Interpreting Varo Silence As A Denial

[vaf]

Just throwing this out there for opinions, if anyone is so inclined. Can a VARO's non-response (since February 2006) be interpreted as a denial? Can one treat silence as though it were a denial, and then send a formal written request for the denial and an SOC? We're trying this to force a decision, one way or the other, so we've done this. I finally sent a "last-attempt" certified letter at the beginning of July, giving the VARO until 8/15/06 to issue its denial and an SOC, otherwise, I would seek a Writ of Mandamus.

This goes back to my husband being one of the few veterans whose rating is 90% per the VA's use of unapproved, uncodified software, vs. 95% = 100% using the actual combined ratings table in 38 CFR, Part 4, subsection 4.25. We know they're using software because they finally stated so to a U.S. Senator we had contacted for assistance, but they never admitted that to us. We started this journey this past February, writing several letters explaining what we thought was an error, and also did so through IRIS. The BVA awarded my husband an additional 10% on a claim in an October 2005 decision, which put him at 95% (=100%) per the Table.

The VARO did respond via IRIS that my husband is at 90% - period. They did not address the software issue at all, just made a perfunctory statement. They have not sent a formal denial or SOC, or replied in writing to our numerous inquiries, even though we've asked for an SOC.

An attorney is handling my husband's case that is pending before the Court. Both the attorney and a colleague matched all claims award letters in the C-file (still in D.C.) to the Table, and arrived at the same conclusions we did here - 95% (=100%). He said he knew of no changes to the CFR that would allow use of any other means of computing overall disability ratings than the actual Table. I've looked through the CFR myself for proposed changes to allow the use of software, and have not found anything that approved this change. He suggested the writ if the VA continues to ignore us, which I fully expect them to do.

Has anyone tried something similar in the absence of a written VA decision or SOC?

[JR Reihs]

Have you tried writing the RO director, sometimes this helps, but on the upside, look at it as forced saving's you know you are going to get it , you just dont know when......if the VA was ever forced to pay interest this crap would change.

I bet the VA calls CUE on themselves.

Edited July 30, 2006 by JR Reihs

[john999]

Vicki

It can be a long wait for TDIU and SSDI if you are unemployable. Even after you are 70% disabled it can take a year to get the TDIU. You need to have that in your plan for how you are going to make ends meet while waiting for SSDI and TDIU. He has to be unemployed for 6 months before the SSA will even consider disability benefits. All the people who decide your husband's claim are employed and have regular paychecks. Even the SO has a check coming in, so no one is in a Jam about time frames except the poor vet who has no income. Many vets end up in bankruptcy waiting for 100% or IU. All that stress just makes them feel worse and makes their conditions worse. The VA starves vets out of their claims all the time.

[vaf]

We started off contacting the VARO through IRIS on its website in December, when we got the BVA decision adding an additional 10%. We received a response from the VARO Director shortly thereafter via e-mail, stating my husband was not at 100%, but rather at 90%, without addressing the discrepancy or how they came to the conclusion that we were wrong. They never offered anything other than to repeat what they believed to be his current rating.

We then wrote several letters to the VARO Director, starting at the beginning of February of this year, trying to figure out why there was a discrepancy and asking for an explanation. We thought the VARO had overlooked a rating or two, because at 90% schedular, my husband has a long list of rated disabilities, and many others at 0%. We didn't know anything about software being used instead of the Combined Ratings Table. We didn't receive a written response, so we asked again on IRIS a couple of times. Again, the Director simply stated the same as what was mentioned above. So, yes, we did try to keep this simple, but nothing was resolved.

It wasn't until the VARO told the U.S. Senator we contacted that they were using software, not the Table, did we find out the cause of the discrepancy.

So, not to beat a dead horse, but again, how does one exhaust all administrative options prior to asking for a writ, if the VARO will not respond with a formal denial and SOC? What other options exist, am I overlooking something?

Are we obligated to wait, say, for five years or more? Five years comes to mind because we also have a claim that the Board remanded back to the VARO three times since March 2001 that has still not been decided. "Expeditious" must mean something different to the BVA than it does to the VARO.

We're anticipating a long dry spell between when he stops working and TDIU and SSA disability, so we've been trying to prepare for that. Their paying him what they owe him per the Combined Ratings Table, back to the effective date would help immensely. Fortunately, he's retired military and has at least a portion of his pension coming in, plus whatever I can bring to the table. We're more fortunate than others, I know.

[JR Reihs]

This is realy a discusting situation over something so simple, but have you tried the BVA again?I dont know the ends and outs of the BVA , but if they awarded a claim and the RO has ignored it, then it would seem they would be the ones to force the RO's hands.

[olenavygoat]

I can understand your concern about VA math, it's interesting to say the least. Is this an issue of gaining a 100% pension or a test of wills with the VA? It may be much easier to get the VA to first award a TDUI claim at 100%, then continue to work on getting the 100% rating. For TDUI you typically need at least one of the ratings to be 50% and a coupla other s at 30 & 20% showing a total body issue as to why the person cannot work/gain employment.

[jessejames]

Don't know if this would apply here, but it certainly is NOT good news for vets with more than 1 claim being considered at the same time. This is from VA Watchdog page:

BOMBSHELL COURT RULING ON VETERANS WITH MORE THAN

ONE VA CLAIM PENDING -- When VA acts on one claim but does

not address other claims, the other claims are deemed denied.

VA does not have to provide veteran with notice of denied claims.

You won't find this on the VA web site.

I received this from an attorney who represents veterans in the claims process.

Information below:

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Larry,

A new case decided on July 27 by the U.S. Court of Appeals for the Federal Circuit (Fed. Cir.) contains a bombshell for veterans and their dependents.

The Fed. Cir. held that "[w]here 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." (citing Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005)).

This means, in contravention of 38 U.S.C. Sec. 5104 and 38 U.S.C. Sec. 3.103, that VA does not have to provide the claimant with notice of the claim or claims that have been "deemed denied" or the reasons for the denials, and the period in which to submit a notice of disagreement with the claims "deemed denied" begins to run from the date of the decision on any of the other simultaneously submitted claims.

Thus, an unrepresented or poorly represented claimant could have the time to appeal the "deemed denied" claims run out without even knowing that the claims had been denied!

Here is a link to the case: http://www.fedcir.gov/opinions/05-7155.pdf

Here are 38 U.S.C. Sec. 5104 and 38 U.S.C. Sec. 3.103:

§ 5104. Decisions and notices of decisions

(a) In the case of a decision by the Secretary under section 511 of this title [38 USCS § 511] affecting the provision of benefits to a claimant, the Secretary shall, on a timely basis, provide to the claimant (and to the claimant's representative) notice of such decision. The notice shall include an explanation of the procedure for obtaining review of the decision.

(B) In any case where the Secretary denies a benefit sought, the notice required by subsection (a) shall also include (1) a statement of the reasons for the decision, and (2) a summary of the evidence considered by the Secretary.

§ 3.103 Procedural due process and appellate rights.

(a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3.

(B) The right to notice -- (1) General. Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice shall clearly set forth the decision made, any applicable effective date, the reason(s) for the decision, the right to a hearing on any issue involved in the claim, the right of representation and the right, as well as the necessary procedures and time limits, to initiate an appeal of the decision.

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I asked for a clarification about this: Would this apply to claims that have absolutely nothing to do with each other? Example...I file a claim for injury to hand. I then file a claim for tinnitus. A ruling comes down on the hand, but no ruling on tinnitus. Would the claim for tinnitus be automatically denied? Or is this just with claims that relate to each other?Attorney's answer below:

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With regard to your question, your example is exactly correct. If a veteran files claims for a back disability, tinnitus and a psychiatric disability, all at the same time, and only one of those claims is adjudicated, the others are "deemed denied" under the holding of this case.

The most damaging thing to the veteran is that he or she would never receive notice from VA that the other claims were "deemed denied" and that the appeal period had begun to run on those claims. If no NOD is submitted within 1 year, the decision becomes final, and the veteran would have to submit new and material evidence in order to reopen those claims. If any of those claims are eventually granted, the effective dater could only be the date of the request to reopen those claims, rather than the date of filing for the original claims. Another veterans' attorney has also brought up the problem of how a veteran could submit a claim for CUE (clear and unmistakable error) with specificity, as the law requires, when there has been no reason given for the denials.

As I told you, I believe this case flies in the face of 38 U.S.C. Sec. 5104 and 38 C.F.R. Sec. 3.103, which require notice to the claimant of all VA decisions affecting benefits.

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