"deemed Denied" Not So

[Berta]

"Some Advocates here need to get up to date on some of the precedent setting CAVC and Federal Circuit Court decisions.

Adams V Shinseki ( a federal Circuit court decision)

has put the "deemed denied" BS, in most cases, if not ALL, to rest.

United States Court of Appeals for the Federal Circuit

2008-7162

LEE P. ADAMS,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs,

Respondent-Appellee.

Appeal from the United States Cour

t of Appeals for Veterans Claims

in 06-0095, Judge Mary J. Schoelen

___________________________

DECIDED: June 15, 2009

___________________________

Before NEWMAN, SCHALL, and BRYSON,

Circuit Judges

.

BRYSON,

Circuit Judge

.

When a veteran files a claim for disability compensation, that claim is regarded

as pending until it is acted upon

by the Department of Veterans Affairs (“DVA”).

In some instances in which a veteran files several claims, or in which the veteran’s claim is

treated as constituting several separate claims, the DVA does not expressly act upon

each of the claims. In thatsetting, it is necessary to decide whether the unaddressed

claim is still pending or has been implicitly denied. The answer to that question important because it can affect the effective date of the veteran’s

claim and the 2008-7162 2 standard to be applied if the veteran seeks, at some later time,to reassert the claim thatwas not expressly resolved "

http://www.cafc.uscourts.gov/opinions-orders/0/100/cavc/all/p/page-21-5/p.html

The pdf will pop up when you click on this speficic desision.

Edited February 18, 2015 by Berta

[63SIERRA]

AWESOME!!!!!!!!

[FirstOldOne]

Berta

If I have read this correctly as to "deemed denied", does this mean that my original 2010 IHD claim is pending due to it not having been adjudicated?

Page 6 of http://www.cafc.usco...age-21-5/p.html

A claim for benefits, whether formal or informal, remains pending until it is finally adjudicated. 38 C.F.R. § 3.160©; see Richardson v. Nicholson, 20 Vet. App. 64, 72 n.8 (2006). A claim will also be considered to be pending if the DVA has failed to notify the claimant of the denial of his claim or of his right to appeal an adverse decision. Cook v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002) (en banc). If a claim is left pending, it can be addressed when a subsequent claim for the same disability is adjudicated by the DVA, in which case the effective date for any award of benefits will be the effective date applicable to the original claim. See Myers v. Principi, 16 Vet. App. 228, 236 (2002).

In addition, I have tried to clarify my evidence and contentions in the following:

I ask for you to analyze the comparisons of the processing of my Diabetes claim to the processing of my Ischemic Heart Disease claim.

DIABETES

I believe it was in July 2010 when I first met with a NP at the Hattiesburg VA CBOC and blood was drawn for testing. This was my first contact with the VA in almost 40 years.

A few day's after this first contact I was informed, by a NP at the CBOC, that the blood test results indicated that I had a high blood glucose and a fatty liver.

The NP then scheduled to have blood drawn for a A1c blood test to be done. This was done a few day's later confirming that I had a high A1c and I was started on medications.

Due to the results of the A1c blood test, I was advised to file a NEHMER claim for DIABETES and I did on 08-18-2010.

07-2010 Blood testing indicating Diabetes.

08-18-2010 Diabetes, polyneuropathy X 4, shoulder and leg injury claim filed.

08-20-2010, VA received Statement of Support of Claim.

09-10-2010, VA received Statement of Support of Claim.

10-05-2010, VCAA letter

10-05-2010, C&P, Neurological

10-05-2010, C&P, Diabetes

10-13-2010, VCAA Notice Response

10-14-2010, VA received Statement of Support of Claim.

10-21-2010, C&P, General medical

11-05-2010, C&P, Neurological

03-22-2011, VA received Statement of Support of Claim. IU CLAIM.

03-22-2011, VA received Financial Status Report

04-21-2011, VA received Statement of Support of Claim.

08-10-2011, C&P, Audio

08-18-2011, C&P, Neurological

08-24-2011, C&P, Neurological EMG

09-08-2011, C&P, Neurological

07-18-2011, decision letter granting service-connection for Diabetes.

This was finished in (11) ELEVEN MONTHS!

Ischemic Heart Disease

Prior to the scheduled appointment the morning of the same day the NP scheduled me to have blood drawn for a A1c blood test to be done, I had an episode around 4:00AM indicating a heart problem. I was given (2) two EKG's, that same morning of which both were abnormal resulting in a trip to the JAXVAMC ER to have a stress test done that afternoon or the following day.

I was advised to file a NEHMER claim for IHD and I did on 08-18-2010.

07-2010 Abnormal EKG's

08-18-2010 IHD claim filed and PTSD claim filed.

NO C&P's

NO communications from VA involving IHD claim or development.

01-31-2012 Statement from Veteran. BACK INJURY CLAIM.

05-07-2012 VA received Statement in Support of Claim.

05-17-2012 Abnormal EKG was detected at the Hattiesburg CBOC but was not due to a processing of an IHD claim.

NO adjudication of 2010 IHD claim.

06-05-2012 HEART CAUTERIZATION verifying IHD but was not due to a processing of an IHD claim.

06-08-2012 VSO VERIFIED “ no IHD or PTSD claim, dating 08-2010, in my VA records”.

06-14-2012 VA received Veterans Supplemental Claim. “FILED for IHD AGAIN”.

06-20-2012 VA received Statement in Support of Claim.

06-20-2012 VCAA Letter

06-21-2012 VARO PUBLIC CONTACT REPRESENTATIVE VERIFIED “no IHD or PTSD claim, dating 08-2010, in my VA records”.

06-21-2012 VARO PUBLIC CONTACT REPRESENTATIVE instructed me, without resolving the original claims, to refile the IHD and PTSD claims which I did.

06-27-2012 VA received Statement in Support of Claim.

08-21-2012 VA received IHD DBQ.

07-19-2012 I WAS PROVIDED A FORM 21-0820 STATING “ It should be noted that an EP 681 was originally established on 08-20-2010 and canceled with no explanation. The veteran submitted two VA Form 21-4138's on that day. We only have 1 4238 received on 08-20-2010 that does not mention IHD; however, it had to be there or an EP 681 would not have been established. Earlier effective date may be warranted.”. On this form it also notes “PTSD – new” and Ischemic heart disease due to Agent Orange exposure*** - (new)”

THIS WAS AN ACTION TAKEN ON A CLAIM IN DEVELOPMENT AND IF IT WAS NOT THE IHD CLAIM THEN MY VA RECORDS SHALL VALADATE THIS.

THERE WERE ONLY (2) TWO 21-4138 FORMS SUBMITTED PRIOR TO 08- 20-2010, WITH CLAIMS ON THEM, AND THE CLAIMS ON ONE FORM HAVE BEEN ADJUDCATED.

07-20-2012 VCAA letter.

08-09-2012 I had bypass surgery at the Houston VAMC.

08-21-2012 VA received IHD DBQ.

08-21-2012 VA received Veterans Supplemental Claim.

09-10-2012 Received a decision letter on IHD which states “We made a decision on your claim for service connected compensation received on August 3, 2011.”. I have no copy of a claim with that date. The decision does not reference the original 08- 18-2010 IHD claim. In this same decision letter it states under the heading “What We Decided”, “ Service connection for ischemic heart disease associated with herbicide exposure is granted with a 10 percent evaluation effective June 20, 2012. An evaluation of 100 percent is assigned from August 9, 2012. An evaluation of 10 percent is assigned from December 1, 2012.

We have granted service-connection for ischemic heart condition effective June 20, 2012, the date we received your claim.” This date is in contradiction with the previous “We made a decision on your claim for service connected compensation received on August 3, 2011.”.

10-31-2012 I filed for an Earlier Effective Date.

11-08-2012 VA received Statement in Support of Claim.

01-03-2013 I filed, through my VSO, a document requesting him to file for RECONDERATION on all of the issues I disagreed with in the 09-10-2012 decision.

01-07-2013 My document requesting him to file for RECONDERATION on all of the issues that I disagreed with in the 09-10-2012 decision, is listed under EVIDENCE in the provisional decision as being received on 01-07-2013 as a STATEMENT from VETERAN WITH ATTACHED DOCUMENTS.

02-27-2013 VA received STATEMENT from VETERAN WITH ATTACHED DOCUMENTS.

04-08-2013 I received a letter, from the Jackson VARO dated March 8^th, 2013, stating "We are working on your notice of Disagreement"

04-10-2013 VA received Statement of Support of Claim.

04-13-2013 My VSO Emailed me, on March 13^th, 2013, and advised me not to respond to this letter because it was in error.

04-27-2013 I then received a letter which states "This is an amendment to the previous letter sent to you date March 8, 2013. The letter was incorrect and we are working on your request for an earlier effective date " and "We are writing in response to the letter you submitted to our office that was received on January 7, 2013." and also states under "What We Decided" that "We have determined that we cannot accept your letter as a Notice of Disagreement".

06-13-2013 VA received Statement of Support of Claim. Requesting info on claims for EED.

08-14-2013 Received a provisional decision letter for the issues I disagreed with in the 09-10-2012 decision. My document is listed as being received on 01-31- 2013.

12-17-2014 I had a conversation, by telephone, with JAXVARO PCR and I asked for a DRO MEETING. I was informed that the IHD & PTSD claims DO EXIST and are in my VA RECORDS as BEING ACTED UPON IN 2010 and I was informed that a DRO MEETING was not qualified because a decision was not made on the two 2010 CLAIMS.

As shown, there were no notifications given by the VA for a IHD claim that was filed.

There is evidence of an EP code 681 which represented IHD, which was one of three presumptive disease's at the time. My VA records have NO reference to the other presumptive disease's.

If the EP code 681 was not for IHD, then why was it established?

I am now told, by VA personnel, that there is a VA record of IHD and PTSD claims dated 08-20-2010.

I am going to request a review of my VA records at the RO and an updated copy of my “C” file.

I ask if these apply to my situation?

The Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009),

38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

The Veteran has not been provided notice pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006), that a disability rating and an effective date for the award of benefits will be assigned if benefits are granted

In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed.

Cir. 2009). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks

credibility merely because it is unaccompanied by contemporaneous medical evidence").

Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), and

Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007):

Both of these decisions addressed the issue of application of the prejudicial error rule in the context of the VCAA, including who has the burden of proving before the CAVC that any error committed by VA in providing notice of the information and evidence necessary to substantiate a claim for benefits under 38 U.S.C. 5103(a) was prejudicial. In Sanders, the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. 5103(a) and 38 C.F.R. 3.159(b)(1) is presumed prejudicial, and that once an error is identified by the CAVC as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. ﾠ

Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating that any defect was cured by actual knowledge on the part of the claimant, or that a reasonable person could be expected to understand from the notice what was needed, or that benefits could not have been awarded as a matter of law.

In Simmons, the Federal Circuit, in applying the holdings in the concurrently issued decision in Sanders, affirmed the CAVC holding that an error by VA in providing notice of the information and evidence necessary to substantiate a claim under 38 U.S.C. 5103(a) is presumptively prejudicial, and that in such a case the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant.

[Chuck75]

A quick read makes me wonder if due process was also breached. The whole thing sounds like it might have reached the level of CUE.

[FirstOldOne]

Sorry, I was doing such much in putting together my post that I forgot this:

• • C&P, 07-20-2013, ?

  • C&P, 07-22-2013, ? Two on this day

  • C&P, 07-25-2013, ? Four on this day

  • C&P, 07-30-2013, ?

• The eight (8) C&P examinations above were scheduled after the surgery and just prior to the provisional decision dated 08-12-2013.

[Berta]

"12-17-2014 I had a conversation, by telephone, with JAXVARO PCR and I asked for a DRO MEETING. I was informed that the IHD & PTSD claims DO EXIST and are in my VA RECORDS as BEING ACTED UPON IN 2010 and I was informed that a DRO MEETING was not qualified because a decision was not made on the two 2010 CLAIMS."

GREAT

The problem with phone conversation is that there might not be any documentation in the C file, but sometimes there is.

" I ask if these apply to my situation?"

Yes. That is basic VA case law.

You should have received a letter covering the VCAA and specifically mentioning Nehmer.

In Simmons ( no relation to me) and all other CAVC decisions based on violation of VCAA, the claimant was prejudiced by lack of a proper VCAA letter and that alone can cause needless BVA remands,if a claim gets that far.

Obviously if VA fails to provide a legal VCAA letter, the claim will be denied, and probably go to the BVA..

( I even asked the BVA to remand my DMII AO claim because of that legal error.BVA agreed the letter I received was all wrong but my evuidence overcame their error.
My Nehmer VCAA letter arrived just before they were ready to decide my AO DMII death claim)

In your case maybe the lack of a VCAA letter for the IHD (and maybe even the PTSD claim) started many of these problems you have had.

To prepare a proper VCAA letter, the VA has to actually read the claim.

It would be in your POA file as well as your C file if they did send you one.

Chuck, THANKS for chiming in here......I agree that this vets due process was breached and CUE might be the way to go...I think I mentioned that too in the other thread,

BUT I also suggest that you, FirstOldOne,
contact NVLSP by email.after this happens:

"I am going to request a review of my VA records at the RO and an updated copy of my “C” file."

That is a very Good IDEA!

You might want to contact the UnderSecretary, Alison Hickey as well, but in the long run, it is NVLSP that could straighten this out,if the EED is not handled right by the VA..

I had an immediate response from the Undersecretary over my issues, NOD pending for over 2 years and no correspondence at all from VA on my 2 pending claims.

It was a long story but I managed to reduce the problem to .a few paragraphs in email to her.I suggest anyone contacting her, to do that....

you will have time to expand on the original email.

My emails to and from her went right into my C file and the VA rep yesterday told me those emails helped define the problem. They were as brief as I could be.

Yesterday my VARO called me, they Finally have read my claims ( a victory there) and confirmed they had all of my evidence, ( that was great to hear too)
and the VA rep told me, "it will go fast now."

(NO VCAA letter...one is a CUE ,the other is 1151, so no VCAA letter is required. Your case is different)

(I made a joke about that with him, because no one can really define "fast " at VA)

Both claims are ready to be decided but they might still need a written response from me ,although by phone I confirmed what the letter needed from me.

You ,as well, have a very valid issue and I fully understand how frustrating all of this BS can be. In the 17 years I have been here at hadit every single issue I had was snafued by the VA (and also by my former vet reps)

FOR ANYONE READING THIS---

The Agent Orange Issue is not over.They could add more presumptives at any time, based on IOM findings . I never dreamed they would ever even put IHD on the AO list.

As Vietnam Vets die, their survivors might well continue to need help here, and certainly there are still many Vietnam vets filing AO valid claims .

I strongly suggest some of the advocates here get up to speed on AO-Nehmer because I sure wont be here forever.

I am tired of dealing with VA,and the momentous problems and battles I have had with them, for the past 20 years. And tired of thinking about VAOLA and claims.

Edited February 20, 2015 by Berta

[Berta]

One more question:

"07-2010 Abnormal EKG's"

Those EKGs might well read as noted with possible ischemia. Look in your medical records to see if that is earliest date of any abnormal EKG

That would help establish a proper EED.

"06-20-2012 VCAA Letter" I just noticed that.....

I assume it was for the IHD claim but cannot tell.

By the way, what VARO do you deal with?

Edited February 20, 2015 by Berta