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.

[carlie]

"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."

In my opinion,the VBA can make several types of errors, of which the majority will not rise to the level of a CUE.

To me I see one of the most important issues in this case regards,

"Once RO renders a decision on a claim for benefits, the claimant may appeal by filing a Notice of Disagreement within one year of the mailing date of the decision. 38 U.S.C. § 7105(b)(1). “New and material evidence received prior to the expiration of the appeal period . . . will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period."

jmho,

carlie

[broncovet]

I will agree with Carlie that not all errors rise to the level of CUE.

However, the statement:

"the Veterans Court noted that it "could construe the Secretary's failure to respond to these arguments as a concession of error."

would imply that at least ONE aspect of CUE was met: The error needs to be "undebatable", and the secretary admits they are not debating the error, the are conceding that it is in error.

Other CUE standards still would have to be met, (To qualify as CUE) but this particular one, as to whether or not the error was debatable or not, would appear to have been met.

I also agree with Carlie, that:

“New and material evidence received prior to the expiration of the appeal period . . . will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period."

May also produce a favorable outcome for the Veteran, with better chances than trying to meet the CUE standard.

IMHO the only time the Vet should even try CUE is if he failed to appeal in one year. Carlie's "New and Material" statement, above, assumes that the claim was appealed within a year. ("prior to the expiration of the appeal period")

I am only suggesting CUE when the claim was NOT appealed within a year.

I also agree that it gets very "fuzzy"...after all, WHEN does the appeal period expire, on a "non decision", that is, the Veteran got a decision on one issue but not on others? Since many Veterans get multiple decisions, which one of those, by not mentioning an issue, "deemed denied" the claim?

Katrina Eagle mentioned that the "deemed denial" was very bad for Veterans. I think it is not only "very bad" but also very confusing.

Edited February 7, 2010 by broncovet

[Wings]

x

x

x

See the date of the regulation §3.103 Procedural due process and appellate rights.

(Authority:38 U.S.C. 501, 1115, 1506, 5104)

[55 FR 13527, Apr. 11, 1990; 55 FR 17530, Apr. 25, 1990, as amended at 55 FR 20148, May 15, 1990; 55 FR 25308, June 21, 1990; 57 FR 56993, Dec. 2, 1992; 58 FR 16360, Mar. 26, 1993; 58 FR 59366, Nov. 9, 1993; 59 FR 6218, Feb. 10, 1994; 59 FR 6901, Feb. 14, 1994; 66 FR 56613, Nov. 9, 2001]

[broncovet]

Wings...

I am trying to understand what these dates you cited mean? It sounds like you are suggesting to Vync that if his case was after those dates mentioned, it would apply to him, correct?

[hurryupnwait]

I was never sent a Decision letter from my 1973 claim. My attorney, Ken Carpenter, is treating it as an open claim, not as a CUE. He is saying that my effective date is 1973 , not 2001 when I reopened the original claim.

CUE is much more difficult to deal with.

[Pete53]

All this talk about CUE and it is extremely rare to get it. Put your head down and win the claim before you take a shot at CUE