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      How to get your questions answered. A few observations, and requests of all members. All folks who come here are volunteers who do this on their own time and their own dime.To avoid burning out our best contributors please follow these guidelinesf you are reading a post and it reminds you of a question you want to ask, start a new topic, if you place your question in someone thread it will be difficult to distinguish your question from the original poster, you will get better results posting a new topic with your question. 1. Before Posting please do a search and see if your question has already been answered. If you find the answer print it out and put it in a file to use as a reference file, I find this helpful myself. 2. If you can not find the answer and you do post a question, please print out those answers and refer to them to avoid duplicate questions. 3. Refer to the Frequently Asked Questions4. Duplicate questions will come up from time to time but the keeping them to the minimum will lighten the load on the regular volunteers.5. Respect folks privacy do not request their personal phone numbers for claims help, it is inappropriate and not why they are here.6. Keep the topics focused on veterans issues, in closing Search first Search ... Ask second.it may save a lot of time or at the very least enlighten you.
    • Listen Live Every Wed 5:30 PM CST to SVR Radio, Veterans Issues are discussed with various guests.

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    • A bit about Tbird and HadIt.com for those who've asked...

      The following is on my About page, but some have been asking how this all happened. So here is my little story. Tbird US Navy 1983 – 1990 E-6 HadIt.com the website domain registered Jan 20, 1997 the domain is registered and paid for through Jan 21, 2023 at which time I plan to register it for another 15 years Lord willing and the creek don't rise. I guess the best place to start is Jan 1991; I had gotten out of the navy Dec 1990. At my separation seminar, there was a DAV rep Jim Milton he told us to bring our medical records in and he would look through them for us and let us know if we should file a claim with the VA. Well, bless his heart, he opened my medical file, reads the first insert, looks me straight in the eye, and says you will be 50% for the rest of your life and he would file the claim for me. 50% was for surgery I had in the service. True to his word he met with me and talked with me for a long time filled out my paper work and urged me to file for PTSD. I would not file the PTSD claim, nor even discuss it. By Feb 1991 I had moved to the San Francisco bay area and was staying at a friends apartment and pretty much I was just a puddle. In desperation one night I called suicide hot line, I had no job, no idea about going to the VA. They talked with me for a long time and explained to me that I could go to the local VA hospital even if I did not have insurance. Now, I know what you are thinking if I was 50% why didn't I just go to the VA in the first place, two reasons 1, this was Feb 1991 and the 50% didn't come till May and 2, even if it had come through it is unlikely that I would have had the mental acuity at the time to put the two together. I relate this here because it is where so many of our brothers and sisters are coming from, perhaps where you started. Fuzzy and unsure, in pain and sometimes homeless they come to the VA hospital for help. And that is where I ended up. Up to the pysch ward I went, blah, blah, blah, a few days later I was released with a promise of a call from the out patient program, which I would soon be entering. Blah, blah, blah, after many missed communications, and no call backs I was at the Day Hospital everyday M-F. And this brothers and sisters is where I began to learn and formulate my plan for HadIt.com. Veterans, veterans everywhere…I spent a year in the day hospital and about another year at a sheltered workshop before I got back on my feet. So I just talked to veterans everyday waiting for appointments, waiting for prescriptions, waiting for a vet rep and I started to learn the system. While in the navy I was data analyst and had to learn a 5 volume manual and just about anything you were suppose to do was in that manual. So I figured there must be a manual on how to do a VA claim or at the very least regulations. So I found out about the Code of Federal Regulations, United States Code, Veterans Affairs Manuals and so on and so forth. Of course this was 1991/1992 I was living in a tiny studio apartment in a particularly bad neighborhood, working in a sheltered workshop making a nickel per envelope I stuffed throw in PTSD and you will see that it was a difficult task for me to get somewhere where they had copies of these, let alone that they would let me look at. And there was so much knowledge around me, it was like the gold rush in those days, I could just sit on a bench a veteran would sit down next to me a little conversation later I had another nugget, I made copious notes. Phone numbers to call, ask for this guy or that guy he'll give you the straight scoop and they'd slip me a piece of paper with a number on it. You want to read this regulation or that one and another slip of paper into my hand. I spent a lot of time on those benches watching the squirrels they gathered their nuts and I gathered mine :) So I'm thinking I could put a little handbook together print it out and hand it out at the VA. Or perhaps fliers. Still formulating, time goes by, 1994/1995 I am being treated for PTSD regularly and doing and feeling much better and I go to work for a company as a marketing systems analyst and I discover the internet. Well let me tell you that was perhaps one of the most significant life changing events I have ever experienced. And I might add finally a positive one :) It seemed only natural to me that surely there must be a website that contained all the knowledge I wanted, well as it turned out not so much, lots of stuff but I wanted to get straight to the claims information and there was a lot of stuff to wade through to get to it. So taking my lesson from the squirrels earlier I started to gather, gather, gather…and learn HTML and work as a marketing systems analyst and work my claim. 1996/1997 major PTSD cork blows and unemployed. Working my claim, working the website. 20 Jan 1997 register HadIt.com domain name right after getting off the phone with the VA and saying I've had it with this. As fate would have it the old DAV board goes down just as mine opens up and folks start to wander in. So HadIt.com has two main components the website which supports the discussion board with links, articles, research resources etc. The website starts to grow, I can't tell you how many times I had to switch servers for space and features. I continue on a downward trend and in 1998 ended up back home in St Louis living in my sisters basement in therapy and working it, I swear I would have swung a dead chicken around my head at midnight naked if I thought it would have helped. The website continued to do great during this time, I just stayed in the basement bought new software, new books, and learned how to make things work and I continued to use this knowledge to make HadIt.com better. My 100% finally came through from the VA and I had a friend who is an advocate who helped me thru my SSDI claim, he was literally at my side thru the entire process and that came through for me. My therapist and sister continued to try and get me to leave the basement, but to no avail. At some point in 1998 or 1999 I put a counter on the website and was shocked to discover how many visitors we were getting. Time goes by my sister gets married and I move from the basement to the upstairs, there is much celebration that Aunt T is living in the light again. More time goes by and I settle into my life in St Louis and spend more time on the site trying new things, finding more information. 2003 I buy my own home VA loan. For years now I have just considered HadIt.com my job and I get up every morning go to the office and work for several hours, take an afternoon break and see where the rest of day takes me. I have a place in the office to use the computer and a comfortable to place to read journals and articles and take notes. Blah, blah, blah so that is my story and HadIt.com's intertwined.
    • HadIt.com Pass It On Cards

      Hi I've updated our HadIt.com Pass It On Cards. They are in a PDF format you can print them out cut them there are 12 to a page. If you have found HadIt.com helpful and would like to pass it on to other veterans this is an easy way to do it.I hope you find them helpful, feel free to leave a few anywhere veterans gather, veterans centers, veterans hospitals, public libraries, be creative. Please make sure though, that if you want to leave some at any business you ask permission first.Here you go http://www.hadit.com...it_on_cards.pdf
    • VA Training and Fast Letter Forum Index

      VA Training and Fast Letter Forum Index The following is the index with links to the various Training and Fast Letters plus a few miscellaneous. These letters are not necessarily in the original formatting. I have tried to present them in an easy-to-read form instead of some forms as originally presented. Some of the paragraphs were WAAAAYYY too long. lol - HadIt.com Member fanaticbooks Something to be aware.... Some of these letters may be rescinded, outdated, or otherwise no longer viable. I have still included them because sometimes they provide additional insight or just plain more information than the newest version. Use them wisely. The oldest letters will display at the bottom with the latest letters displayed at the top, all in sequential numbers. Coding of the letters... FL = Fast Letter TL = Training Letter First two numbers = last two digits of year of origin Training Letter http://www.hadit.com/forums/index.php?/topic/40694-va-tl-00-07/ http://www.hadit.com/forums/index.php?/topic/40693-va-tl-00-06/ Fast Letter Number Title http://www.hadit.com/forums/index.php?/topic/44262-va-fl-11-15/ http://www.hadit.com/forums/index.php?/topic/44260-va-fl-11-13/ http://www.hadit.com/forums/index.php?/topic/44261-va-fl-11-11/ http://www.hadit.com/forums/index.php?/topic/44310-va-fl-11-09/ http://www.hadit.com/forums/index.php?/topic/42151-va-fl-11-03/ http://www.hadit.com/forums/index.php?/topic/40957-va-fl-10-49/ http://www.hadit.com/forums/index.php?/topic/40958-va-fl-10-46/ http://www.hadit.com/forums/index.php?/topic/40959-va-fl-10-45/ http://www.hadit.com/forums/index.php?/topic/40960-va-fl-10-42/ http://www.hadit.com/forums/index.php?/topic/40961-va-fl-10-39/ http://www.hadit.com/forums/index.php?/topic/40962-va-fl-10-35/ 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  • 0

No Notification On Closing Claim

Question

Posted · Report post

Does anyone know if the Va not being required to notify you when they close your claim is an actual law - or is it a policy of the VA.

In our case -- we wasted precious time not knowing that my husband's case was closed. We THOUGHT it was going to the Board of Appeals because the last letter from them (August 2004) said Your appeal is being forwarded to the Board of Appeals... and my husband's conversation with the RO (June 2006) STILL led him to believe his case was open...as the RO said they would forward any evidence sent to the Board.

So now - they have confirmed that it was closed --and that his time for appeal had expired.

But what about all that time in between?

Isn't this kind of a due process thing? If they do not notify you they have closed your case -- and you think it is open -- you lose an amazing amount of time.

Good thing we decided to add evidence to his appeal -- or we would still be witting around waiting for his appeal to be heard --while the time ticked away.

Anyway -- does anyone know if this is actually a congressional law (as in they don't have to tell you they closed your case) - or is it just one of their policies?

Free

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15 answers to this question

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Dear Free Sprit

Did you file a NOD to the RO that you were appealiing there denial? It sounds like the VA is saying you defaulted your right to apppeal by not notifying them you disagree with there ruling.

If you did follow the appelate procedures. The VA cannot close a claim without first ruling. I know on the front end of a claim I experenced something similar. ThE RO refused to send me a SOC therefore not allowing the cliam to be reopened or appealed. The court ordered the RO to send a SOC.

You write the RO and BVA telling them your case is still open and you want it sent to the BVA or you will file a writ of mandamus.

Terry Higgins

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Posted · Report post

Something is wrong here-

1.Did he receive a VCAA Notice?

This is a letter that has an underlined statement that tells him exactly what he needs for the claim to succeed.

Also he should have received a VCAA Election Notice where he would check one of the boxes, sign this and return it to the VARO.

2. Did he formally file a Notice of Disagreement within one year of the last decision that denied the claim?

It seems you are saying he had an appeal ongoing-

3. Did he file a formal I-9 Appeal statement?

I suggest doing two things-

send the VA an inquery via the VA web site-

https://iris.va.gov/Scripts/iris.cfg/php.ex...p_sp=&p_li=

and ask them the actual status and location of his claim.

If you thought it had been sent to the BVA- call them at 1-202-565-5436

or email the BVA imbudsman at BVAombudsman@mail.va.gov

Also the info I have from VA says very clearly to send evidence to the BVA when the case has been transferred there.

VAROs used to consider additional evidence even with a docket number and they did in a past claim-but

things have changed- they should have clearly told you to send more evidence directly to the BVA if that is where the claim is now.

Who told you the case was closed?

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Posted · Report post

I filed a section 1151 claim. The VA said I could not do it but never sent me any official denial. I looked in my C-File and it is not there. Because I had a DRO hearing request for my PN and because I had a 1151 claim in on my DMII and PN the VA recently said I could not have two claims on the same problem at the same time, but never sent me any denial letter. How should I proceed? I know have three claims out there: a CUE, a claim for a secondary condition of DMII and a 1151. The CUE and the 1151 seem to have vanished even though I have date stamped copies of the CUE and the secondary claim. I think the VA just shredded my 1151 claim. The VA maintains since I did not appeal my DMII and PN beyond the DRO that I settled the 1151 claim at the same time as I signed off on the DMII and PN. Nowhere was there any mention of the 1151 claim when I signed off on further appeals on the DMII and PN. How do I track down my Section 1151 claim or a reference to it? At one time the VA said they had it.

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Posted · Report post

The VA CAN close claims without notice that haven't been decided when they have approved another claim. I saw something on this a while back. I think it was on VA Watchdog. The court ruled it could be done. Can't remember the details but will try to find it.

Time

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Posted · Report post

That is interesting-I am unaware that they can just close a claim-

A veteran however has a duty to prosecute a claim-

and if they don't then the VA could close it.

John- that is interesting too what you had said.

For my SMC CUE claim the VA sent me a letter stating the veteran had never filed a Sec 1151 claim in his lifetime.

I got tough and replied "the hell he didnt"-a copy of his claim was in the copy I got of my c file and I re-opened his charges- word for word when he died under Sec 1151.The AM he died the 800# told him his 1151 was at the rating board.

Every time they make some odd statement like this about a claim, the veteran has to pounce on them.

If I were you I would send them a query via the VA inquery system to get the status of those claims.

What they told you is unacceptable.

I think claims are starting to be handled just like evidence-if they say they dont get it , they dont have to work on it.

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Posted · Report post

Free Spirit - I think we need a little more information. Did you have only one issue pending in 2004 on a claim? You stated that you received a letter saying your claim had been sent to the BVA KEEP THAT LETTER for it could be your piece of Gold in this issue. If you have such a letter for the claim you had pending in 2004 and have not missed any dates from the BVA then you will win in this case. Are you sure your claim was not denied by BVA and you missed the date to appeal to CVA? Give us a summary of the actions you took on this claim and maybe we can help direct you down the right path.

Ricky

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Posted · Report post

The case Terry is talking about is this one (I think)

Gotta run --have school.. but will respond later..

United States Court of Appeals for the Federal Circuit

05-7155

JAMES L. DESHOTEL,

Claimant-Appellant,

v.

R. JAMES NICHOLSON, Secretary of Veterans Affairs,

Respondent-Appellee.

Francis M. Jackson, Jackson & MacNichol, of Portland, Maine, argued for claimant-appellant.

John S. Groat, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; and Bryant G. Snee, Assistant Director. Of counsel on the brief were Michael J. Timinski and Amanda R. Blackmon, Attorneys, United States Department of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge Lawrence B. Hagel

United States Court of Appeals for the Federal Circuit

05-7155

JAMES L. DESHOTEL,

Claimant-Appellant,

v.

R. JAMES NICHOLSON, Secretary of Veterans Affairs,

Respondent-Appellee.

___________________________

DECIDED: July 27, 2006

___________________________

Before, GAJARSA, DYK, and PROST, Circuit Judges.

DYK, Circuit Judge.

James L. Deshotel seeks review of the decision of the United States Court of Appeals for Veterans Claims (“Veteran’s Court”) dismissing his appeal for lack of jurisdiction. We affirm.

BACKGROUND

Deshotel served on active duty in the United States Army from October 1965 to May 1969. During his service, he was involved in a car accident resulting in a cerebral concussion and a dislocated shoulder and fractured clavicle. In May 1969, Deshotel filed a claim for disability compensation benefits for his injuries. The Department of Veterans Affairs (“VA”) regional office (“RO”) granted service connection for Deshotel’s shoulder injury, finding the injury to be 20% disabling but did not grant service

05-7155 2

connection for his residual head injury claims. There is no contention here that this May 1969 claim included a claim for psychiatric disability.

In July 1984, Deshotel filed an application to reopen his denied claim for service connection for residuals of his head injury and, it appears, for an increased disability rating for his back and shoulder injuries. Deshotel contends that under our decisions in Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004), Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004), and Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001), the VA was required to construe this pro se claim sympathetically to include a claim for psychiatric disability as well as a claim for physical disability resulting from the head injury. In January 1985, after conducting a medical examination (including a psychiatric examination), the RO granted service connection for “status post head trauma with post traumatic headaches,” finding the injury to be 10% disabling. The RO’s decision did not specifically address any secondary claim for psychiatric disability, although it did note in its narrative that the “VA exam shows no psychiatric symptomatology noted at present time.” Deshotel did not appeal from this rating determination.

In August 1999, Deshotel again sought to reopen his compensation claim, this time to include claims for “memory loss and depression due to head/brain disease.” In addressing this claim in September 1999, the RO explicitly treated Deshotel’s claim as including a psychiatric claim based on new and material evidence. The RO increased Deshotel’s disability from 10% to 30% for the head trauma and headaches, but deferred a rating as to memory loss and depression (the “psychiatric” disability claims) secondary to the service-connected head injuries until further medical records were available. In March 2000, the RO denied service connection for Deshotel’s psychiatric disability

05-7155 3

claims. Deshotel then began the appeal process by filing a notice of disagreement (“NOD”). In response, on October 20, 2000, the RO issued a new decision in which it found a 70% service-connected psychiatric disability for “mood disorder, personality change and cognitive disorder secondary to traumatic brain injury with post-traumatic headaches,” effective from August 4, 1999, the date on which Deshotel sought to reopen his claim. J.A. at 5.

Deshotel then filed a second NOD, arguing that the effective date of the 70% psychiatric disability determination should have been July 20, 1984—the date that Deshotel requested that his claim be reopened. The RO notified Deshotel that it construed his second NOD as raising an allegation of clear and unmistakable error (“CUE”) in the RO’s January 1985 decision—specifically, an allegation that the 1985 decision was erroneous because the psychiatric examination “failed to identify any psychiatric disability” even though the evidence indicated that Deshotel in fact had a psychiatric disability at the time. J.A. at 248. The RO found no CUE in the January 1985 decision.

Deshotel appealed to the Board of Veterans’ Appeals (“Board”). The Board concluded that the RO’s January 1985 decision had “implicitly” denied any claim for service connection based on psychiatric disability and that there was no CUE in that decision. Deshotel then appealed to the Veteran’s Court. Deshotel made two arguments to the Veteran’s Court. First, Deshotel directly challenged the October 2000 decision, arguing that the RO “erred by selecting an effective date in 1999 and not in 1984 . . . and that [Deshotel’s] 1984 claim and the [1985 RO] decision ‘[gave] rise to an informal claim of psychiatric disability’ that was not adjudicated until October 2000 . . . .”

05-7155 4

Deshotel v. Nicholson, No. 03-517, 2005 WL 496685, 19 Vet. App. 465, at *3 (Feb. 3, 2005). Second, Deshotel argued CUE in the 1985 decision because the RO “overlook[ed] the significant findings of the psychiatric report . . . .” Id. The Veteran’s Court determined that it lacked jurisdiction over both of these arguments. With respect to Deshotel’s first argument, the Veteran’s Court decision is less than clear, curiously and incorrectly stating that “there has been no Board decision on the issue of entitlement to an effective date prior to August 4, 1999 . . . .” Id. at *5. Nonetheless, we understand the Veteran’s Court to have held that it lacked jurisdiction to consider an appeal from the RO’s 1985 decision because that decision had become final and “only a claim of [CUE] could have resulted in an effective date prior to the January 1985 regional office decision for the October 2000 award . . . .” Id. at *4. With respect to Deshotel’s second argument regarding CUE in the 1985 decision, the Veteran’s Court held that this specific CUE argument (that the RO overlooked findings that had been made in the psychiatric report) had not been raised to the Board and that Deshotel had instead argued a different CUE to the Board (that the VA medical examiner erred by failing to diagnose or making a finding of psychiatric disability despite the alleged evidence of the disability). Thus, the Veteran’s Court dismissed Deshotel’s appeal for lack of jurisdiction. Deshotel timely appealed to this court, reasoning under the first argument. We have jurisdiction under 38 U.S.C. § 7292 because Deshotel alleges legal error in the Veteran’s Court decision. Szemraj, 357 F.3d at 1374-75.

DISCUSSION

The effective date of an award based on a veteran’s request to reopen a final decision on the basis of new and material evidence is generally the date that the

05-7155 5

application to reopen was filed. 38 U.S.C. § 5110(a) (2000); Sears v. Principi, 349 F.3d 1326, 1330-31 (Fed. Cir. 2003). In contrast, the reopening of a final decision based on CUE “has the same effect as if the [reopening] decision had been made on the date of the prior decision.” 38 U.S.C. §§ 5109A(:angry:, 7111(B) (2000). Generally, an RO’s initial determination will become final unless the veteran appeals that determination to the Board. Cook v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002) (en banc). In this case, if the RO’s 1985 decision was a final decision, then Deshotel could not claim 1984 as the effective date for his psychiatric disability unless he could establish CUE in the 1985 decision. However, on appeal to this court, Deshotel has elected not to pursue a CUE claim. Instead, Deshotel contends that the 1985 decision was not final as to his psychiatric claim because that claim was never explicitly addressed in the 1985 RO decision. Therefore, he argues, the 1985 psychiatric claim remained pending and unadjudicated until the RO’s October 2000 decision, which granted the psychiatric claim but rejected the 1984 effective date.1 Appellant’s Br. at 8-9. We conclude that the 1985 decision constituted a final decision on the psychiatric claim.

Where the veteran files more than one claim with the RO at the same time, and the RO’s decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal

1 None of the cases relied upon by Deshotel, i.e., Moody, Szemraj, or Roberson, involved an allegation that an implied claim remained pending before the VA as a result of the RO’s failure to read a claim sympathetically.

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period begins to run.2 We considered this exact issue in Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005), although the argument regarding a pending unadjudicated claim was made there by the government rather than the veteran.

In Andrews, the veteran, proceeding pro se, filed an application for disability benefits and, in 1985, was awarded a partial disability rating of 30% for post-traumatic stress syndrome by the RO. Id. at 1279. Later, the veteran obtained counsel and challenged the RO’s rating determination on CUE grounds, contending that he should have been awarded a higher rating. Id. The veteran’s CUE claim was denied by the Board. Id. The Veteran’s Court found no CUE in the RO’s rating determination. Id. at 1280. The Veteran’s Court also held that the veteran had waived any argument that the RO committed CUE because the RO did not construe the veteran’s previous pro se application as including an implied claim for total disability based on individual unemployability (“TDIU”) under Roberson. Id. at 1280-81.

The veteran asserted that the Veteran’s Court had erred in finding that the CUE claim concerning TDIU had been waived. In response, the government contended that even if the claim had been preserved and if the RO had erred in failing to read the veteran’s disability claim sympathetically to include a TDIU claim, a CUE claim would not be the proper path for correcting that error because the RO had not specifically addressed the TDIU claim and it was still pending before the RO awaiting adjudication. Id. at 1281. We explicitly rejected the government’s contention that the implied TDIU

2 In order to appeal, the veteran must file a NOD within one year from the date of the RO’s initial determination. 38 U.S.C. § 7105(B)(1). Here no NOD was filed with respect to the 1985 decision.

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claim was pending and unadjudicated. Id. Relying on Roberson, 251 F.3d at 1383-84, we held that where an RO renders a decision on a veteran’s claim for benefits but fails to address one of the claims, that decision is final as to all claims; the RO’s failure to address the implied claim “is properly challenged through a CUE motion,” not a direct appeal.3 Andrews, 421 F.3d at 1281; see also Cook, 318 F.3d at 1339 (holding that “[t]he statutory scheme provides only two exceptions to the rule of finality” of VA decisions, a CUE claim and a claim to reopen based on new and material evidence).

Thus under the rule articulated in Andrews, if Deshotel believed that the RO improperly failed to address his claim for psychiatric disability benefits when it granted service connection for his head injuries in 1985, his remedy was either to file a timely direct appeal or to file a CUE claim seeking to reopen the 1985 RO decision. Here, no direct appeal was filed, and a CUE claim was abandoned. The Veteran’s Court therefore properly dismissed Deshotel’s appeal for lack of jurisdiction.

CONCLUSION

For the foregoing reasons, the decision below is affirmed.

AFFIRMED

COSTS

No costs.

3 In Andrews, after treating the 1985 decision as final, we went on to hold that although the VA was required to construe all of the pro se veteran’s pleadings (including CUE claims) sympathetically under Roberson, that requirement did not apply to pleadings filed by counsel. Andrews, 421 F.3d at 1283. Thus even if the RO in 1985 had failed to sympathetically construe the veteran’s pro se application, counsel’s failure to raise this error in the subsequent CUE motion was fatal. Id.

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Posted · Report post

Okay, I found it.

http://www.vawatchdog.org/old%20newsflashe...8-01-2006-1.htm

Larry,

A new case decided on July 27 by the U.S. Court of Appeals for the Federal Circuit (Fed. Cir.) contains a bombshell for veterans and their dependents.

The Fed. Cir. held that "[w]here the veteran files more than one claim with the RO at the same time, and the RO’s decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run." (citing Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005)).

This means, in contravention of 38 U.S.C. Sec. 5104 and 38 U.S.C. Sec. 3.103, that VA does not have to provide the claimant with notice of the claim or claims that have been "deemed denied" or the reasons for the denials, and the period in which to submit a notice of disagreement with the claims "deemed denied" begins to run from the date of the decision on any of the other simultaneously submitted claims.

Thus, an unrepresented or poorly represented claimant could have the time to appeal the "deemed denied" claims run out without even knowing that the claims had been denied!

Here is a link to the case: http://www.fedcir.gov/opinions/05-7155.pdf

Here are 38 U.S.C. Sec. 5104 and 38 U.S.C. Sec. 3.103:

§ 5104. Decisions and notices of decisions

(a) In the case of a decision by the Secretary under section 511 of this title [38 USCS § 511] affecting the provision of benefits to a claimant, the Secretary shall, on a timely basis, provide to the claimant (and to the claimant's representative) notice of such decision. The notice shall include an explanation of the procedure for obtaining review of the decision.

(:angry: In any case where the Secretary denies a benefit sought, the notice required by subsection (a) shall also include (1) a statement of the reasons for the decision, and (2) a summary of the evidence considered by the Secretary.

§ 3.103 Procedural due process and appellate rights.

(a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3.

(B) The right to notice -- (1) General. Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice shall clearly set forth the decision made, any applicable effective date, the reason(s) for the decision, the right to a hearing on any issue involved in the claim, the right of representation and the right, as well as the necessary procedures and time limits, to initiate an appeal of the decision.

---------------

I asked for a clarification about this: Would this apply to claims that have absolutely nothing to do with each other? Example...I file a claim for injury to hand. I then file a claim for tinnitus. A ruling comes down on the hand, but no ruling on tinnitus. Would the claim for tinnitus be automatically denied? Or is this just with claims that relate to each other?

Attorney's answer below:

---------------

With regard to your question, your example is exactly correct. If a veteran files claims for a back disability, tinnitus and a psychiatric disability, all at the same time, and only one of those claims is adjudicated, the others are "deemed denied" under the holding of this case.

The most damaging thing to the veteran is that he or she would never receive notice from VA that the other claims were "deemed denied" and that the appeal period had begun to run on those claims. If no NOD is submitted within 1 year, the decision becomes final, and the veteran would have to submit new and material evidence in order to reopen those claims. If any of those claims are eventually granted, the effective dater could only be the date of the request to reopen those claims, rather than the date of filing for the original claims.

Another veterans' attorney has also brought up the problem of how a veteran could submit a claim for CUE (clear and unmistakable error) with specificity, as the law requires, when there has been no reason given for the denials.

As I told you, I believe this case flies in the face of 38 U.S.C. Sec. 5104 and 38 C.F.R. Sec. 3.103, which require notice to the claimant of all VA decisions affecting benefits.

---------------

Larry Scott

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Posted · Report post

For all of those who have been put off for treatment or tests they should ask again. The VA just got its money for the year and can do stuff they could not last month.

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It was a bombshell with some discussion at hadit -as I recall-

I guess I am assuming that freespirit is talking about one claim- not an additional claim that was denied- I am not sure.

Men and women-

The NVLSP has provided some insight into these two decisions (De Shotel and Andrews):

http://72.14.209.104/search?q=cache:YrcjB5...=1&ie=UTF-8

Also- please note this -an important part of the NVLSP statement:

"In Richardson v. Nicholson, 20 Vet. App. 64 (2006), the CAVC held that appellantscan argue that the failure to adjudicate a claim constitutes CUE. The Court held that the VA is required to determine whether the claim was or was not adjudicated. If the claim was adjudicated then the VA is required to consider the current CUE claim. If a claim should have been adjudicated but was not then the VA is required to now adjudicate that claim. This is a notice of disagreement because an earlier effective date should have been established because the rating decision dated [insert date]should have adjudicated this issue. If you determine that the above cited rating did consider this issue, the appellant contends that the failure of the rating to adjudicate this claim constitutes clear and unmistakable error. Please note that the appellant was never provided specific notice of this decision. See 38 U.S.C. § 5104. In the alternative, the appellant argues that the claim was still pending from the originaldate of claim when benefits were eventually granted. The veteran seeks appellate review. "***************************************************************************

******************** ___________________________ PETER S. GAYTAN, Director National Veterans Affairs and Rehabilitation Commission 3

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Posted · Report post

Free,

I guess the main question is whether your claim was a single claim by itself or did another issue get a decision at the time?

If it was a single claim, then you must be notified of a decision or the claim is still open. That doesn't seem to be the case if there was more than one claim and one was decided though.

On another note, if you thought that your claim was in appeal you must have gotten a decision at some point and filed the appeal. In this case it should be an active claim and thus need a decision before it can be closed. A decision requires that the claimant be informed.

So I guess I'm saying we need more info to give you a proper answer.

Time

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Posted · Report post

I filed a section 1151 and never got a denial letter. The VA did tell me that I could not have two claims on the same subject at the same time. I was appealing a denial of upper extremity PN and had a 1151 for the VA not recognizing and diagnosing my DMII for 4 years after my AO Registry Exam. Now they deny that the 1151 even existed. Perhaps I should file an NOD before the time runs out. I think my claim went into the shredder again. This would not be the first time.

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Thanks to everyone --some good information here.

I have been looking for all different angles on this --and seem to keep running into brick walls. It is certainly a maze. Once you think you find an answer - that answer leads to another wall.

Basically --

My husband filed for disability when he retired in 1998. He appealed several of those decisions. And most of them were finally settled. But it looks like he appealed once. Filled out the form and checked a box and stated the conditions he was appealing. His arguments were in his NODs. On the BVA form he just listed the conditions he was appealing. A couple of them bounced back and forth between the BVA and the RO without him doing anything else.

In 2001 he filed a claim for lung cancer. (Was diagnosed in 2000 - but was misinformed as to the type --i.e. slow growing) It was denied in 2003 and he filed an NOD. He did not request a de novo review -- but the Statement of claim said it was a de novo (although it was the same old stuff). He recieved the SOC (psuedo-de novo) in August 2004. It did tell him about appealing. But then a few days later he recieved a letter that stated that his appeal was being sent to the BVA. The letter did not say which appeal -- so - since the only appeal he had filed (by the NOD) since 1999 was the lung cancer -- that was what he thought was sent to the Board.

We had talked several times about his claim - always beleiving that it was sent to the Board. So for two years --he waited for the backlog to get to him.

This June we decided to try to strengthen the case if we could. He called the Board and they said it was not there. So he called the RO - and they informed him that his case was still there - and when he asked if he could add evidence - they said he could send it to them - and they would forward it to the Board with his case. He even asked if they would have to review it before sending it to the Board and they said - NO.

So we sent them a letter re-iterating the conversation - and asked them to hold the appeal for a few weeks to give us time to submit additional evidence.

Then - in August - the Senator's Office that we have talked to told my husband they had been informed his case had been closed.

So we wrote the VA and asked about the status of his claim. If it was opened or closed. When it was closed (if it was) - and why?

We haven't heard back from them on that.

But they did send us a letter telling us that in order to re-open the claim they need new and material evidence that must relate to the reason it was initially denied. And it says that the claim was denied in 2003 and the appeal period had ended -- and the decision was final.

We did get a letter from the Senator in which the VA told HIM that the appeal that was sent to the Board that my husband THOUGHT was the cancer claim was actually a dental claim (he had appealed that one in 1999). I am glad they can keep them all straight - because we sure didn't.

They use all that cut and past crap -- so you don't know what really applies and what doesn't. And 'you appeal for DENTAL" would have been much more clear than "you claim is being sent..." which could lead a reasonable person to think it was the claim they had been actively appealing.....not some long ago yo-yo claim...still bouncing around the VA.

Oh..and they still haven't explained that to US yet - just the senator. And the letter to the senator said his claim had been reopened - and that he was filing for DIRECT service connection.. But the letter to us was the cut and paste -- your claim was denied for... and in order to reopen it....

I have looked at the possibility of filing equitable tolling - in that he was misled into letting a filing deadline to pass -- not sure about that - and it looks like to do that - he would need to file the appeal NOW -- as to not do so would not be filing late - it would be not filing at all. But that deadline really looks like a sacred cow.

And after reading some BVA decisions - it looked like we might be able to argue that his claim for DIRECT service connection was NOT adjudicated - as they failed to address it. They did say his disease wasn't diagnosed until 2000 (retired in 1998) but the regs on postservice inital diagnosis do not preclude granting direct service connection for disease diagnosed after the service.

But the decision we have just been talking about seems to weaken that argument - unless we can file a CUE - in that they failed to acknowledge, address, or adjudicate the direct service connection portion of the claim.

They DID acknowledge it initially ---stating You claim for lung cancer TO INCLUDE as secondary to asbestos exposure has been recieved."

But all the other communication - including both the denial and SOC stated "Lung cancer DUE TO asbestos exposure..."

Even Now - even though we are AGAIN telling them we want to claim for DIRECT SC - they still tell us (copy and paste style) that to be MATERIAL - the new evidence has to relate to asbestos exposure...in order to reopen the claim.

So maybe if we file that it is unadjudicated - they will finally at least acknowledge the CLAIM.

It seems to very much prejudice the case if they fail to even address the in service incurrance.

And there are LOTS of cases in the BVA on cancer diagnosed post service being granted DIRECT SC based on the growth rates of the type of cancer -- which was our position -- so it is not like it is a rare or unusual claim at all.

The duty to assist letter he got back in 2002 just told him what he needed to do to prove asbestos exposure --and did not tell him anything he needed to substantiate in service occurance.

But I also have an issue with the fact they can close your claim and not notify you. I know they cna do that, but was wondering if that was a policy or law. It does seem to deny you some type of due process -- as IF my husband had recieved a letter in 2004 that his case had been closed -- he would have responded immediately - and if nothing else - at least reopened the claim TWO YEARS AGO!

But all the way up through this summer - he was playing the waiting game -

And it seems like even if they don't have to send you a letter and tell you they closed your claim -- when you call and ASK about your claim - the nice thing to do would be to tell you it was closed -- instead of telling you to send the info for them to forward to the Board.

So even the time between the phone call in June and the reciept of our evidence (which may or may not have reopened the claim - depending on who you talk to) on August 2 (we mailed July 31) -- we may have lost.

Free

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Posted · Report post

Did you have a service officer? It sounds like you were fed a diet of BS and smoke. You have to ask for a BVA appeal via a Form 9. The VA will not just send your claim to the appeals forum without you asking for it. They often mess up this part by sending your appeal to the wrong body. Like I asked for a DRO and the VA tried to send my claim to the BVA but I caught them before they could do it. Have you ever gotten a copy of you C-File or even seen it? If you don't prod the VA via a NOD and an appeal they do nothing but let the clock run. If you have an SO they should have told you to appeal or notified you of your options. The VA will let your claim die if you do not actively appeal rating decisions. When you file an NOD they are supposed to send you the Form 9.

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The problem is that we know that NOW -- that apparently he should have filed a Form 9 to "perfect his appeal" But at that time - he took the letter telling him that his appeal was being sent to the Board - as just what it said - that his appeal was being sent to the Board. And the only thing he had appealed within the previous couple of years was the lung cancer. He didn't assume the RO would send his appeal to the BVA without asking for it. But when he got the letter stating his appeal was being sent to the Board - he thought it meant exactly that.

I can really see how he was misled by that - as his files seem full of letters that say one thing - and then say another. It just seemed like the regular ambiguous double talk from the VA. A letter saying you have to appeal - followed by a letter a few days later saying your appeal is already being sent to the Board.

They won't let you file an NOD or appeal without YOU stating WHAT you are appealing. Yet THEY can send a "your appeal is being sent to the Board letter" without telling you WHAT is being sent to the Board.

He does have a VSO - kind of -- their name is on his files.

Free

Did you have a service officer? It sounds like you were fed a diet of BS and smoke. You have to ask for a BVA appeal via a Form 9. The VA will not just send your claim to the appeals forum without you asking for it. They often mess up this part by sending your appeal to the wrong body. Like I asked for a DRO and the VA tried to send my claim to the BVA but I caught them before they could do it. Have you ever gotten a copy of you C-File or even seen it? If you don't prod the VA via a NOD and an appeal they do nothing but let the clock run. If you have an SO they should have told you to appeal or notified you of your options. The VA will let your claim die if you do not actively appeal rating decisions. When you file an NOD they are supposed to send you the Form 9.

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