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"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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    • Enough has been said on this topic. This forum is not the proper forum for an attorney and former client to hash out their problems. Please take this offline
    • Peggy toll free 1000 last week, told me that, my claim or case BVA Granted is at the RO waiting on someone to sign off ,She said your in step 5 going into step 6 . That's good, right.?
      • 7 replies
    • I took a look at your documents and am trying to interpret what happened. A summary of what happened would have helped, but I hope I am interpreting your intentions correctly:


      2003 asthma denied because they said you didn't have 'chronic' asthma diagnosis


      2018 Asthma/COPD granted 30% effective Feb 2015 based on FEV-1 of 60% and inhalational anti-inflamatory medication.

      "...granted SC for your asthma with COPD w/dypsnea because your STRs show you were diagnosed with asthma during your military service in 1995.


      First, check the date of your 2018 award letter. If it is WITHIN one year, file a notice of disagreement about the effective date. 

      If it is AFTER one year, that means your claim has became final. If you would like to try to get an earlier effective date, then CUE or new and material evidence are possible avenues. 

       

      I assume your 2003 denial was due to not finding "chronic" or continued symptoms noted per 38 CFR 3.303(b). In 2013, the Federal Circuit court (Walker v. Shinseki) changed they way they use the term "chronic" and requires the VA to use 3.303(a) for anything not listed under 3.307 and 3.309. You probably had a nexus and benefit of the doubt on your side when you won SC.

      It might be possible for you to CUE the effective date back to 2003 or earlier. You'll need to familiarize yourself with the restrictions of CUE. It has to be based on the evidence in the record and laws in effect at the time the decision was made. Avoid trying to argue on how they weighed a decision, but instead focus on the evidence/laws to prove they were not followed or the evidence was never considered. It's an uphill fight. I would start by recommending you look carefully at your service treatment records and locate every instance where you reported breathing issues, asthma diagnosis, or respiratory treatment (albuterol, steroids, etc...). CUE is not easy and it helps to do your homework before you file.

      Another option would be to file for an increased rating, but to do that you would need to meet the criteria for 60%. If you don't meet criteria for a 60% rating, just ensure you still meet the criteria for 30% (using daily inhaled steroid inhalers is adequate) because they are likely to deny your request for increase. You could attempt to request an earlier effective date that way.

       

      Does this help?
    • Thanks for that. So do you have a specific answer or experience with it bouncing between the two?
    • Tinnitus comes in two forms: subjective and objective. In subjective tinnitus, only the sufferer will hear the ringing in their own ears. In objective tinnitus, the sound can be heard by a doctor who is examining the ear canals. Objective tinnitus is extremely rare, while subjective tinnitus is by far the most common form of the disorder.

      The sounds of tinnitus may vary with the person experiencing it. Some will hear a ringing, while others will hear a buzzing. At times people may hear a chirping or whistling sound. These sounds may be constant or intermittent. They may also vary in volume and are generally more obtrusive when the sufferer is in a quiet environment. Many tinnitus sufferers find their symptoms are at their worst when they’re trying to fall asleep.

      ...................Buck
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