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.

[Vync]

Kind of like the shotgun envelopes, orange with a bunch of holes, like it was shot with a shotgun.

Shotgun claim = Requesting a large number of claim conditions at once

While doing some BVA claim research, I encountered a few that had 25+ claims. Definitely shotgun or double-barrel there...

[Philip Rogers]

I would say the since the CAVC reversed itself that one could quote this case. Besides, due process requires notification or at least the attempt, which includes mailing to the last known address of record.

pr

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.

[Pete53]

I had to change my address twice. The first time I wrote the VA and some were changed and others not. The second time I went to a little office across from the VA Dallas Pharmacy filled out some paperwork and they took care of everything

If you change your address its a good idea to double check in 60 days or so with the VARO and VAMC and any other VA places you go to see

[Wings]

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.

x

x

x

Delta, I'm fairly certain that any substantial Title 38, Due Process provisions of law did not come about until the creation of the Veterans Court, November 18, 1988 by the Veterans' Judicial Review Act (VJRA). HOWEVER, Due Process has always been pr0tected under the Fifth Amendment to the United States Constitution.

~Wings

P.S. See Cushman vs. Shinseki (2009)

http://www.vawatchdog.org/09/nf09/nfaug09/...Fed.%20Circuit%

--snip--

The Due Process Clause of the Fifth Amendment guarantees that an individual will not be deprived of life, liberty, or property without due process of law. U.S. Const. amend. V. We conclude that such entitlement to benefits is a property interest protected by the Due Process Clause of the Fifth Amendment to the United States Constitution.