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Objee

"deemed Denied"

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From VAWatchDog.com:

"VA'S "DEEMED DENIED" RULING WILL NOT BE APPEALED TO SUPREME

COURT -- The bombshell "deemed denied" ruling states that when VA acts

on one claim but does not address other claims, the other claims are

deemed denied. VA does not have to provide veteran with notice of

denied claims. No appeal means that only Congress can change this ruling."

What's this mean? I'm no attorney, but until one responds I suggest that we

read all our claims filings very carefully. We tend to have laundry lists of

injury and disease claims and may not recognize something can be interpreted

as a claim.

If it's a disease or injury and you mention OR INFER it, I recommend you consider

it a claim and if not mentioned in a decision letter, NOD each one to qualify for a

formal appeal.

Ralph

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I told the VA that I was exposed to AO, in 1975, 1985, 1992, and 2001. I was Blue-Water Vet, with VSM, and the claims were not even answered or addressed. Therefore Deemed Denied.

If Blue-Water Vets, are now granted AO exposure, the VA would have to pay a lot of money out, unless the claims were denied at an earlier effective date. Deemed Denied is just a way for the VA to cover their past misinterpretation of congressional laws. This means that the claims would have to be reopened with a latter effective date.

What the VA doesn't even look at, was that these old claims were before the CVAC existed. They will have to be re-worked, regardless of VA failure to follow the law.

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In Deshotel:

"under the rule articulated in Andrews, if Deshotel believed that the RO improperly failed to address his claim for psychiatric disability benefits when it granted service connection for his head injuries in 1985, his remedy was either to file a timelydirect appeal or to file a CUE claim seeking to reopen the 1985 RO decision. Here, no direct appeal was filed, and a CUE claim was abandoned. The Veteran’s Court therefore properly dismissed Deshotel’s appeal for lack of jurisdiction. CONCLUSION For the foregoing reasons, the decision below is affirmed. AFFIRMEDCOSTS No costs.

Note 3--In Andrews, after treating the 1985 decision as final, we went on to hold that although the VA was required to construe all of the pro se veteran’s pleadings (including CUE claims) sympathetically under Roberson, that requirement did not apply to pleadings filed by counsel. Andrews, 421 F.3d at 1283. Thus even if the RO in 1985 had failed to sympathetically construe the veteran’s pro se application, counsel’s failure to raise this error in the subsequent CUE motion was fatal. Id.

This is a facinating decision-but must be considered in a complete reading as well as the context of Andrews-as far as "deemed denied" goes-

Deshotel went Pro se to the court ( I don't think that was good move at all )

But Andrews at some point seemed to have an attorney yet the CUE error issue was not raised in the motion.

The American Legion has a good take on this which I posted here in the past-

But maybe many here should do what I did to avert any Deshotel -Andrews crap from the VA-they will interpret this decision in the best light for VA possible.

Last year I sent the VSM a letter specifically indentifying my claims and the issues for a clarification from her.

She responded -got them a little mixed up but basically she acknowledged each of them and so they have to decide them.

Deshotel felt his EED was wrong because he claimed the VA did not infer that he had a psychiatric condition from a 1984 claim. I dont see how the VA erred there.

He was awarded back to 2000 but claimed retro to 1984.

Also he raised this as a CUE issue but changed the nature of the CUE by the time it got to the BVA and thus the BVA and the court had no jurisdiction over the CUE they received.

Based on my reading of this case, I feel the court's decision was correct-Deshotel did not raise the psychiatric issue in his 1985 claim strong enough for them to even infer it.

And even if the VA had enough med evidence to infer it- still I sure would not depend on the VA to infer a single thing.

HOWEVER- if Deshotel had come to hadit- I bet the outcome would have been "manifestly" different!

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In Deshotel:

"under the rule articulated in Andrews, if Deshotel believed that the RO improperly failed to address his claim for psychiatric disability benefits when it granted service connection for his head injuries in 1985, his remedy was either to file a timelydirect appeal or to file a CUE claim seeking to reopen the 1985 RO decision. Here, no direct appeal was filed, and a CUE claim was abandoned. The Veteran’s Court therefore properly dismissed Deshotel’s appeal for lack of jurisdiction. CONCLUSION For the foregoing reasons, the decision below is affirmed. AFFIRMEDCOSTS No costs.

Note 3--In Andrews, after treating the 1985 decision as final, we went on to hold that although the VA was required to construe all of the pro se veteran’s pleadings (including CUE claims) sympathetically under Roberson, that requirement did not apply to pleadings filed by counsel. Andrews, 421 F.3d at 1283. Thus even if the RO in 1985 had failed to sympathetically construe the veteran’s pro se application, counsel’s failure to raise this error in the subsequent CUE motion was fatal. Id.

This is a facinating decision-but must be considered in a complete reading as well as the context of Andrews-as far as "deemed denied" goes-

Deshotel went Pro se to the court ( I don't think that was good move at all )

But Andrews at some point seemed to have an attorney yet the CUE error issue was not raised in the motion.

The American Legion has a good take on this which I posted here in the past-

But maybe many here should do what I did to avert any Deshotel -Andrews crap from the VA-they will interpret this decision in the best light for VA possible.

Last year I sent the VSM a letter specifically indentifying my claims and the issues for a clarification from her.

She responded -got them a little mixed up but basically she acknowledged each of them and so they have to decide them.

Deshotel felt his EED was wrong because he claimed the VA did not infer that he had a psychiatric condition from a 1984 claim. I dont see how the VA erred there.

He was awarded back to 2000 but claimed retro to 1984.

Also he raised this as a CUE issue but changed the nature of the CUE by the time it got to the BVA and thus the BVA and the court had no jurisdiction over the CUE they received.

Based on my reading of this case, I feel the court's decision was correct-Deshotel did not raise the psychiatric issue in his 1985 claim strong enough for them to even infer it.

And even if the VA had enough med evidence to infer it- still I sure would not depend on the VA to infer a single thing.

HOWEVER- if Deshotel had come to hadit- I bet the outcome would have been "manifestly" different!

The Article 1 & 3 courts have a "duty to protect" a pre se litigant that doesn't exist when the litigant has counsel. I've always gone to court with the analysis and advice of counsel, but as a Pro Se or Pro Per litigant. Didn't happen that often, but worked like a charm when I did, In one case, opposing counsel couldn't believe the amount of court protection I received. Forced a pretty good (for me) courthouse steps settlement. Not a win, but definitely not the possible loss either!

The most basic rule is still "prepare your case for appeal - if you do, the trial will take care of itself."

Ralph

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On paper the VA is supposed to be on the Vets side. If you believe that I have a Bridge for sale in Brooklyn cheap.

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    • Yes 

      After a PTSD/Unspecific MDD Diagnose From the VA Dr's

      The gold standard for diagnosing PTSD is a structured clinical interview such as the Clinician-Administered PTSD Scale (CAPS-5). When necessary, the PCL-5 can be scored to provide a provisional PTSD DSM 5 diagnosis.

      Any clinical clinician such as MD ,Psychiatrist even a L.C.S.W. (Certified)can perform the Diagnostics Evaluation Employed by the the VA

      ...They just need to figure out your symptoms and put together a list of your symptom's that you possess or show from the evaluation...I am not 100% Sure just how they do this ?

      being I am not a Dr or clinical clinician 

      Once a Diagnoses of PTSD is given they try to set you up with a Therapist to help with your New dx And how to adjust or cope with the Anxiety and Depression the PTSD can cause.

        you learn the tools to cope with and depending how severe your symptoms are ? 

       They test /screen you with phychoeducational type therapy treatment usually at first.

       Warning  some of this therapy can be very rough on a Veteran  from holding on to guilt  from the trauma its self or you maybe in a  ''stuck point''from memories and guilt or from the stressor's or anything that reminds you of the trauma you endured.

      The therapy works  even if we think it don't,  I recommend Therapy for all PTSD Veterans  it could very well save your life once the correct therapy is in place and the Veteran makes all his Clinical Appointments.

      I still have Combat PTSD it probably will never be cured completely but we can learn the tools it takes to cope with this horrible diseases 

      even learning breathing techniques  Helps tremendously during a panic attact.

      I have guilt from the war in Vietnam  ( I ask my self what could I have done to make a better outcome/difference?..and also I am in what the therapist calls stuck points. working on that at present once a week for 90 minutes.  I am very fortunate to have the help the VA gives me and I am lucky I have not turned to alcohol or drugs to mask my problem.

      But I have put my family through a living hell with my angers of burst.and they all stood by me the whole time years and years of my family life was disrupted because of me and my children &spouse  never deserved it one bit.

      That's all I want to say about that.

      At least I am still around. and plan to be tell my old age dying day.
    • No timeframe gotta love that answer it’s even better when you ask 1800 people or call the board directly they’ll say you’ll know sooner then later. I had mine advanced and it was about 2 months later until I had the decision in my hand which seems forever but in the present system in 2016 lightning fast...
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    • I am serviced connected for ankylosing spondylitis back in 1985. I had a C&P exam on 7-7-19 since I am asking for an increase in my cervical, thoracic, and lumbosacral ratings. After speaking with the DAV to find out progress and info on my exam, the Rep. noted sort of what I expected. Radiculopathy was noted and ROM was 0-15 for cervical, and 0-25 for back. I am currently rated as Cervical 30%, Thoracic 10%, and Lumbosacral 40%. The main question that I have is relating to the thoracic 10% and lumbosacral 40%. I am confused on these two. Is Lumbosacral separate from the thoracic/others ? Since my back ROM is at 0-25, does this mean that my thoracic might increase from the 10% to a higher rating ? I am confused how they break down my ratings from cervical at 30%, Thoracic at 10%, and Lumbosacral at 40%. Also, with the radiculopathy, is this something that they will rate also ? I am currently at 90% total combined for all my disabilities. I hope this helps for someone to give me advice/answers.
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    • Thank you @GeekySquid for your reply. 

       

      I have redacted personal information for my documents listed below. 

      I look forward to your reply. 

      HEADACHE STR 2006 copy_Redacted.pdf

      HEADACHE-DBQ.pdf

      Pages from Original Denial-Grant Reasons_Redacted.pdf
    • Hello Defenders of freedom!

      I have a question pertaining to this denial for headaches. The decision letter is quoted below. 

       

      3. Service connection for headaches.

      "We may grant service connection for a disability which began in military service or was caused by some event or experience in service.

      Your STRs are negative for any treatment of or diagnosis of headaches. On your post-deployment exam in 2005 you denied any headaches. On separation, you denied any headaches. VA treatment records are negative for any treatment of or diagnosis of headaches. On VA exam, the examiner stated there was no evidence of any residuals of a traumatic brain injury.

      We have denied service connection for headaches because the evidence of record fails to show this disability was incurred in or caused by military service."

      From my understanding these 3 points must be overturned to successfully win a CUE case:

       (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions in existence at that time were incorrectly applied; 

      (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time of the prior determination

      and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question.  

      @Berta, or veterans out here who have knowledge/experience, tell me what facts you think would be needed to prove this denial for headaches was an error? 
      • 14 replies
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