Click To Ask Your VA Claims Question
Read Disability Claims Articles
View All Forums | Chats and Other Events | Donate | Blogs | New Users | Search | Rules
- 0
Deshotel
Rate this question
Click To Ask Your VA Claims Question
Read Disability Claims Articles
View All Forums | Chats and Other Events | Donate | Blogs | New Users | Search | Rules
Rate this question
Question
rigo
The U.S. Court of Appeals for Veterans Claims (CAVC) recently issued two decisions (Richardson v. Nicholson, 20 Vet. App. 64 (2006); and Ingram v. Nicholson, Vet. App. No. 03-2196, (July 12, 2006)). These decisions appear to narrow the impact of Andrews but they may be trumped by Deshotel which was issued after both CAVC decision by a higher court, the Federal Circuit
CLAIMS FOR RETROACTIVE BENEFITS WHERE THERE WAS A DEEMED DENIED CLAIM
This type of claim presents itself when a regional office grants service connection for condition Y but the effective date established by the RO is arguably incorrect because the claim should have been considered by an earlier (non final) adjudication. Because this area of veterans` law is still in flux. advocates are advise to continue to file claims for retroactive benefits with regard to finally adjudicated claims if a regional office, in the past failed to adjudicate a claim that was reasonably before the RO, or the RO failed to provide proper procedural and appellate notice.
The representative should file a CUE claim against the original decision
based on the failure of the RO to consider disability Y . The representative should argue that the
failure of the VA to recognize and adjudicate the claim that was ignored constitutes clear and
unmistakable error (CUE). If such a claim is denied, the advocate should file a NOD to buy time in the
hope that Deshotel is overturned (by a higher court or by Congress).
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 THID NOTICE OF DISAGREEMENT
In Richarson 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.
Hope this helps. Rigo
Link to comment
Share on other sites
Top Posters For This Question
3
2
Popular Days
Nov 22
2
Nov 23
2
Nov 21
1
Top Posters For This Question
rigo 3 posts
Objee 2 posts
Popular Days
Nov 22 2006
2 posts
Nov 23 2006
2 posts
Nov 21 2006
1 post
4 answers to this question
Recommended Posts