Deshotel Knocked Down

[Berta]

http://vawatchdog.org/nfDEC06/nf122406-4.htm

"The basis for the Fed. Cir.'s decision in Deshotel was that the statute required only that VA provide notice, an explanation of the denial and right to appeal notification with regard to each decision VA issues, and not as to each claim filed by the veteran. Thus, the Fed. Cir. held, if the veteran simultaneously filed 5 claims, for example, and VA denied one of those claims, the other four would be "deemed denied," and the veteran would never be notified of those denials. "

[Stretch]

Any time that 5 claims are linked together; only one is denied; there is no other word on the other claims, should spark an immediate NOD in General listing all of the claims.

Vague General actions like these are a desperate move on the part of the VA to once again divide, complex, and absolve responsibility to the Veterans Detriment.

Edited December 24, 2006 by Stretch

[Guest fla_viking]

Dear Fellow Veterans & Friends

IT was the court not the VA that authorized this. If the VA gives no reason or basis for there denials of the other claims. How will the court review those claims. Or have we lost the right to appeal also.

Terry Higgins

[Guest fla_viking]

Dear Fellow Veterans & Friends

I have a CUE claim at the BVA. And a claim at the RO for Fee services. If the RO denys my fee service claim. Does that mean BVA does not have to answer my CUE claim?

Terry Higgins

[dougbo1943]

If you had IRIS Inquirys answered by E-mail on a claim that says in some way they are still working the claim (at rating board, will be done 30-90 days) from the VA, even though the VA lied, could you not use their answer that the claim was still alive ifthey came up later and said it was denied with another claim.

Maybe this could help some that may fall in this trap.

Gunny

[RockyA1911]

Berta/Vike17

OK, this is the second time I have asked this question without getting an answer. Here it goes:

"What about if there are is one decision where there are two claims. The decision was approved (not denied) but only mentioned granting comp for only one of the claims and did not mention the other claim of an entirely separate nature?" "Does this mean both claims are also approved, since there never was a denial of the other claim?"

For example I had claimed Left Temporal Lobe contusion, chronic due to TBI and also Skull Loss exceeding size of 50-cent piece which under the CFR 50%. Rating Decision awarded just 10% for post concussion residuals and never mentioned the skull loss. The rating decision is over 30 years old.

Is this a CUE, Open Claim, or both since there was no formal written adjudication of the Skull Loss claim submitted on the same claim form, same day, as the TBI Left Temporal Lobe Contusion, Chronic.? The C&P neurologist at the VA in 1976 reported the size of the skull loss, EEG, and X-RAY findings in the C&P exam report of which were all a result of the same TBI occurence.

[Objee]

http://vawatchdog.org/nfDEC06/nf122406-4.htm

"The basis for the Fed. Cir.'s decision in Deshotel was that the statute required only that VA provide notice, an explanation of the denial and right to appeal notification with regard to each decision VA issues, and not as to each claim filed by the veteran. Thus, the Fed. Cir. held, if the veteran simultaneously filed 5 claims, for example, and VA denied one of those claims, the other four would be "deemed denied," and the veteran would never be notified of those denials. "

Time for a bit of paranoia . . . . .

It appears that the CAVC took an Article 3 court's approach to VBA silence on claims asserted. Lack of response is a denial in "normal" law. The sticky problem could be that, under the "VA law" approach to claims, VBA is supposed to treat anything mentioned that could possibly be a claim as an informal claim.

In the extreme, this would mean that anything you mention as a wound, disease or injury could be construed as a separate claim and the RO's silence on it would be a denial.

Until we get either a contrary opinion from the CAVC or a senior court or case law develops more clarity about this we have a big problem figuring out just how to handle it. I recommend that we closely review ALL filings made as claims and Statements in Support of Claims for careless mention of other medical problems.

Once a Decision Letter is issued, ANYTHING not included that might be a claim is "deemed denied." I ain't no lawyer, but I can spell "law."!

Yecch!

Ralph