No Notification On Closing Claim

[free_spirit_etc]

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

[free_spirit_etc]

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(, 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.

05-7155 6

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.

05-7155 7

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.

[timetowinarace]

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.

( 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

[Pete53]

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.

[Berta]

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

[timetowinarace]

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

[john999]

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.