free_spirit_etc

Hi everybody! Been busy as heck -- teaching 10 classes this semester and taking 2 classes! Ack! Am working on my husband's claim - fiding additional supporting evidence. I ran across this today. It might be useful for someone else who is filing a claim for lung cancer / asbestos exposure -- who also smokes. The base doctor had noted in my husband's medical records on two occassions that he had an 80 times increased risk of cancer from smoking / asbestos combined. He declined writing an actual "opinion" --(was going to and then said the base attorney said they can't) but we are still pushing the "opinion" DOCUMENTED in the medical records. So have been looking for valid information to support the medical record documentation. Found THIS site http://www.cs.amedd.army.mil/iso/Asbestos/sld039.htm Which states: If you smoke and have exposure to asbestos -80 times greater If you smoke and have no exposure to asbestos - 22 times greater If you don’t smoke and have exposure to asbestos - 5 times greater If you don’t smoke and don’t have exposure to asbestos - normal risk Smoking compounds the effects of asbestos on your body. The best solution is to stop smoking. SO we found something to back the medical record documentation of the 80 times greater risk. This is from US Army Medical Department Center & School Portal - which sgould be a "reliable" source for the VA http://www.cs.amedd.army.mil/ (Home page)

Thanks for the advise Pete and Phillip. It helps! Free

When I have been researching CUE claims - I have also noticed that the BVA sometimes RECONSIDERS the claim -- grants the benefits -- then dismisses the CUE (because the benefits requested have ALREADY been granted) -- then POOF - there is NO CUE. I guess it is a semi- win-win --as the vet gets what they were seeking and the BVA gets to not have a CUE. Free

Here are a couple more links on it http://durbin.senate.gov/record.cfm?id=255293 http://obama.senate.gov/news/060509-va_war..._disabled_vets/

From what we can find - you don't actually file anything special. Since the RO was found to have significantly less awards and lower awards than other ROs --they were required to notify claimants of their right to refile -- have their cases reopened -- etc. etc. --but it seems like the actual process is the same -- you have to appeal, open with new and material evidence, etc. I don't think they have to do anything special with your claim (aside from the fact that they MIGHT be under some pressure by Congress to perform better) -- I think they were just required to send information to the vets (which they didn't do in our case) and go through the motions of informing vets of their rights. Free

Bob - We have also heard the same thing. The website for Senator Obama (Illinois) includes press releases about the issue. We have also heard that my husband was supposed to get a letter -- but he never did. They have a special link on the VA website for you to contact them. http://www.vba.va.gov/SpecialOutreach/ My husband used that link and told them he thought there were errors in his claim..etc.. and they sent back an impersonal cut and paste response (who would have thunk it) that basically said that the difference in payments were based on differences in levels of disabilities --and they everyone got the amount they deserved no matter where they lived. http://obama.senate.gov/ Illinois vets can reapply for benefits Tuesday, May 9, 2006 By Josh Noel - Chicago Tribune Wayne Macejak, a gray-haired Vietnam-era veteran, said he has seen it time and again: fellow Illinois veterans fighting for their benefits. "With the VA, everything seems to be about money," said Macejak, chairman of the American Legion's rehabilitation committee in Illinois. "They just sit back and wait for the veterans to come to them." Flanked by Macejak and other veterans Monday in downtown Chicago, U.S. Sens. Barack Obama (D-Ill.) and Richard Durbin (D-Ill.) announced that the U.S. Department of Veterans Affairs is sending letters to 326,000 veterans in six states, including 62,000 in Illinois, where VA benefits have been the lowest. The letter tells veterans about benefit disparities and how to reapply if they believe they were shortchanged or if their conditions have worsened. A report by the VA office of inspector general showed that in 2004, the most recent figures available, Illinois veterans received the lowest average disability payments in the nation, $6,961. In New Mexico, the state with the highest average benefit, veterans received an average of $12,004. At the Vietnam Veterans Memorial Plaza on Wacker Drive, the senators said there's no one reason why Illinois veterans receive so little compared with veterans in other states. But they said the disparity is caused in part by a lack of training for VA workers and not enough outreach. "For far too long, where a veteran lives determined how much compensation they received," said Obama, who sits on the Senate Committee on Veterans Affairs. "That's unfair, and it's wrong." The VA was required to send the letter as a result of an amendment offered by Durbin and Obama to the military construction and veterans affairs appropriations bill. Acknowledging that the VA would not have sent the letters on its own, spokesman Terry Jemison said in a written statement, "This provision of law requires us to selectively conduct additional outreach to veterans based on where they live." Durbin said he heard concerns that too many new claims would overburden the agency. "The Veterans Administration said, `You know what's going to happen when you send out 300,000 letters? We're going to be swamped by veterans,'" Durbin said. "Well so be it. It's better that there'll be a hardship on the VA than more hardship on Illinois veterans." Veterans in Indiana, Michigan, Connecticut, Ohio and New Jersey also will receive the letter. Free

I am actually looking for information for my ex-father-in-law (my son's grandfather). His wife recently died --so he's struggling at the moment. He is living on about $900 a month. He gets $38 veterans pension. He is a World War 2 Vet. He is 95 years old -- my son is staying with him now. Very poor hearing and eyesight -- gets around okay for a 95 year old --but not good compared to the rest of the world. I was starting to check into the housebound and A & A benefits -- not as service connected -- but as what I think is called an Improved veterans pension - where they make up the difference between your income and their minimum standards for your category. I see where they also have an added amount for "early war" vets. I am not sure if this means WWII or not. I am looking for the forms for him. Also thinking I should go ahead and help him send a letter -to open the claim and get it going. Does anyone have any experience in one of these claims> Free

Thank you Berta. As the compliment came from the Master Researcher - I consider that a real honor. Free

And I found it here at hadit! Free

John - Thanks - but I am not sure if we can do that at this point - as they are reopening the claim. Won't we have to wait for them to make another decision before we ask for a review? But we certainly will ask for one as soon as we can. We are working on the IMO Free

They KIND of acknowledged that electricians are exposed to asbestos - because their denial even stated "Your service medical records show you were an electrician, HOWEVER there is nothing such as an occupational survey or participation in an occuaptional health surveillance program that would indicate exposure to asbestos. " This pretty much mimics what the doctor said. But again - the Air Force did not start such programs for asbestos until several years after he cross trained into another filed. The VA already has two letters form my husband which indicate specific things he did as an electrician to expose him to asbestos. Also - documented in his medical records with the Base dcotors (post service) are: Written Notes in Chronological Record of Medical Care 10/3/2001 – “CXR rpt seen > Upper Lobe Scarring & 3 cm Left Lung SPN Also likely asbestos exposure as electrician 1969 – 1982 N.B. – Chart & Consult & pt. Is in Error & pt. In Non-Small Cell CA & Not Small Cell. Important Differences explained to pt. e. g. Poss. Adeno CA unk 1 ° ? “ New Patient Note 10/10/2001 – – Oncologist “The patient’s past history is somewhat remarkable in that he worked as an electrician in the air force and was exposed to asbestos.” Written Notes in Chronological Record of Medical Care 11/5/2003 - Hx of Lung Cancer. S/P resection at SLU September 00 3 cm & LLL-ectomy. Adeno CA. Smoker & Asbestos Exposure. Impr. – 1. Poss Adeno CA Stump Recurr 2. 1st CA 2000 3. Exposure Cigs & Asbestos > 80 x’s Risk It is odd that they disregarded all that evidence --on the basis that he wasn't involved in a surveillance program that didn't even exist at the time. Adenocarcinoma is one of the cancers that is linked to asbestos. We have since obtained: 4 buddy statements which state that a. they were always doing electrical work that exposed them to asbestos b. that no safety programs were in place at that time (screening, respiratory protection, etc. We also have obtained: 1. A job description for Air Force electricians which states they are likely to be exposed to asbestos. 2. Documentation which shows that the air Force did not start their asbesots management programs until the mid 80s 3. A document which shows that Air Force electricians are now required to be in the respiratory protection programs. 4. Records showing the buildings which have had asbestos abatement at the last base he was on as an electrician. 5. Documents from OSHA showing that the Construction Standard for asbestos didn't start until the mid 1980's - and that the PEL levels changed significantly over time (i.e. exposure that was allowable in the 70's under the General Industry Standard (which did not include construction workers) is NOW considered to be dangerous -- I think we have enough to show exposure IF we can get them PAST looking only for evidence which we cannot provide (which is the health screenings that were not done at that time) Free

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

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

No. He didn't request a DRO -- but his Statement of Case said that it was a de novo review by a DRO. But it was pretty much just a repeat of what the Denial Letter stated - which was a repeat of what the C&P doctor type person (who never even saw him) stated. And a large question I had was -- my husband's strongest premise has always been that his cancer started in the service -- but they just blew that off - and just made a decision on whether his cancer was caused by asbestos (and the C&P examiner said that there was no evidence of asbestos exposure because he didn't have any medical survellience or screenings (which the Air Force didn't start until the mid 80's --my husband was an electrician from 1970 - 1983). AND they continue to NOT acknowledge that my husband is filing for DIRECT service connection (incurred IN service) - and now they said the new evidence HAS to relate to why he was denied in the first place. So -if they restrict your evidence to only those matters -- he still won't get the DIRECT portion of his claim heard. TO me - that seems to prejudice the case. Free

http://www.hadit.com/library/law/971178colayongvtogo.htm AOAS COLAYONG, APPELLANT, v. TOGO D. WEST, JR., SECRETARY OF VETERANS AFFAIRS, APPELLEE. 12 Vet App 52412 Vet. App. 524; 1999 US App Vet Claims LEXIS 8851999 U.S. App. Vet. Claims LEXIS 885 No. 97-1178 August 17, 1999, Decided UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS Before NEBEKER, Chief Judge, and HOLDAWAY and STEINBERG, Judges. Disposition REVERSED IN PART AND VACATED IN PART AND REMANDED. Counsel Marshall O. Potter, Jr., for the appellant. The Court holds that the questions that the RO presented to that orthopedic specialist in the engagement memorandum were fatally flawed in that a "question may not suggest an answer or limit the field of inquiry by the expert." Bielby v. Brown, 7 Vet. App. 260, 268-69 (1994); see also Austin v. Brown, 6 Vet. App. 547, 552 (1994). The Secretary has conceded the impropriety of that memorandum. Under _CFR_4.23 38 C.F.R. § 4.23 (1998), "rating officers must not allow their personal feelings to intrude . . . and fairness and courtesy must at all times be shown to applicants". That regulation was violated by the engagement memorandum prepared here. Moreover, the memorandum also violated a requirement in _CFR_4.1 38 C.F.R. § 4.1 ("it is thus essential, both in the examination and in the evaluation of disability, that each disability be reviewed in relation to its history" (emphasis added)), because it gave the examiner discretion as to whether to review certain prior medical records. See Green (Victor), supra ("thorough and contemporaneous medical examination" is one that "takes into account the records of the prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one").

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.

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

Thanks for all of your advise! We are working on it..working on it... Free

You certainly are luckier than we are Army. Seems like most of the doctors we talk to are associated with hospitals, etc. which don't "allow" them to give "expert" opinions. One doctor told us to get an independent doctor (with no affiliations). But we have got our feelers out. Have contacted my attorney to see if he can recommend us to an attorney who refers SSA claims to doctors (which was suggested here at HAD IT ) I have also emailed several of the second opinion on cancer websites - who have referred me to people --who have in turn referred me to people. I think one thing that MIGHT scare doctors away is because we are seeking an opinion on the onset time and etiology of cancer..they see "lawsuit" and "malpractice" claim....even when you tell them it is not. Free

Some good info!!!!!!!!! :D Free

Oh..believe me I don't mind pointing that out to them AGAIN!!But it also seems like a catch 22 -- because then it is not new.....it is just material. Free

We MAY get that - but we have been focusing on trying to get a doctor's opinion that his cancer STARTED in the service...which has always been the MAIN focus of his claim (from his point of view)...and probably easier to "prove" than the asbestos. But it sounds like they are trying to restrict the evidence to only addressing the secondary connection. Free

Hi Everyone! I've been as busy as heck since school started! We just got a letter from the VA -- I guess it is our letter that is "supposed" to tell us exactly what we need to send to substantiate his claim for lung cancer. However, it mostly just lists "all medical records...pharmacy prescription reports,..etc..etc.. My husband previously applied for SC for lung cancer (under the premise that it STARTED in service..though not diagnosed until 2 years post retirement) --and he included a secondary connection for cancer related to asbestos exposure. The VA has never addressed the DIRECT connection - and previously denied him for the secondary connection -- Now the letter states: You were previously denied service connection blah blah blah... On order for us to reopen your claim, we need new and material evidence. It also sates "in order to be material, the additional evidence must pertain to the reason your claim was previously denied. Your claim was previously denied because your service medical records do not show any respiratory problems in seervice or exposure to asbestos. Therefore the evidence you submit must relate to this fact." ???????????????? They have failed to acknowledge that we have repeatedly requested that they consider the DIRECT service connection aspect of this claim. Can they limit the evidence they consider only to those two things? And it is HARD to send them NEW service medical records --though we can point out AGAIN that his service medical records DO show respiratory problems

Thanks! I am telling my husband all the WONDERFUL things I am finding out at hadit. He thought you just file your claim and then wait a few years until they deny you. :P Free

Glad your case was as good as it looked! The research gets a little trying --as one decision cancels out another --and than another decision cancels the one that cancelled the first on so the first one stands. The CUE might not be so much that they didn't get your SMRs - but that based on the evidence of record you SHOULD have got it back then (they presume that SMR recrods ARE evidence of record at the time of the decision -- even if they didn't have them -- because they should have.) My nephew is oversees right now...and we keep telling him - DOCUMENT EVERYTHING! AND GO TO THE DOCTOR!! And make sure the doctor documents!!!!!! And yeah.. in your case... even though it is a victoy - I imagine it feels like a very hollow one -- because it is too little too late - even when you get to pass go and collect $200. Do you think it will ever reach the point where veterans are granted as many legal rights as illegal immigrants? I hope so! Wishng you a speedy case! Free