Charles V. Shinseki

[broncovet]

This is good news for Vets where the VA failed to notify the Veteran of a decision, and I think this applies to "unadjudicated" claims when the RO decides one issue, and "blows off" other issues, as they did in my case.

http://veteranclaimresearch.blogspot.com/2...hinseki-no.html

I will post pertinent parts of this:

<h2 class="date-header">Tuesday, December 1, 2009</h2> <h3 class="post-title entry-title"> <a href="http://veteranclaimresearch.blogspot.com/2009/12/federal-circuit-charles-v-shinseki-no.html">Federal Circuit, Charles v. Shinseki, No. 2009-7024, 3.103(f), Secretary's failure to respond to argument </h3> We are presenting this decision as it addresses several issues and an explanation of 38 C.F.R. § 3.103(f), that the "RO must notify the claimant in writing of decisions affecting the payment of benefits or granting relief. 38 C.F.R. § 3.103(f). Among other things, this notice must provide the reason for the decision, summarize the evidence considered, and inform the claimant of the right to appeal. Id. " This seems like a useful quote to have on hand.

The FedCir also addresses the abandonment of a claim and the concept of the Secretary's failure to respond to an argument as a possible admission of concession.

[deltaj]

I will add that it would appear from this case, that it is a Clear Unmistakable Error, as it should be, whenever a RO fails to adjuticate a Veterans claim and provide notice to the Veteran.

I don't think this would be clear and unmistakable error. Also I think I have read cases where the notification letter was missing and the Court of Veterans Appeals have stated that under the Presumption of Regularity it must be presumed that the veteran was notified. I believe that if you searched online under presumption of regularity AND notified AND veteran you would find some of those cases. The website of the U.S. Court of Veterans Appeals has a case 08-0441 Joseph Wegener III v. Eric Shinseki which refers to another case Butler v. Principi, where the Federal Circuit decided that the absence of a notification letter meant that under the presumption of regularity the veteran was presumed to have been notified of the decision.

Edited February 7, 2010 by deltaj

[broncovet]

Delta

I appreciate your input and your analysis. Gee, I am no lawyer, but I think it will be interesting to see if the court would agree with me that "Concession (by the Secretary) of Error" + "material basis" = CUE. That is, once the secretary concedes that an error occurred, the "undebatable portion" of the CUE was resolved in that they admitted the error. (One of the "tests" for CUE is that the error is "undebatable".) I do think this case definitely left some "weasel room" here on this, unfortunately. Remember, they said

that it "COULD construe the secretary's failure to respond..as an admission of error" and not that it "WOULD be construed as an admission of error".

[Vync]

Sort of like in the banking world:

"If you do not disclose, you cannot impose."

That's why your bank or credit card mails you the tiny brochure with the fine print every now and then.

[broncovet]

Yep. I can see the fast letter now..

"The Regional Office will now email the Veterans denials mixed in with junk mail with subjects such as, "You may have just won 4.2 million dollars" or "Secretary Shinseki announces NEW plan to reduce backlog". Inside the email, which you have to "open", it says:

The VA has a new plan to eliminate the backlog of claims, and also eliminate the BVA backlog. To accomplish this, we are sending all Veterans a denial of their claim in a junk mail that they probably wont read, like this denial we are doing to you right now. We are hoping you wont get this email, or at least not read it, so you wont appeal. If you do insist on appealing anyway, remember that the VA can call for a "reexam" on any of the benefits you already have(and take them away) and the Va is launching a new joint program with the IRS to automatically audit any Veterans tax return who feels they need to "clog up" the BVA with their appeal.

Through the use of "junk email" denials, and scare tactics aimed at deterring appeals, Secretary Shinseki hopes to reduce the backlog to 100,000 before 2012. The VA will disavow sending this email and attribute instead to hackers from Nigeria if Vets complain about it and congress hears about it.

Signed, Department of Veterans affairs where we care about the Veteran and his widow.

[Philip Rogers]

broncovet - I think I'll disagree here, in that, I don't believe the VA is required to give "reasons and bases" for additional conditions, found not related to the actual claim. They merely have to decide whether they consider them to be SC or NSC. That gives the claimant a diagnosis and opportunity to pursue those other conditions, as SC, if he/she so chooses. jmo

pr

Pr

That is not what this decision says. It says the VA owes the Veteran a decision..if they decide it is NSC, then that is a denial and they have to give reasons and basis for the denial, and give the Vet an opportunity to appeal. Yes, I know the Va regurarly did this in the past and got away with it, but they should not be able to get away with it anymore, that is, if the Veteran appeals, if this federal case is precedent.

In this example, there would be no "clicking one year appeal clock" because the Va failed to render a decision, which, it has been suggested is an error, possibly CUE. As it says on the link:

"Neither 38 U.S.C. § 5108 nor 38 C.F.R. § 3.158 can be interpreted as requiring a veteran to submit new and material evidence in order to reopen a pending, unadjudicated claim."

The case goes on to suggest this is CUE, coming barely short of calling it CUE:

" In fact, the Veterans Court noted that it “could construe the Secretary’s failure to respond to these arguments as a concession of error.” Charles, 2008 U.S. App. Vet. Claims LEXIS 626, *22."

[broncovet]

PR

We are not communicating correctly, and it is probably my fault. I am referring to multiple issue claims where the RO adjuticates some of those issues, and does not mention others. Some earlier cases have suggested those unadjuticated claims are "deemed denied".

According to the way I interpret Charles v Shinseki, (and I certainly am not suggesting that the court would always agree with my interpretation), the VA OWES the Veteran a decision, with reasons and basis, on every issue, not just some of them, and the Veteran is NOT required to submit "new and Material evidence" to re open a claim that the VA never finished the first time!

If you follow the link, it says it this way:

" RO must notify the claimant in writing of decisions affecting the payment of benefits or granting relief. 38 C.F.R. § 3.103(f). Among other things, this notice must provide the reason for the decision, summarize the evidence considered, and inform the claimant of the right to appeal."

Here is the link again: http://veteranclaimresearch.blogspot.com/2...hinseki-no.html