The Evolution Of The Pending Claim Doctrine

[deltaj]

I found the most fascinating document online entitled The Evolution of the Pending Claim Doctrine written by a couple of really brilliant attorneys with the Board of Veterans Appeals. Please put up a link to this online document because I am sure that it would be useful to those people who are still battling V.A. for an earlier effective date.

[GuaymasJim]

Here it is:

http://www.bva.va.gov/docs/VLR_VOL2/Copy5--JohnFussellandJonathanHager.pdf

[broncovet]

Jim and Delta

Thank you for these most informative posts. I read the 39 page document and wished I would have read this two years ago, as it would have saved a lot of time and effort, concentrating on the issues that matter, in regard to the effective date.

There is simply no point in a Veteran persuing a benefit when a similar court has already stricken it down. Instead, the Veteran needs to modify his approach for an effective date, taking into account this document.

The BIG issue seems to be whether or not to file a "CUE". Of course, CUE only applies to a final claim, but, the pending claim doctrine may render the claim "non final" and instantly destroy the CUE.

In my appeal, I am using both alternates: 1) The pending claim doctrine and also 2) collaterally attacking the claim based on CUE to cover both bases. I really can not decide for sure to which category mine is, and I dont want to take another 4 years making the wrong choice.

I am hoping the BOARD will let me propose both alternates: Cue and the pending claim doctrine. For me, the more favorable is the pending claim doctrine, as I dont have to meet CUE standards.

[carlie]

I am hoping the BOARD will let me propose both alternates: Cue and the pending claim doctrine. For me, the more favorable is the pending claim doctrine, as I dont have to meet CUE standards.

bronco,

This might pertain to the above.

Several recent Court and United States Court of Appeals for

the Federal Circuit (Federal Circuit) decisions address this

type of situation, where an alternate theory of service

connection is presented to the Board. In Roebuck v.

Nicholson, 20 Vet. App. 307 (2006), which concerned both

direct and presumptive service connection, the Court noted

that although there may be multiple theories or means of

establishing entitlement to a benefit for a disability, if

the theories all pertain to the same benefit for the same

disability, they constitute the same claim. Id. at 313; see

also Schroeder v. West, 212 F.3d 1265, 1269-71 (Fed. Cir.

2000); Bingham v. Principi, 18 Vet. App. 470, 474 (2004),

aff'd, 421 F.3d 1346 (Fed. Cir. 2005).

The Board also notes that this case is distinct from the type

of scenario addressed in Robinson v. Mansfield, 21 Vet. App.

545, 551-52 (2008). That case concerned a new theory of

service connection that had been raised by the representative

on appeal to the Court, rather than prior to the Board's

adjudication. In that case, the Court affirmed that although

there may be multiple theories or means of establishing

entitlement to a benefit for a disability, if the theories

all pertain to the same benefit for the same disability, they

constitute the same claim.

The Court nevertheless found that the Board is not required to sua sponte

raise and reject all possible theories of entitlement in order

to render a valid opinion

even though it is required to consider all theories

of entitlement raised either by the claimant or by the

evidence of record as part of the nonadversarial

administrative adjudication process. Id.

http://www4.va.gov/vetapp08/files5/0839355.txt

[broncovet]

Thanks, Carlie

The case you cited seems to answer the question unambiguously: The Veteran can propose multiple theories on which he is entitled to benefits, and the Board must address them all, assuming a broad interpretation that this does NOT just apply to whether the Veterans condition is direct or presumptive, but on legal theories as well, such as the pending claim doctrine, deemed denials, CUE, etc.

[Wings]

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Delta, Carlie, Be sure to sign up' or read on-line:

BVA Veterans Law Review http://www.bva.va.gov/VLR.asp

Edited March 31, 2011 by Wings