2/94th Battalion Update Number 41

The VA legal screw job on Veterans claims

This comes from one of our group. Thanks Paul you really made my day once again. Ha ha

This announcement on the court ruling came from Larry Scott at http://www.vawatchdog.org/old%20newsflashes%20AUG%2006/newsflash08-01-2006-1.htm

BOMBSHELL COURT RULING ON VETERANS WITH MORE THAN ONE VA CLAIM PENDING -- When VA acts on one claim but does not address other claims, the other claims are deemed denied. VA does not have to provide veteran with notice of denied claims.

You won't find this on the VA web site.

I received this from an attorney who represents veterans in the claims process.

Information below:

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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 un-represented 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.
(b) 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.

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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:

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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.