tdiu Re Opened Claims

[Berta]

I saw something here the other day that baffles me- it was suggested here in a different forum that a claim can be re opened "during the appellate period."

That makes no sense at all.

"A final decision cannot be reopened unless new and material

evidence is presented. Pursuant to 38 U.S.C.A. § 5108. The

Secretary must reopen a finally disallowed claim when new and

material evidence is presented or secured with respect to

that claim. Knightly v. Brown, 6 Vet. App. 200 (1994)."

A re open is only for a claim that has been denied and is not in the appellate process.

It takes New and material evidence to re open the claim.

I saw a recent BVA decision the other day and I know the buffoons (oooops reps) who mst surely handled the claim.

They possibly cost the vet about 2 years of retro if the vet succeeds on remand.

They could be sued in a state court.

The vet was within appellate period for a TDIU claim and they told him to re open with N & M evidence.DURING THE APPEALS TIMEFRAME! Re Open???? and lose his EED on the original claim?????? ridiculous!

This was one of the most atrocious cases I ever saw of a vet getting piss poor rep advise.

It is same POA I filed a 34 page documented General COunsel complaint against a few years ago so I will not post the link-

their reputation is bad enough as it is.

And they DO have some fabulous reps- who have to work side by side with their lousy ones.

Edited April 1, 2011 by Berta (see edit history)

[carlie]

A re open is only for a claim that has been denied and is not in the appellate process.

It takes New and material evidence to re open the claim.

I saw a recent BVA decision the other day and I know the buffoons (oooops reps) who mst surely handled the claim.

They possibly cost the vet about 2 years of retro if the vet succeeds on remand.

They could be sued in a state court.

The vet was within appellate period for a TDIU claim and they told him to re open with N & M evidence.DURING THE APPEALS TIMEFRAME! Re Open???? and lose his EED on the original claim?????? ridiculous!

This was one of the most atrocious cases I ever saw of a vet getting piss poor rep advise.

Man oh man - some help the vet reps above were ! Yes - I am being sarcastic about them.

[deltaj]

Berta, It sounds like this theory that a claim can be reopened during an appeal period is a way of getting around the fact that V.A. lost in court on the one year deadline for submitting new evidence under portions of 38 CFR 3.159 and 38 USC 5103 which were held invalid by the Federal Circuit in Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Circuit 2003). I first discovered this case online at www.veteranslaw.com which has a law update with some fascinating cases including the aforementioned case. I don't fully understand the case fully even though I've read it. The court said 38 CFR 3.159 (b) (1) was invalid because a portion of that regulation allowed V.A. to adjudicate claims before the one year period if a claimant had not responded to a notice within 30 days. I do wish to make the point that V.A.'s thinking on a claim being reopened may have something to do with 38 CFR 3.157 (b) and new and material evidence under 38 CFR 3.156 being received during an appeal period. I think that V.A. is using the theory that a claim can be reopened during an appeal period to try to get around the fact that V.A. is required to issue a Statement of Case when new and material evidence is received during an appeal period. V.A. would rather view a new exam received during the appeal period of a denial as a reopened claim under 38 CFR 3.157 (b) rather than admit that a veteran's much earlier claim is still pending because V.A. gave the veteran one year to submit new evidence without adjudicating that earlier claim. I WISH TO MAKE THE POINT ALSO THAT IN THE AFOREMENTIONED CASE THE COURT SEEMED TO STATE THE REGULATIONS AND LAW CONSIDERED BY THE COURT PERTAIN ONLY TO CLAIMS WHICH HAVE BEEN FINALLY ADJUDICATED. In other words V.A. may not be able to give a veteran one year to submit new evidence when a claim is still pending when V.A. has not adjudicated the pending claim. V.A. HAS HAD A CONSISTENT HABIT OF SENDING SOME VETERANS LETTERS AFTER RECEIPT OF INFORMAL CLAIMS PROVIDING A VETERAN NOTICE THAT HE HAS ONE YEAR TO SUBMIT NEW EVIDENCE TO REOPEN THE VETERAN'S CLAIM. Theoretically, the Court's logic is that this regulation and law pertains only to FINALLY ADJUDICATED claims and this could mean that claims are still pending when a veteran has been given one year to submit evidence but no rating decision was made. I'm helping a veteran now who sent V.A. an informal claim requesting reevaluation. V.A. sent him a letter giving him one year to submit new and material evidence but did not make a rating decision on the claim. Five years later this veteran started receiving Social Security because of his service connected disability. Six years later he filed a claim for increase which was eventually granted in part because new and material evidence in the form of an exam was received during the appeal period of a denial. I'm sure V.A. would much rather view that latter claim as reopened under 38 CFR 3.157 (b) than admit that they owe this veteran an additional six years of back pay at 100% or they would rather view that earlier claim as suitable for a staged rating based on the evidence then of record, but would either view be fair to this veteran who still has a pending unadjudicated claim requesting reevaluation which was a claim for increase? This issue is further complicated by Congress' passage of the Veterans Claims Assistance Act which somehow overturned V.A.'s decisions that claims had to be well grounnded.

[Berta]

Delta said:

"I think that V.A. is using the theory that a claim can be reopened during an appeal period to try to get around the fact that V.A. is required to issue a Statement of Case when new and material evidence is received during an appeal period."

No this is not from VA-someone suggested that idea here in another forum here at hadit.

I don't want to identify them or copy their post here -because I might have misunderstood them-and I feel they can reply to this thread if they have any reg or citation to support what they posted or clarify what they meant.

I still cannot understand their point- why would anyone want to 're-open' during the appellate period?

If they have new evidence they can submit it and that way their EED is preserved.

Re -opens are for final decisions after the appeal period is gone.

I think we all know that here anyhow.

[carlie]

I saw something here the other day that baffles me- it was suggested here in a different forum that a claim can be re opened "during the appellate period."

That makes no sense at all.

Berta,

I read it also and just stayed away from it as I was not in the

frame of mind for any argument.

IMO - if an issue has not met the criteria for being a finally adjudicated issue

then it is still in a pending status.

I think I will study the second part of (e) below to see if I begin to feel any differently.

http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/38cfr3.160.pdf

© Pending claim. An application, formal or informal, which has not been finally adjudicated.

d) Finally adjudicated claim.

An application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction,

the action having become final by the expiration of 1 year after the date of notice of an award or disallowance,

or by denial on appellate review, whichever is the earlier. (See §§ 20.1103 and 20.1104 of this chapter.)

e) Reopened claim.

Any application for a benefit received after final disallowance of an earlier claim,

or any application based on additional evidence or a request for a personal hearing submitted more than 90 days following notification

to the appellant of the certification of an appeal and transfer of applicable records to the Board of Veterans Appeals which was

not considered by the Board in its decision and was referred to the agency of original jurisdiction for consideration as provided in

§ 20.1304(b)(1) of this

chapter.

[Papa]

Here is something that will really baffle you all. Before I went to my C&P exam for Parkinsons, I had to complete the questionaire. I assume that QTC gets their general information from the VA. Well under claim type, they have reopen. How can something be reopened, when it was never opened Could it be possible that I had a claim in for a related illness, and it has been so long ago that I forgot about it? Or, the Va or QTC just screwed up. At the exam, my usually timid wife did something that she would normally not do. When the Doctor ask me how long has the shaking been going on, my wife right away said 1971. So, that is what the Doctor wrote down, probably does not mean anything, but he said that I was unable to complete some of the test.

Papa

[carlie]

Papa,

I have a strong feeling that the questionnaire you got and filled out

was made up by the QTC doctors office, to help them out and probably doesn't

even send a copy of that to VBA.

JMHO