BVA Mischaracterized Appeal as Claim to Reopen
The BVA decision in this case mischaracterized the veteran's traditional appeal as a claim to reopen. The BVA Judge found that the veteran's service connection claim for his left ankle disorder and bilateral pes planus were not reopened because new and material evidence had not been received to reopen the claims.
The problem with the decision was that the procedural posture of the case had nothing to do with reopened claims. This case is an example of a common problem with the BVA - they simply don't look at the claim to understand its procedural posture. Here's the actual procedural posture of the veteran's claim:
July 2013: VA Rating Decision denying bilateral pes planus and left ankle condition claims.
December 3, 2013: Veteran disagrees with the VA Rating Decision and asks for an immediate appeal due to financial hardship.
July 2014: VA Rating Decision confirmed and continued the denial, but decided to call the claims "reconsideration claims", whatever that is (no such procedure or nomenclature exists in the VA appeals process).
September 2014: Veteran filed a Notice of Disagreement to the July 2014 VA Rating Decision
VA certified the appeal to the BVA, and BVA Remanded to issue a Statement of Case (SOC)
September 2015: SOC was issued, but did not characterize the claim as a claim to reopen
February 2016: BVA denies "claim to reopen" on grounds that there was not new and material evidence to reopen the claim.
The remand order in this case directs the BVA to readjudicate the appeal as what it is - an appeal of a July 2013 VA Ratings Decision - rather than what the BVA pretended it is (a claim to reopen).
Does this case sound like your VA Rating Decision or BVA Decision? If so, click here to have Attig | Steel take a look at your case.
Link to the BVA Decision on CAVC Website.
Link to the Joint Motion to Remand the CAVC Website.
OGC Attorney: Abigail J. Schopick
Veteran Representation at CAVC: Chris Attig (link to bio)
Board of Veterans Appeals Veterans Law Judge: S.L. Kennedy
Regional Office: Pittsburgh, Pennsylvania VA Regional Office
Vets’ Rep at BVA: American Legion
Date of BVA Decision: May 6, 2016
Date of CAVC Judgment on Remand: February 24, 2017