Salahuden Majeed V. Nicholson

[Berta]

http://webisys.vetapp.gov/isysquery/irl773c/36/doc

We dont talk about this too much here- yet in this recent CAVC decision (#03-0747)

This vet did Leg work:

"Throughout the processing of his claim, Mr. Majeed has vigorously contested on various theories the validity of the Secretary's recoupment of his separation pay."

He had two periods of service , many SC disabilities,

and the claim is still pending and on remand:

"III. CONCLUSION

Upon consideration of the foregoing, that part of the 2003 Board's decision that $24,039.94 was the proper amount of Mr. Majeed's separation pay to be recouped from his VA disability compensation is SET ASIDE, and the matter is REMANDED to the Board to address in the first instance whether Mr. Majeed's disabilities arose to a compensable level during his first period of service. On remand, Mr. Majeed may present any additional evidence and argument in support of the matters remanded, and the Board must consider any evidence and argument so presented. See

Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court expects that the Board will provide expeditious treatment of this matter on remand. See 38 U.S.C. 7112.

SET ASIDE and REMANDED."

This claim points out that separation pay and offset errors do occur- and the veteran's argument seems entirely valid-

There is a lot in this claim-and the outcome is still unknown-

there are many points in it that refer to revealing case law:

Such as:

"See Maggitt v. West, 202 F.3d 1370, 1380 (Fed. Cir. 2000) ( holding Court abused its discretion when it declined to remand claim to the Board to consider intervening change in law)."

and this :

"Although it was determined in the proceedings below that

Mr. Majeed's disabilities all arose in his first period of service, the Board failed to determine whether those disabilities rose to the level that would make them compensable at that time or whether they only became compensable subsequent to that first period of service. This determination must be made by the Secretary in the first instance, not by the Court. See Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000). Therefore, remand is required. Inasmuch as the record is silent as to whether Mr. Majeed left his first period of service with any disabilities noted, the Board should also consider the applicability and effect of the presumptions of soundness and aggravation to this case. See 38 U.S.C. 1111 (wartime etc etc "

Interesting read -this veteran is quite strong in his contention about his offset amount which could be dependent on the questions that the remand brings up regarding his initial period of service.

Edited April 24, 2006 by Berta