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Deshotel V. Nicholson


rigo

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Hi everyone, its being a long time, came accross the decision Deshotel v Nicholson (What a piece of work by the VA against veterans claims). Sorry if this was posted before. This decision has the potential to turn the current non-adversarial Department of Vetrans Affairs (VA) claims adjudication process on its head as these two decisions could result in VA denying claims without making a specific decision and without providing procedural and appellate rights.

The Federal Circuit`s decisions in Deshotel and Andrews are specially harmful to veterans and their advocates because, until these recent decisions, veterans and their advocates (based on the back practices of the VA) did not know they had to appeal the failure of the VA to act on the specific and inferred claims. Now, as a result of Deshotel, representatives may have to file notices of disagreement (NODs) with many VA adjudications to protect the rights of the people they represent. Also claimants would have every right , under the Freedom of Information Act (FOIA), to request copy of their claims file so they could review the record for inferred claims. This, of course, would dramatically slow the VA adjudication process.

The American Legion, in consultation with the National Veterans Legal Services Program (NVLSP), is currently considering options to address the problems posed by these recent decisions, including a possible legislative remedy and/or requesting VA to amend its regulations to require specific notice with procedural and appellate rights before a claim is finally adjudicated. Such action are necessary in order to protect the non-adversarial nature of the VA claims adjudication process.

In the meantime, we offer the following guidance:

CLAIMS THAT HAVE NOT BEEN FINALLY ADJUDICATED

Whenever a claim is adjudicated by a regional office, the representative should consider filing a NOD with the "failure of the regional office to adjudicate all specific and inferred claims." The representative should also consider asking for a copy of the claim files if the claims file has not yet been reviewed. Representatives are advised to err on the side of caution. File an NOD and ask for a copy of the claims file where you are not certain that all claims have been adjudicated and that notice has been provided.

THE FOLLOWING IS SUGGESTED LANGUAGE (BOILERPLATE) FOR THIS NOTICE OF DISAGREEMENT

I disagree with all issues resolved or ignored by the decision dated [insert date of the notice letter] and wish appellate review. Recent Federal Circuit decisions hold that if a veteran files more than one claim with the RO at the same time, and the RO`s decision acts (favorably/unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal begins to run. Therefore, I file this notice of disagreement to protect my rights against the failure of the VA to adjudicate all my claims and the failure of the VA to notify me under 38 U.S.C. 5104.

Berta the VA totally has ignored the excellent CUE claim you prepared in 2004, still waiting for a rating decision.

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Rigo-

"Berta the VA totally has ignored the excellent CUE claim you prepared in 2004, still waiting for a rating decision."

Have they at least acknowledged receipt of your CUE?

My 2 CUES were filed in 2004 too and they already tried to screw them up.

However they are working on them now-I think they have to give CUEs to higher level employers-

(the literate ones)

Rigo- I just printed off your CUE (I always have it in my PC if you ever need another copy-and will look it over again today- perhaps in all this time- there might be a more recent CAVC decision you could send and I will look for one-anything such as another decision etc- as additional evidence might draw them out to respond to the original CUE.

I think the similiarly situated claims decided at CAVC that we cited were good ones to use -and I felt that you certainly had a good CUE claim.

What do they say at the 800# Rigo----as to the status?

You are well within the limits of Bell V. Derwinski as to Constructive Notice rule-

I just accessed the Office of General Counsel Pres Op on Bell- it could help-as to other statements VA counsel made in it-

and I will also search all more recent OG pres ops too-----

Anything we can send them -as additional evidence-will draw them out to respond- I hope-

because 2 years is a long time to wait and I believe you had an excellent basis for a CUE claim.

I will check this out today and respond.

By the way - did you send me a email copy of the 1993 SOC too? If so I will look for that-

They clearly violated VA established case law- as I understood your claim.

Edited by Berta (see edit history)
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Dear Berta

The VA has never acknowledge the receipt of the December 2004 CUE claim. In Feb 2005 receive a letter stating that they were working on my EED for my Post Traumatic Stress Disorder (PTSD) and they needed more evidence, the VA never stated that this issue of EED was part of the CUE claim presented in Dec 04

In the same letter under important information the VA stated:

"Your request for a rating of individual unemployability is a moot issue and no further action will be taken on this since you are already rated 100 percent service connected veteran. An unemployability rating would increase a veteran that is not 100 percent service connected to the identical 100 percent monetary monthly benefit that you are now in receipt of.

Berta, the VA conceded the issue of TDIU, but never mention that was a part of the CUE claim of Dec 04

The other thing I found out is that the VA never got my SSI information from Social Security and they pretended to have this info and use it as part of the evidence to denied several of my claims.

Requested my c-file and only one of the rating decision stated:

9411 Post-Traumatic Stress Disoder with Depression and Anxiety Attacks [Personal Trauma

PTSD/Sexual Assault/Harassment]

Service Connected, Vietnam Era, Incurred

100%

7805 Laceration Scars Both Wrists

Service Connected Vietnam Era, Incurred

0%

I never Knew the VA had recognized what I went through in service, at the same time hid this information from me, probably because I`m requesting aid and attendance. Who nows

Thank you Berta for your wisdom, kindness and prompt responce. Rigo

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Rigo-I would write to them or use the Inquery section at the VA web site and ask for the status of the CUE claim.

"The other thing I found out is that the VA never got my SSI information from Social Security and they pretended to have this info and use it as part of the evidence to denied several of my claims."

Yeah- I went through something like that too-Rod sent them his SSA award for PTSD and they said they would obtain the SSA records. Months and months passed. They then told 2 Senators and our Congressman that they tried to get them but SSA refused to send them.

I called SSA in Baltimore and after some time waiting for the right person to help- I found that-although Rod signed the authorization form for them to get these records-critical to his claim- the VA had never even requested them.SSA does not refuse to honor these requests.

But they did list them as evidence in one decision so it appeared that they had them- but they didnt.

It pays to track any VA request for SSI or SSA records.

You have to sign some sort of authorization form and then make sure they actually get them.

I went over your CUE and the CAVC decisions we cited and found nothing more current in the VBM that would add to it-those cases we cited were really good-

I still feel you presented a very good CUE regarding legal error and that their error should result in retro.

Beyrle V Brown ( specific to the same regs in place at time of your alledged CUE-1993

Russell V Brown-1992- page 5 of 11- and

they violated -as your CUE stated-38 USC 7104 (d):

) Each decision of the Board shall include—

(1) a written statement of the Board’s findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record; and

(2) an order granting appropriate relief or denying relief.

(whenever the VA stays the Board they also mean these apply the same way to all RO decisions)

I sure had to do some hand holding on my CUEs, Rigo-

I felt they were presented in the best way, brief and concise as to the 3 part criteria for CUE-- but the VA sure confounded the issues and I had to respond and clarify the issues.

At least I knew someone had read the CUEs and one was denied on a basis that also was clearly erroneous.

I pointed out this error to them right away.

Edited by Berta (see edit history)
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Is there now or shouldn't there be a flip side to Deshotel V. Nicholson? I understand the VA position denial of one claim constitutes denial of all.

Now what if the VA awards compensation for one of the conditions claimed for multiple conditions? And the decision only addressed the one condition in the claim out of the multiple conditions but neither denied or addressed the other conditions claimed?

In this case are the other multiple claimed conditions approved also even though they were never addressed in the rating?

Or are the other multiple conditions considered still open claims, since the VA never wrote anything addressing the decision for them?

It seems to me there are two sides to everything and I would think if the VA can deny one condition and it constitues all the others are also denied then the other side of the coin is if one is approved then all should be considered approved that were not initially addressed in the rating decision.

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Deshotel was the most bizarre decision I ever read at the CAVC.

In part:

"The Federal Circuit’s decisions in Deshotel and Andrews are especially harmful to veterans and their advocates because, until these recent decisions, veterans and their advocates (based on the past practices of the VA) did not know they had to appeal the failure of VA to act on specific and inferred claims"

This link from the AL gives some suggestions on these types of claims:

http://72.14.205.104/search?q=cache:YrcjB5...=1&ie=UTF-8

Peter Gaylan of the AL- a true advocate for veterans- made this following suggestion:

" Representatives are advised to continue to argue that because the claim was ignored and because the RO did not comply with 38 U.S.C. § 5104, the claim is still pending and the effective date should be from the original date of claim. The following is suggested language (boilerplate) for this notice of disagreement. In Richardson v. Nicholson, 20 Vet. App. 64 (2006), the CAVC held that appellants can 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 original date of claim when benefits were eventually granted. The veteran seeks appellate review. ********************************************************************************

***************

I felt I had an undecided and open issue from 1994. I asked for a decisionThe VA said this issue had been decided and then stated how- but they gave me support for an additional claim when they said that. Maybe this is why the VA itself re-opened an old CUE claim I had that was denied.

I think discussion at vet sites at the time of the Deshotel decision seemed to infer that if the vet has two claims pending and one is denied, then the other one would be denied too but this was really not the case with Deshotel and Andrews.

This was the crux of those decisions-

"until these recent decisions, veterans and their advocates (based on the past practices of the VA) did not know they had to appeal the failure of VA to act on specific and inferred claims" from Gaytan (American Legion)

I feel that-say a vet has positive evidence that she/he should be granted TDIU but only asked for a higher rating. The TDIU should be an inferred issue and if they don't act on the TDIU issue the vet has to appeal.

But how many vets would realise this-

and also how many vet reps suggest to a vet- look you got 50% -this is all you can get or you are not rated enough for TDIU consideration-

yet the medical evidence could well support a TDIU award as an inferred issue anyhow.

Edited by Berta (see edit history)
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Rigo-I would write to them or use the Inquery section at the VA web site and ask for the status of the CUE claim.

"The other thing I found out is that the VA never got my SSI information from Social Security and they pretended to have this info and use it as part of the evidence to denied several of my claims."

Yeah- I went through something like that too-Rod sent them his SSA award for PTSD and they said they would obtain the SSA records. Months and months passed. They then told 2 Senators and our Congressman that they tried to get them but SSA refused to send them.

I called SSA in Baltimore and after some time waiting for the right person to help- I found that-although Rod signed the authorization form for them to get these records-critical to his claim- the VA had never even requested them.SSA does not refuse to honor these requests.

But they did list them as evidence in one decision so it appeared that they had them- but they didnt.

It pays to track any VA request for SSI or SSA records.

You have to sign some sort of authorization form and then make sure they actually get them.

I went over your CUE and the CAVC decisions we cited and found nothing more current in the VBM that would add to it-those cases we cited were really good-

I still feel you presented a very good CUE regarding legal error and that their error should result in retro.

Beyrle V Brown ( specific to the same regs in place at time of your alledged CUE-1993

Russell V Brown-1992- page 5 of 11- and

they violated -as your CUE stated-38 USC 7104 (d):

) Each decision of the Board shall include—

(1) a written statement of the Board’s findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record; and

(2) an order granting appropriate relief or denying relief.

(whenever the VA stays the Board they also mean these apply the same way to all RO decisions)

I sure had to do some hand holding on my CUEs, Rigo-

I felt they were presented in the best way, brief and concise as to the 3 part criteria for CUE-- but the VA sure confounded the issues and I had to respond and clarify the issues.

At least I knew someone had read the CUEs and one was denied on a basis that also was clearly erroneous.

I pointed out this error to them right away.

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Berta ( and others ),

What I have done with my SSA records, to make sure that the BVA got them ( and got them before I die of old age! ), is, I filed a FOIA request with my local SSA office to actually see my SSA file. They were very nice about it and, in fact, made copies for me of everything that I needed.

As Alex has told me, so I try to be, as far as being proactive and providing ALL the records that the VCAA notice requires. I will not and do not depend on the gubbermint to take care of my claim ( that'd be kinda like leaving the fox to guard the hen house ).

If you will notice in your VCAA's, the statement that even though the VA will attempt to get all the records pertinent to your claim, it is your responsibility to MAKE SURE that they receive them ( even other files that other US agencies, such as the SSA, have in their possession ).

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Berta, the CUE claim that you presented is excellent, I think, the VA doesn`t want to deal with it. I dont understand how the VA can get away with so much garbage. What they did to your claim and the reasons given to explain their actions "I did not understand the medical evidence/terminology" that was the DRO`s explanation for the denial. What a waste of time. Did you know if she got fired? I hope she was put to rest. Berta, they dont know you are stronger, wiser, and you know how to kick assss. Rigo

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The American Legion, in consultation with the National Veterans Legal Services Program (NVLSP), is currently considering options to address the problems posed by these recent decisions, including a possible legislative remedy and/or requesting VA to amend its regulations to require specific notice with procedural and appellate rights before a claim is finally adjudicated. Such actions are necessary in order to protect the non-adversarial nature of the VA claims adjudication process.

Recent decisions by the United States Court of Appeals for the Federal Circuit in Deshotel v Nicholson (2006) and Andrews v Nicholson (2005) have the potential to turn the current non-adversarial Department of Veterans Affairs (VA) claims adjudication process on its head as these two decisions could result in VA denying claims without making a specific decision and without providing procedural and appellate rights

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Rigo- when my vet rep told me she said this, it was odd because he called me- he usually emailed me-

I had no hard copy proof-

but I told a Senator and everyone else I could think of at Buffalo VARO what she said.

"Did you know if she got fired" No I dont think she did- dont know if she is still a dro though-

What bothers me the most is that the vet rep said he presented my IMOs in the best light to her-and said he felt I succeeded in Benefit of Doubt---

but that it was his idea to get the VA "expert" opinion since she could not understand the medical opinion from Dr. Bash. He assured me the Bash opinion and the other brief IMO he referenced (from a VA doctor)would be given to the VA "expert" doctor.

Then I guess the DRO went to night school for Reading 101 because she understood the VA doctor's opinion (was in an SOC) but there was no mention at all of my IMOs-again----they had been there for over 1 year at this point.

Neither the vetrep nor the main office (I griped with written complaint ) had any record of the conference that the vet rep claimed

or what happened but the SOC clearly states that a conference between the rep and the DRO occurred and it was determined that a VA opinion was needed.

No mention at all of the IMOs I had that the vet rep said he presented to the DRO.

Something went down there-at this " conference" and I will eventually find out what happened.

By the way- I sued them for property destruction. I talked to VA Reginal Counsel a few weeks ago about this FTCA claim. VA lawyers are smart and they get it.If they ran the VARO -things would be much different.

I made the point that when a claimant has to pay real cash money for a costly IMO, only to have it ignored by the VA, after numerous submissions of it-I guess that means they damaged it beyond repair or destroyed it and they have to reimburse me for the cost.

(I sent copy to their Director at the VARO of this FTCA claim -naming her, the DRO, and someone else -forget who- as responsible for the obvious descruction of my IMOs- will see how that all turns out)

Larryj:

"As Alex has told me, so I try to be, as far as being proactive and providing ALL the records that the VCAA notice requires"

I feel this is absolutely the best advise-

I learned not to depend on the RO or on any vet rep to do anything I can do myself.

But many disabled veterans do not have the means or the skills to do these things.I see claims at the BVA where-early on a good POA could have advised the vet to do exactly what you stated-but didnt and the claim is either denied at the BVA or remanded for what th veteran could have obtained themselves.

I say follow that VCAA notice and get it yourself- as Larry says- and follow any BVA remand point by point as to what they still need.

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