Va Court Cases Review Update

[tssnave]

Before August creeps into September, I wanted to post the link for the July court cases review that a VA lawyer posts on the web. I've posted his site before but the faces change here a lot so here it is again. I think this is a great public service by this guy and if you haven't looked at his archives before you may want to check them out, especially if you are preparing an appeal and need relevant court cases to cite in your NOD.

http://wvajustice.com/?m=200907

Thanks,

TS Snave

Edited August 8, 2009 by tssnave

[Bonzai]

Just so I can get this all straight - If I have submitted a NOD for EED, appealed a reconsideration denial, filed for HTN and filed for OSA - a denial on any one of these will kill them all, to include the appeal to the BVA? I don't think I will be very amused, if this is true.

I filed everything separately, because I read a post that if you file all in one claim, then they may approve one (the smallest) and summarily deny the rest.

Edited September 1, 2009 by Bonzai

[broncovet]

Bonzai

Read the case yourself, especially the one about "deemed denial". I personally applied for hearing loss, and depression..the hearing loss was denied and the depression was not addressed and thus it was "deemed denied". I am still appealing the effective date of it, as I had to start all over again, but, IMHO, the present laws do not require the VA to give the Veteran an answer on his claim..ever. However, the Veteran has to appeal a deemed denial, after one year, or it becomes final. What a ripoff! The RO's silence on the issue is a denial, and you can see why I am so hot about it. The courts have allowed this injustice and point the finger of blame on the legislative branch, claiming that this mess can only be fixed with a new bill, "Veterans right to a decision" type of bill.

I think it should be the other way around. That is, if the VA cant get the paperwork done and give the Veteran an answer on his claim, it should be "deemed approved". The VA's silence on the Veterans claim should be construed that the VA has no defense against the VEterans claim, and it should stand approved.

Edited September 1, 2009 by broncovet

[Bonzai]

Broncovet,

I had read it and just reread it again. I guess I was vague in my questions. I have applied separately for the following:

1. NOD for rating of Bipolar, at AMC.

2. NOD for EED for Spousal Dependency at RO.

3. New claim for increase in Bipolar rating and TDIU due to change in circumstances.

4. Service Connection for Hypertension at RO.

5. Service Connection for Obstructive Sleep Apnea at RO.

I am asking if the VA can group everything together, and focus on one and 'deem denying' the others? Pardon me if I seem a little dense today, but I didn't sleep at all last night, which is nothing new.

Edited September 1, 2009 by Bonzai

[broncovet]

Bonzai

Dont feel like the lone ranger if you are trying to figure out the Va, but have not been able to so far, because I am not sure any of the rest of us have figured out their complicated system yet, either.

I am not an attorney and I have no idea what the Va will do with your case, however, for others they have done exactly that: They have denied one part of the claim, and the rest of the issues have been "deemed denied". At present, I am unaware of an instance of a "blanket" deemed denial that spans the RO, and AMC, however.

It has been my experience that the higher level courts (BVA, CAVC, Federal courts) are more thorough than the RO and dont often just "blow off" some of the issues like the RO often does. The upper level courts know that there is a good chance their decisions will be reviewed by a still higher court. The RO knows this, too, but does not care if their decision is overturned upon appeal. (Lawyers and judges get upset when they loose a case, but rating specialists dont care)

I offered this advice..not to trouble you to worry about deemed denials, but rather, if you claimed 4 issues at the RO, make sure you get decisions on all 4 issues, because if you only get decisions on one issue, then the others have been deemed denied and you have to appeal them even tho you didnt get a decision.

If you are troubled by this, like I am, I suggest writing to congressman Filner, or your congressman, and telling him you want him to propose legislation where Veterans deserve a decision on each and every claim..that "deemed denials" should be banned. You can cite the attorneys cases of "deemed denials", since lots of people simply do not beleive the VA would do this to a Vet. I didnt beleive they would do it either, until they did it to me.

[dannydad]

I have two appeals filed.In one of the appeals the ro split out 3 Grant requests,they were subsequently denied. i have appealed this action but its getting confusing.Now with this latest twist do i have to appeal the the original appeals,what do you think i should do?????

[broncovet]

When in doubt, get the NOD out!