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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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