Letter As To Findings, 1979 Claim

[Guest Jim S.]

I guess they are trying to tell me back then, that everything in my records was against approving my claim. :P

MAY 15, 1979

377/XXXa

ssn xxx xx xxxx

Dear Mr. XXXX:

This is regarding your reopend claim for entitlement to service connection for your nervous condition.

All the evidence of record has been reviewed including summery report from Butte County Mental Health. The evidence does not warrant any change to our previous denial for service connection for your nervous condition.

Sincerely yours,

Harry E. XXXX

Adjudication Officer

Enclosure

VAF 1-XXXX

CC

Disabled American Veterans

Don't laugh, this is the sort of thing they did back then and Veterans like me, had no clue that this was garbage and could challenge this sort of thing.

Jim S. B)

Comments incurraged.

[Wings]

I got one in 1974 so they should have been giving Reason and Baisis in 1979

I think the enclosure was my rule and such for an appeal, of course I had no idea what to appeal, I didn't know anything back then. It's not much different now, if you don't ask, the VA isn't telling.

Jim S. B)

You should find out what the Enclosure/attachment was all about ... Did you Appeal the 1974 decision? Maybe not, since it appears you tried to re-open with new and material evidence. What kind of feedback are you looking for Jim?

[Guest Jim S.]

Wings: I guess things like what you pointed out, like was was with or in the inclosure. not really sure. or maybe whether or not did this type of letter meat the proper standard for a denial letter by not giving more specific information as to what evidence was use to support the denial. Nothing specific, just something to peek my mind into action I guess. My thoughts get channeled into one way of thinking and I was probably wanting a little help in looking at things differently, that's all I guess.

Jim S. :P

[Wings]

Dear Fellow Veterans & Friends

Gilbert v. Derwinski addressed the VA bare conclusions without any reason or basis. The court ruled against the VA denials of claims without stating a reason. The court found in the Gilbert case it could not review it because of any VA rulings that would give the court a clue as to what they were thinking.

I feel the court should reopen all claims that are denied in such a way but they wont allow that. I guess the best way to challenge the VA when this happens is get a IMO to state the oppiste of what the VA ruled on and that would be new and material evidence.

Terry Higgins

Thanks for this info. Terry! Jim, Can you find Gilbert v. Derwinski? ~Wings

[Guest Jim S.]

Wings: According to the Case of Gilber v. Derwinski. The specific requirement that the VA give reason and basis for its decisions didn't take affect until about 1989. So it may appear that I cannot use the lack of information on my letter of denial, since their was no prevailing opinion telling the VA any difference.

I guess that it may be wise to get a complete review of my records to see if the VA Office in Washington can come to a better conclusion first, before I push my CUE claim through.

I would hope that by letting them do a review, they will see what I do, but I wouldn't hold my breath, but then again, they know that I will submit a CUE Claim on those parts I have already noted.

Any how, It was good information and I want to thank Terry for finding and posting it for me, my mind seems to only work in spert and late at night, when I can't seem to get through to the General Service sight, it seems the search engine is off line late at night or something.

Time for morning Meds and breakfast and all those good morning stuff. LoL :P

Jim S. B)

[Wings]

Found it in Tbird's archives . . .

http://www.hadit.com/uscvagilbert8953.htm

NORMAN GILBERT, APPELLANT v. EDWARD J. DERWINSKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE

1 Vet App 491 Vet. App. 49; 1990 US Vet App LEXIS 161990 U.S. Vet. App. LEXIS 16

No. 89-53

October 12, 1990, Decided

IV. The “Reasons or Bases for . . . Findings and Conclusions” Requirement

Prior to the enactment of the VJRA [*veterans judicial review act], except in the case of constitutional challenges, see, e.g., Johnson v. Robison, 415 U.S. 361 (1974), the decisions of the Secretary in denying veterans benefits were unreviewable by the federal courts. The Board was the highest appellate body to which an aggrieved claimant could appeal. That day, however, has passed. Congress has changed the structure of the veterans benefits adjudication system and BVA decisions are now subject to judicial review by this Court.

One of the changes brought about by the VJRA was an amendment to 38 U.S.C. § 4004 (d). Prior to the enactment of the VJRA, the decisions of the Board were required only to be in “writing and . . . contain the findings of fact and conclusions of law separately stated.” 38 U.S.C. § 4004 (d) (1982).

Congress amended 38 U.S.C. § 4004 (d), effective as of January 1, 1989, to mandate that a “decision of the Board shall include . . . a written statement of the Board’s findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record.” 38 U.S.C. § 4004 (d)(1) (1988) (emphasis added).

The legislative history of § 4004(d)(1) offers insight as to what Congress intended by adding the requirement of “reasons or bases” to BVA decisions. The Senate Committee proposed that 38 U.S.C. § 4004 (d) be changed to “expand the present requirement that BVA decisions be in writing and contain findings of fact and conclusions of law separately stated [and] to require that such decisions include findings and conclusions and reasons and bases therefor, on all material issues of fact, law, and matters of discretion . . . .” 134 Cong. Rec. S16653 (daily ed. Oct. 18, 1988) (Explanatory Statement on the Compromise Agreement on S.11, as Amended, the “Veterans’ Judicial Review Act”). One reason given for this change, which was adopted in the final version of the VJRA, was to provide “a decisional document from the Board that will enable a claimant to understand, not only the Board’s decision but also the precise basis for that decision, and [will] also permit a claimant to understand the Board’s response to the various arguments advanced by the claimant.” S. Rep. No. 418, 100th Cong., 2nd Sess. 38 (1988). Moreover, the Committee provided another explanation for the change: “[T]he decisional document should assist the reviewing court to understand and evaluate the VA adjudication action.” Id. (emphasis added).

The requirement that administrative decisions be supported by “reasons or bases” has long been recognized by the judiciary as necessary to facilitating judicial review. In SEC v. Chenery (Chenery II), 332 U.S. 194 (1947) the Supreme Court held that

If the administrative action is to be tested by the basis upon which it purports to rest, that basis must be set forth with such clarity as to be understandable. It will not do for a court to be compelled to guess at the theory underlying the agency’s action; nor can a court be expected to chisel that which must be precise from {1 Vet. App. 57} what the agency has left vague and indecisive.

Id. at 196-97.

Recently, the United States Court of Appeals for the District of Columbia held that “[t]he basis for an administrative decision, of course, must be clear enough to permit effective judicial review.” International Longshoremen’s Assoc. v. National Mediation Board, 870 F.2d 733, 735 (D.C. Cir. 1989).

In view of the mandate of § 4004(d)(1) that the BVA articulate with reasonable clarity its “reasons or bases” for decisions, and in order to facilitate effective judicial review, the Board must identify those findings it deems crucial to its decision and account for the evidence which it finds to be persuasive or unpersuasive. These decisions must contain clear analysis and succinct but complete explanations. A bare conclusory statement, without both supporting analysis and explanation, is neither helpful to the veteran, nor “clear enough to permit effective judicial review”, nor in compliance with statutory requirements.

In the future, it may well be that the Board will find it easier to fulfill this mandate since Congress recently imposed a similar requirement on the Secretary when claims are denied. In 1989, Congress enacted 38 U.S.C.A. § 3004 (a)(2) (West Supp. 1990), which provides that “n any case where the Secretary denies a benefit sought, the notice . . . shall also include (A) a statement of the reasons for the decision, and (B) a summary of the evidence considered by the Secretary.” The legislative history makes it clear that this requirement “would not be met by such terms as ‘service connection not found’ or other such conclusory statements.” 135 Cong. Rec. S16466 (daily ed. Nov. 21, 1989) (Explanatory Statement on the Compromise Agreement on H.R. 901 as Amended, the “Veterans Benefits Amendments of 1989”).

The Supreme Court has held that where the “failure to explain administrative action . . . frustrate[d] effective judicial review, the remedy was . . . to obtain from the agency . . . such additional explanation of the reasons for the agency decision as may prove necessary.” Camp v. Pitts, 411 U.S. 138, 142-43 (1973). Thus, “[t]he proper course in a case with an inadequate record is to vacate the agency’s decision and to remand the matter to the agency for further proceedings.” Occidental Petroleum Corp. v. SEC, 873 F.2d 325, 347 (D.C. Cir. 1989); see Camp, 411 U.S. at 143; Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985).

*See Veterans' Judicial Review Act (VJRA), Pub.L. No. 100-687, Div. A, 102 Stat. 4105 (1988)

*And see O.G.C.Prec. 89-90 (August 27, 1990).

[Guest Jim S.]

Thank you much Terry for pointing out the case andd Wings for going further and finding the opion. I still have a lot to learn in how to research things out. Without Tbirds forum I would be lost, not knowing where to turn.

I do have a question, since it appears my claim that I am argueing happened before Gilbert, can I then ask for a review of the decision because of new and more sempathetic rules were enacted that would have a direct bearing on the facts as they were know at the time.

Thus, “[t]he proper course in a case with an inadequate record is to vacate the agency’s decision and to remand the matter to the agency for further proceedings.”

Could I not ask, even though the claim is considered closed, that for the sake of justice and fair judicial review ask that the case be reviewed in light of this new rule to see if the claim was properly adjudicated and whether the old decision should stand.

Semply put, for the VARO to explain how the decision was made and if their was an error, for them to CUE themselves on this matter.

Jim S. :P