Inextricably Intertwind Claims

[Rockhound]

Currently I am working on a claim for submission, however, it appears that the two claims may be so inextricably intertwind that I can not submit one with the other. One claim is to SC a cerebral concussion/TBI and it's residuals, but by doing so it would rebutt a previous decision where by the VA used PD diagnosis to find a previous psychiactric disorder diagnosis in error and replacing with the PD and then denying the claim.

This involves either the VA calling cue on themselves, which I don't believe they will do, or for me to pursue the error myself. This error occured back in 1974 and I do not want to possibly mess with anything that would be in the way of an EED on the psychiatric disorder.

To present the SC of the cerebral concussion/TBI and its residuals, there appears to be no way not to bring attention to the prior error. This brings me to my question, "do I submit them both in the same claim or do I seperate the error part in a CUE claim, for which I can not use any of the current evidence without loosing the EED, but in the same turn, I might loose the CUE claim with the evidence I had back in 1974.

Your help, suggestions, and comments are appreciated.

Rockhound Rider

[broncovet]

Rock

IMHO file two claims, not one. Reason: If EITHER rules in your favor, you win.

I like to set yourself up for success, so try to think of a way to "divide" your issues, in such a way that

you win if you win EITHER claim.

Its like playing poker..if you get dealt a very Bad hand, then ask for a "new deal"..you may get a better one.

Remember, that even if you get one of your claims denied, the dealer will have to show his cards,(Reasons for decision) so you will know what to play the next round. Those "reasons for decisions" may just help you out in winning your second claim.

Edited May 8, 2009 by broncovet

[Rockhound]

Anybody else want to post their opinion? If I submit two seperate claims, wouldn't this slow the claims process down as my C-File is sent back and forth to two different Raters? If I wait till one is decided, and they deny it, then I have to spend time NOD'ing it and possibly a DRO hearing, or going onto the BVA. All the while the second claim waits to be filed so it doesn't slow down the first one.

It seems more productive to submit them together and show how one, if approved affects the other one. As far as I can tell, in order for the evidence to help in the second claim, the first has to be approved. Comfusing isn't it.

Rockhound Rider :D

[Rockhound]

Bump: Would like more input than just one. Any discussion with your logic would be most appreciated.

Rockhound Rider :D

Rock

IMHO file two claims, not one. Reason: If EITHER rules in your favor, you win.

I like to set yourself up for success, so try to think of a way to "divide" your issues, in such a way that

you win if you win EITHER claim.

Its like playing poker..if you get dealt a very Bad hand, then ask for a "new deal"..you may get a better one.

Remember, that even if you get one of your claims denied, the dealer will have to show his cards,(Reasons for decision) so you will know what to play the next round. Those "reasons for decisions" may just help you out in winning your second claim.

[Philip Rogers]

Nope, not interested.

pr

[akwidow]

I will be reopening asthma and ptsd claims once my current issue is adjudicated. Because of the way my late vet was taken down in the jungle by tear gas while suffering from chronic asthma, the intertwining of the two issues is probably similar to yours. In his case, since he was found to be 50% sc ptsd 6 months before he died, I will be proving that the earlier filing for ptsd should have been granted, as his asthma claim should have been.

I will still be claiming two maladies, even though they happened simultaneously.

[Wings]

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Please bear in mind this legal Precedent. IMO, locate the Deshotel decision, and read it) ...

In Deshotel, the Federal Circuit held that a claim is "deemed denied" by the RO when a claimant files more than one claim at the same time and the RO explicitly denies one of the claims but fails to specifically address the other claim. Deshotel, supra. The holding in Deshotel is limited to RO adjudications and it is clear that the decision does not apply to decisions by the Board.

Deshotel v. Nicholson, 457 F.3d 1258, 1261 (Fed. Cir. 2006),