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Deshotel


rigo

Question

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

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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

Rigo,

Thanks for the great example. I listed the "deemed denied" claims in my NOD and VARO responded with an acknowledgement of the 2 deemed-denied claims as new claims. I expect at least one of the "new" claims to be granted. How do you suggest I NOD for an EED back to the original filing they ignored for these 2 claims? I'm a bit confused if this is different from your example or not.

Ralph

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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

Rigo,

Thanks for the great example. I listed the "deemed denied" claims in my NOD and VARO responded with an acknowledgement of the 2 deemed-denied claims as new claims. I expect at least one of the "new" claims to be granted. How do you suggest I NOD for an EED back to the original filing they ignored for these 2 claims? I'm a bit confused if this is different from your example or not.

Ralph

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Ralph, even though the VA considered your two (2) established claims as new, if you have the evidence you can file a claim back to the original date. When you receive the rating decision use that date with the example given. Hope this helps

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Fla Viking, you are correct, under Bell v Derwinski, the VA is deemed to have constructive knowledge of certain documents which are generated by VA agents or employees , but if those documents predate a Board decision on appeal, are within VA`s control and could reasonably be expected to be part of the record, then "such documents are, in contemplation of law, before the Secretary and the Board and should be included in the record." Rigo

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