"deemed Denied"

[broncovet]

Someone recently had applied for multiple issues, and got a decision which denied one issue, and said nothing about the other. This is a "secret denial", or the courts use the term, "Deemed Denied".

This is one more trap to snare unsuspecting Veterans, and is a big "loophole" in the legislative/legal process which allows the VA to do this. DONT GET CAUGHT in this TRAP.

If you have applied for more than one issue, and your RO decision mentions only one and forgets the others, you have been "deemed denied", and you must appeal within 12 months, or that denial without a decision becomes final.

This works with awards of benefits also:

If you are awarded SC for hearing loss, for example, and your decision does not mention your arthritis claim, your arthritis claim has been deemed denied.

What to do:

If you are "deemed denied" then file a Notice of Disagreement stating that the decision did not address your claim for __________ condition. Do this within a year.

If your decision is more than a year ago, and your Regional Office blew off your claim, you have to prove CUE.

To prove Clear Unmistakable Error, in this instance, cite court case Roberson, which points out that "the VA must consider all the Veterans claims before rendering a decision".

In my humble opinion the VA does not have a legal basis for doing deemed denials, however, they do them anyway, and the Veteran has to go through years of appeals just to try to get benefits that are due to him. There is no accountability for this, and no penalty for the rater. Its the Veteran who pays dearly.

Edited June 19, 2009 by broncovet (see edit history)

[jbasser]

Darn good information Broncovet. It proves once again that a Vet must be vigilant and stay on top of his or her claim.

[halos2]

Broncovet,

Glad you posted this "usual occurance." It happens way too many times. You snooze, you loose.

[iraqx2]

Good Info.

But isn't the VA under " CUE " the moment they did not mention the other claim and decided on one of the issues?

[john999]

Please, God, let me live long enough to see some of these wrongs be made right, and for the people who hurt vets to pay the ultimate price. We walk through a minefield to get what we deserve. The enemies of vets are here at home and not on some foreign battlefield.

[LarryJ]

Good Info.

But isn't the VA under " CUE " the moment they did not mention the other claim and decided on one of the issues?

They may well be. But, if you aren't cognizant of what they have done, and do not file an NOD or provide other information, then the one year clock is still ticking.

"deemed denied"..........how the heck are we supposed to KNOW what THEY decided to "deny".....how about if we can turn this around on them.....can we send them a claim, say for "arthritis, left big toe" and when they deny this claim for "arthritis"....can we say, "But, wait a minute, you didn't rule on the PTSD and the tinnitus, and the scar tissue, and the pes planus and the.............so we should prevail on these "deemed undenied" claims?

[broncovet]

I agree, and think it is CUE from the moment they "forget" to process one or more of the Veterans claims. I think this is no small part of the shredding issue..they "forget" a claim, then shred any document that references it when it goes to BVA or appeal, so there is "no record of the Veteran every applying for _______ condition". The real sad part is they know this and do it anyway. It is one example of how the VA Regional Offices

manipulate the regulations in their favor, at the expense of Veterans. As mentioned earlier, the precedential case of Roberson shows they cant do this, but they ignore those regulations and do it anyway. It creates an immediate CUE, but the Veteran is required to know how to beat them, because they wont admit to it on their own. The Veteran looses out either way, because even if he notices this happened, Files a timely NOD, it will take him years of appeals, and the VA gets an interest free loan from the Veteran, because no interest is ever paid the Veteran for VA mistakes.

In the mean time, the Veteran is often homeless and suicidal. Those responsible for treating Veterans like this and manipulating those regualtions should be fired and brought to trial.

[broncovet]

As Larry pointed out, even tho the Va did not follow the required regulations in Roberson, that does not exempt the Veteran from having to comply with all the regulations (and the one year clock starts ticking). In a nutshell, the VA nails the Veteran whenever he does not comply with regulations, but the VA freely ignores their own regulations until/unless the Veteran appeals, and EVEN then, the VA may get away with it if that issue is not brought up on appeal. (Again, the regulations prohibit this, but the VA likes to "Weasel"..."I didnt know we were supposed to follow THAT regulation"

I wonder how many poor widows are out there, who the VA did that to them, and then the VETeran died before the claim could be approved. No wonder why Vets are so mad.

Edited June 19, 2009 by broncovet (see edit history)

[iraqx2]

You have to fight fire with fire. In one of my NOD's, I wrote a key word that the VA hates...

That word is " ERRORED ". They hate that. I believe that key word from any letter from a VET goes to a special pile at the VA to be looked at and responded quickly.

[broncovet]

I am going to supply a few sources that the VA does do "secret denials" or they use the word "deemed denials"

http://www.democraticunderground.com/discu...ddress=259x2281

http://www.tpromo.com/wwc/viewtopic.php?p=...2d39499d2e96390

Jackson vs Mansfield:

"In Deshotel, this court noted that even if the VARO does not specifically address a claim, that "second claim is deemed denied, and the appeal period begins to run." Id. at 1261."

The court denied Jacksons appeal, saying,

"Thereafter, Ms. Jackson did not appeal the VARO's decision with

respect to the nervous condition or sexual harassment claims nor file a CUE claim seeking to reopen the decision. Thus, both these claims became final. See Cook v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002); Deshotel, 457 F.3d at 1261."