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.

[Philip Rogers]

broncovet - I was referring to Vync's claim statement.

pr

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

Edited February 7, 2010 by Philip Rogers

[Philip Rogers]

broncovet - I think that "deemed denied" issue has been resolved. This is from a link on Hadit's home page:

In Ingram v. Nicholson, 21 Vet. App. 232 (2007) (Ingram II), the CAVC reconsidered its earlier decision in Ingram v. Nicholson, 20 Vet. App. 156 (2006) (Ingram I), in light of the Federal Circuit's decision in Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006).

Previously, in Ingram I, the CAVC had held that the Board erred by imposing a strict pleading requirement and by failing to take a sympathetic reading of the pro se claimant's filings. The CAVC held that a reasonably raised claim remains 'pending' until there is an explicit adjudication of the claim or an explicit adjudication of a subsequent claim for the same disability.

In Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006), however, the Federal Circuit had held that where the veteran files more than one claim with the RO at the same time, and the RO's decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run. The Federal Circuit rejected the theory that an implied claim remains pending and unadjudicated.

Upon reconsideration sought by the Secretary in Ingram II, the CAVC rejected the Secretary's argument that Deshotel controlled and found that, if strictly applied, the general holding in Deshotel would produce nonsensical results. The CAVC reasoned that if a claim could be denied sub silentio by failing to be addressed by VA when deciding other contemporaneous claims, the veteran would have no reason to know that the claim had been decided. As such, the CAVC interpreted Deshotel to mean that an RO decision may only constitute an adjudication of a claim where the RO decision addresses the claim 'in a manner sufficient for a claimant to deduce that the claim was adjudicated. Consequently, the CAVC held that a reasonably raised claim remains pending 'until there is either recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent 'claim' for the same disability.

pr

[Vync]

The DAV lady told me that even if I were to submit a shotgun request of 10 or 20 claims at once, each claim would be considered separate from any other claim on the same request. Supposedly, they would be adjudicated individually. Then again, the DAV lady really has not done much of anything to help me.

[Pete53]

Its another VA trick that they play on Veterans PR. Many of our VSO's would shotgun for us and not explain. For myself I dropped issues that the VSO had shotgunned cause I wanted all or nothing,

[deltaj]

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]

I know V.A. would like us to believe that 38 CFR 3.103 on procedural due process and appellate rights has only been effect since 1990 but I am pretty sure that I've seen this regulation 38 CFR 3.103 in V.A. regulations in the early 1960s. My husband was not notified in 1966 under 38 CFR 3.103 that V.A. had received additional service records after his first exam.

[broncovet]

PR

Good post and great info. I certainly hope you are right that this "deemed denied" trap for Veterans has gone away with Ingram II, where the court would appear to have reversed itself, or, at a minimum, "lightened up" on "deemed denied" by saying that the Veteran had to know the case was denied or else it was still pending. Are you reasonably certain that Ingram II, was precedential, that is, if a Veteran was "deemed denied" but had no knowledge that his claim had been denied, his attorney could cite Ingram II, and prevail. I am very fuzzy at knowing whether a case is "precedential" or not, but I think I understand that if a case is precedential, and you can demonstrate that your case is similar, then the courts should rule the same as the result of the precendential case. However, If I cited a NON precedential case, the court would reject the argument.

Pete

I am unfamiliar with what you call the "shotgun". I am guessing you are saying when the Vet goes to the VSO and applies for, say, hearing loss, the VSO also adds depression, PTSD, arthritis, AO, and whatever else he can think of.