Charles V. Shinseki

[broncovet]

This is good news for Vets where the VA failed to notify the Veteran of a decision, and I think this applies to "unadjudicated" claims when the RO decides one issue, and "blows off" other issues, as they did in my case.

http://veteranclaimresearch.blogspot.com/2...hinseki-no.html

I will post pertinent parts of this:

<h2 class="date-header">Tuesday, December 1, 2009</h2> <h3 class="post-title entry-title"> <a href="http://veteranclaimresearch.blogspot.com/2009/12/federal-circuit-charles-v-shinseki-no.html">Federal Circuit, Charles v. Shinseki, No. 2009-7024, 3.103(f), Secretary's failure to respond to argument </h3> We are presenting this decision as it addresses several issues and an explanation of 38 C.F.R. § 3.103(f), that the "RO must notify the claimant in writing of decisions affecting the payment of benefits or granting relief. 38 C.F.R. § 3.103(f). Among other things, this notice must provide the reason for the decision, summarize the evidence considered, and inform the claimant of the right to appeal. Id. " This seems like a useful quote to have on hand.

The FedCir also addresses the abandonment of a claim and the concept of the Secretary's failure to respond to an argument as a possible admission of concession.

[Vync]

That's great! Does this retroactively apply to older decisions?

I dug out my SC award letter from March 2000, which grants 40% from my appeal. The rating decision pages lists evidence, decision, and reasons and bases for all four issues where SC was granted.

The only thing it says about any other condition is on the cover letter: "You have also been found to have nonservice connected condition(s)." Evidence, decision, and reasons and bases for anything else was completely omitted.

Enclosures are: (I added the descriptions of each):

VA Form 4107 - Your Rights to Appeal Our Decision

Rating Decision

VA Form 21-8764 - Disability Compensation Award Attachment Important Information

VA Form 28-8890 - Important Information About Rehabilitation Benefits

VA Form 28-1900 - Disabled Veterans Application for Vocational Rehabilitation

I am still waiting to receive my C-file (requested Nov 6, 2009) to confirm if the VA blew off my other issues, like the lower back claim they keep denying.

Thanks

[broncovet]

Vync

Of course, I am no lawyer, but since this case is an Interpretation by the court of 38 CFR 3.103, I would guess that it would apply retroactively as long as 38CFR 3.103 was in effect at the time your case was decided.

In earlier cases, the court has decided that when a RO does not adjudicate all the Veterans claims, those not adjudicated are "deemed denied". This Federal court case, (which I will guess is precedential, someone please, if you think it is not precedential, please so state) appears to overturn this "deemed denial" stuff.

This quote, "RO must notify the claimant in writing of decisions affecting the payment of benefits or granting relief. 38 C.F.R. § 3.103(f). Among other things, this notice must provide the reason for the decision, summarize the evidence considered, and inform the claimant of the right to appeal."

..appears to make it the RO responsibility to notify the Veteran, and not the Veteran's responsibilty to figure out that when the VA never mentions the issue, that his claim was denied. JMHO

[broncovet]

I will add that it would appear from this case, that it is a Clear Unmistakable Error, as it should be, whenever a RO fails to adjuticate a Veterans claim and provide notice to the Veteran.

[Philip Rogers]

Vync - the VA is required to make a decision on any other conditions found while processing your claim. They generally, routinely, decide they are NSC and if you fail to NOD them, within the one yr required, I believe, you need new and material evidence to reopen those NSC issues.

pr

That's great! Does this retroactively apply to older decisions?

I dug out my SC award letter from March 2000, which grants 40% from my appeal. The rating decision pages lists evidence, decision, and reasons and bases for all four issues where SC was granted.

The only thing it says about any other condition is on the cover letter: "You have also been found to have nonservice connected condition(s)." Evidence, decision, and reasons and bases for anything else was completely omitted.

Enclosures are: (I added the descriptions of each):

VA Form 4107 - Your Rights to Appeal Our Decision

Rating Decision

VA Form 21-8764 - Disability Compensation Award Attachment Important Information

VA Form 28-8890 - Important Information About Rehabilitation Benefits

VA Form 28-1900 - Disabled Veterans Application for Vocational Rehabilitation

I am still waiting to receive my C-file (requested Nov 6, 2009) to confirm if the VA blew off my other issues, like the lower back claim they keep denying.

Thanks

[broncovet]

Pr

That is not what this decision says. It says the VA owes the Veteran a decision..if they decide it is NSC, then that is a denial and they have to give reasons and basis for the denial, and give the Vet an opportunity to appeal. Yes, I know the Va regurarly did this in the past and got away with it, but they should not be able to get away with it anymore, that is, if the Veteran appeals, if this federal case is precedent.

In this example, there would be no "clicking one year appeal clock" because the Va failed to render a decision, which, it has been suggested is an error, possibly CUE. As it says on the link:

"Neither 38 U.S.C. § 5108 nor 38 C.F.R. § 3.158 can be interpreted as requiring a veteran to submit new and material evidence in order to reopen a pending, unadjudicated claim."

The case goes on to suggest this is CUE, coming barely short of calling it CUE:

" In fact, the Veterans Court noted that it “could construe the Secretary’s failure to respond to these arguments as a concession of error.” Charles, 2008 U.S. App. Vet. Claims LEXIS 626, *22."

Edited February 6, 2010 by broncovet

[hurryupnwait]

This may help also

CLAIM STILL OPEN IF PROPER NOTICE OF DECISION NOT SENT TO VETERAN

§ A veteran’s claim was denied in 1969. The VA avers that a notice of decision was not sent to the veteran. In 1982, the veteran sought to reopen his claim. A September 1982 RO decision found the claim had been previously denied. The VA sent a letter only advising the veteran that his claim had previously been denied in 1969. The veteran did not appeal the decision. In 1998 the veteran, through counsel, indicated that he had never been notified of the 1969 denial and requested a formal decision on that claim. The VA’s 1998 response acknowledged failure to notify the veteran of the 1969 decision but found that the 1982 letter informing the veteran that his 1969 claim had been denied finalized the issue and that his appeal rights had expired.

In 1998 the veteran appealed to the Board. The Board denied the veteran’s claim concluding that the back condition had been denied in 1969, that the September 1982 RO decision confirmed and continued the 1969 decision denying the claim and that the notice of the 1982 decision notified the veteran of his continued denial of service connection and included appellate rights information.

On appeal, the Court found the 1982 notice inadequate because it did not provide a reason for the denial in 1969 as required at 38 C.F.R. § 3.103. Ruffin v. Principi, 16 Vet.App. 12, 15 (2002).