Ag V. Brown

[deltaj]

Could someone put up a link to the Federal Circuit case in AG v. James Peake ? The full title to this case is 2007-7217 AG v. James Peake decided by the Federal Circuit on August 15, 2008. I think this case should be added to hadit's entry page. The court decided in this case that 38 CFR 3.309 ( b ) has retroactive effect. This case concerns the issue of notice to the veteran. The veteran had sent VARO a letter in 1985 asking about an earlier 1983 decision denying his claim and VARO provided a response letter about how to reopen the claim that the court didn't like which failed to notify the veteran of his right to appeal. The Federal Circuit stated in part, "We remand here because the RO's June 1985 decision --that AG did not timely appeal the 1983 denial of his claim-- never became final. This is because of the V.A.'s failure to notify AG of his right to appeal. As a result, the 1083 proceedings are ongoing because they have not concluded." This veteran was mentally ill and raised on appeal that his condition prevented him from responding to the 1983 decision.

Edited March 4, 2010 by deltaj

[Pete53]

http://caselaw.lp.findlaw.com/data2/circs/fed/077217p.pdf

[broncovet]

Delta..

This is an excellent case, great information and "must" reading for anyone who has ever "missed" his one year time frame to file a NOD. (Or is an advocate for someone who has.) The way I read it, IF the VA did not send you a notice of your rights to appeal, the one year limit is meaningless because the claim is not finalized until the Veteran receives notice of his rights to appeal. Dont take my word for it, read the case and see for yourself.

Pete

Thanks for the link to this important case.

[john999]

This is interesting to me since I don't believe I got appeal rights on my original rating decision back in 1973. I asked for my C-File and got what I thought was the file. At my BVA hearing the judge had a file three times as thick as the file I got. Maybe I did get my appeal rights, but how the heck would I know since they were not in the the C-file copy I got. I raised that as another CUE issue (my lawyer raised it). If they exclude your evidence, and don't give you appeal rights that leaves the vet in total ignorance of his rights. Also, how can you get a fair hearing when you don't have the same evidence as the VA. They have complete C-file and you have incomplete file. How many times can they violate your due process rights? I would bet many old decisions did not include appeal rights or explain one year right to file NOD.

[john999]

Well, I actually read the case that Pete cited. I don't know where I stand now. I don't know if I have a CUE or not. The evidence the VA excluded would have affected the rating decision. I did not appeal the rating. However, if I did not get appeal rights does that mean the 1973 case is still open? Will the VA remand my claim and say my case is not ripe for CUE? I would not have filed an appeal anyway since I was too far gone at the time. If the VA not only excluded crucial evidence but failed also to provide appeal rights where does that leave me? If the VA just looked at the evidence under the less stringent standard of open claim I wonder if they can drag in evidence from future time frames? Maybe we should not have raised the "no appeal rights issue". When the VA violates every rule in the book when do you know to holler and when to be silent? Our original idea was that the VA made an error if they excluded the evidence and made an error if they did include it since they did not follow the rating schedule criteria. This is why I hired a lawyer. Very complicated. The VA doctor they relied on never DX'ed me. Only my doctor made a DX with supporting evidence. The VA claims examiner threw everything into the mix and came up with his own DX thus practicing medicene without a license.