Deshotel V. Nicholson

[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.

[LarryJ]

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 ).

[rigo]

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

[rigo]

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

[Berta]

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.