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Richardson V Nicholson

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This decision should be read in light of the DeShotel and Andrews recent CAVC decisions

that found that once one claim is decided -whether favorably or not- any other pending claims are considered denied too.

NVLSP recommnds this is boilerplate lanquage for a NOD on this specific type of situation:

In Richardson v. Nicholson, 20 Vet. App. 64 (2006), the CAVC held that appellantscan argue that the failure to adjudicate a claim constitutes CUE. The Court held that the VA is required to determine whether the claim was or was not adjudicated. If the claim was adjudicated then the VA is required to consider the current CUE claim. If a claim should have been adjudicated but was not then the VA is required to now adjudicate that claim. This is a notice of disagreement because an earlier effective date should have been established because the rating decision dated [insert date]should have adjudicated this issue. If you determine that the above cited rating did consider this issue, the appellant contends that the failure of the rating to adjudicate this claim constitutes clear and unmistakable error. Please note that the appellant was never provided specific notice of this decision. See 38 U.S.C. § 5104. In the alternative, the appellant argues that the claim was still pending from the originaldate of claim when benefits were eventually granted. The veteran seeks appellate review. ********************************************************************************

*************** ___________________________ PETER S. GAYTAN, Director National Veterans Affairs and Rehabilitation Commission 3

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  • Elder

Thanks Berta! Good work!

One of my most recent "Issues" for the BVA

Veterans Benefit Manual M21-1, Part IV, Chapter 11 Special

Determinations and Administrative Decisions, Sub-chapters 11.01 and

11.02 detail the adjudication procedures necessary for deciding any

"statutory bar to benefits and character of discharge determinations".

These regulations mandate "notifications prior and subsequent to

decision". In the Claim at issue, notification subsequent to the

determination was not provided to veteran. Thus, veteran was denied

routine appellate remedy, and due process provisions of law were violated

according to 38 CFR 3.103 Procedural due process and appellate rights.

In my Claim, 38 U.S.C. § 5104 would also apply to my issue(s) ONLY IF I had filed

my original claim AFTER 1990 !! DRATS!! But this is GOOD ADVOCACY for newer

claims !! ~Wings

See Notes below.

§ 5104. Decisions and notices of decisions

(a) In the case of a decision by the Secretary under section 511 of this title

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.

§ 5104



(Added Pub. L. 101–237, title I, § 115(a)(1), Dec. 18, 1989, 103 Stat. 2065, § 3004; renumbered § 5104, Pub. L. 102–40, title IV, § 402(b)(1), May 7, 1991, 105 Stat. 238; amended Pub. L. 102–54, § 14(d)(1), June 13, 1991, 105 Stat. 285; Pub. L. 103–446, title XII, § 1201(d)(15), Nov. 2, 1994, 108 Stat. 4684.)

Prior Provisions

Prior section 5104 was renumbered section 8304 of this title.


1994—Subsec. (a). Pub. L. 103–446 substituted “section 511” for “section 211 (a)”.

1991—Pub. L. 102–40 renumbered section 3004 of this title as this section.

Pub. L. 102–54 amended section as in effect immediately before enactment of Pub. L. 102–40 by striking out “(1)” after “(a)” and substituting “(b)” for “(2)”, “subsection (a)” for “paragraph (1) of this subsection”, “(1)” for “(A)”, and “(2)” for “(B)”.

Effective Date

Section 115(b) of Pub. L. 101–237 provided that: “Section 3004 [now 5104] of title 38, United States Code, as added by subsection (a), shall apply with respect to decisions by the Secretary of Veterans Affairs made after January 31, 1990.”

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Adora- you probably understand this case much better than I do-I find I have to read these things many times to get it all.

I hope this will help you in some way-

Dear veteran- by now you should be a lawyer and a doctor and even the Sec of the VA!

I nominate you. You could run their show and the VA would start to do it all right.

I might not have said this in many years BUT men and women-especially newbys- this veteran has been through so much- tooooo much and she stills fights them with their own regs and their laws! I love her style!

I still remember a phone conversation we had prior to an ordeal that you were Successful in some years ago! Adora, my daughter was here ,home on leave from the USAF, and she could tell -the little she heard from my end of the conversation -with you that you sure were a FIGHTER and that service can scar one in many ways. You have moved mountains. I am always inspired by you.and Very grateful for your service!

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