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

[Wings]

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UPDATE: Deshotel is no longer governing the "more than one claim at the same time" issue; rather, look to Ingram v. Nicholson, 21 Vet. App. 232 (2007) (Ingram II) for citations. ~Wings

http://www.hadit.com/significant_judicial_...ngramvnicholson

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In Ingram v. Nicholson, 21 Vet. App. 232 (2007) (Ingram II), the CAVC reconsidered its earlier decision in Ingram v. Nicholson, 20 Vet. App. 156 (2006) (Ingram I), in light of the Federal Circuit's decision in Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006).

Previously, in Ingram I, the CAVC had held that the Board erred by imposing a strict pleading requirement and by failing to take a sympathetic reading of the pro se claimant's filings. The CAVC held that a reasonably raised claim remains 'pending' until there is an explicit adjudication of the claim or an explicit adjudication of a subsequent claim for the same disability.

In Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006), however, the Federal Circuit had held that 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 period begins to run. The Federal Circuit rejected the theory that an implied claim remains pending and unadjudicated.

Upon reconsideration sought by the Secretary in Ingram II, the CAVC rejected the Secretary's argument that Deshotel controlled and found that, if strictly applied, the general holding in Deshotel would produce nonsensical results. The CAVC reasoned that if a claim could be denied sub silentio by failing to be addressed by VA when deciding other contemporaneous claims, the veteran would have no reason to know that the claim had been decided. As such, the CAVC interpreted Deshotel to mean that an RO decision may only constitute an adjudication of a claim where the RO decision addresses the claim 'in a manner sufficient for a claimant to deduce that the claim was adjudicated. Consequently, the CAVC held [still holding] that a reasonably raised claim remains pending 'until there is either recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent 'claim' for the same disability

[broncovet]

Rock

Of course, when you divide your intertwined claims, as I suggested, you take the chance that will delay one/both of them.

However, it has been my experience that the VA needs no excuses to delay your claim. There are hundreds of reasons for delaying your claim, and if they want to delay it, the delay it BECAUSE THEY CAN.

There is no incentive for the VA to "hurry up" your claim. I think the Va is trying to increase the claim time from 6 months to a year or more, so they can get Veterans to complain an increase their funding.

The VA delays our claims for 3 reasons:

1. Because they Can.

2. Because they earn interest on Vets money (financial incentive).

3. Because they use that as leverage to hire more people, and get more money to administrate Vets claims. (political leverage)

[carlie]

rock,

Just so you know - I am not ignoring your question.

I just don't know of any guidance or advice to help out

on this thread.

Sorry.

carlie