other. There are three ways you can get back to the past now. 38 CFR §3.156(c) is the best known. Finding Clear and Unmistakable Error (CUE) is a very hard path as many know. But, if you find an unreturned remand to the BVA in your c-file, you discover your old, dead substantive appeal is still alive and vibrant- de novo once again. With the help of a few law dogs, I can now better understand the semantics of why they got misplaced or waylaid on the claims road. A wrong legal word spelled disaster for twenty six years. Presumption of Delay.