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
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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