Heads-up, VA claimants: New, negative court ruling re: multiple claims

[UTUSN]

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(Source: VAWatchdog.Org http://www.vawatchdog.org/ - VA NEWS FLASH - 08-01-06 #1 ++)

Multiple Claim Submission

VA Claim Denial Update 01: A new case decided on 27 JUL 06 by the U.S. Court of Appeals for the Federal Circuit could have negative ramifications for veterans and their dependents. The Court held that "where the veteran files more than one claim with the VA Regional Office at the same time, and that office's decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run ."

The case was Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005) which can be viewed at www.fedcir.gov/opinions/05-7155.pdf. This means, in contravention of 38 U.S.C. Sec. 5104 and 38 U.S.C. Sec. 3.103, that:

- VA does not have to provide the claimant with notice of the claim or claims that have been "deemed denied" or the reasons for the denials, and

- The period in which to submit a notice of disagreement with the claims deemed denied begins to run from the date of the decision on any of the other simultaneously submitted claims.

- An unrepresented or poorly represented claimant could have the time to appeal the "deemed denied" claims run out without even knowing that the claims had been denied! The new ruling also puts in question existing sections of 38 U.S.C . which state:

(a) In the case of a decision by the Secretary under section 511 of this title (38 USCS para. 511) affecting the provision of benefits to a claimant, the Secretary shall, on a timely basis, provide to the claimant (and to the claimant's representative) notice of such decision. The notice shall include an explanation of the procedure for obtaining review of the decision.

(b) In any case where the Secretary denies a benefit sought, the notice required by subsection (a) shall also include (1) a statement of the reasons for the decision, and (2) a summary of the evidence considered by the Secretary.

(c) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3.

(d) The right to notice -- (1) General. Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice shall clearly set forth the decision made, any applicable effective date, the reason(s) for the decision, the right to a hearing on any issue involved in the claim, the right of representation and the right, as well as the necessary procedures and time limits, to initiate an appeal of the decision.

A legal opinion on whether this applies to both related and unrelated claims was that it did. For example, if a veteran files claims for a back disability, tinnitus and a psychiatric disability, all at the same time, and only one of those claims is adjudicated, the others are deemed denied under the holding of this case. If no notice of disagreement is submitted within 1 year, the decision becomes final, and the veteran would have to submit new and material evidence in order to reopen those claims. If any of those claims are eventually granted, the effective date of compensation could only be from the date of the request to reopen those claims, rather than the date of filing for the original claims. This also generates the problem of how a veteran could submit a claim for CUE (clear and unmistakable error) with specificity, as the law requires, when there has been no reason given for the denials.

VA has not yet released a press release or clarification on how they intend to proceed with present or future multiple claims. Veterans in this situation who receive notice of denial on any of their claims are advised to seek clarification from the VA on how to proceed. However, since DVA has not yet promulgated guidance to their ROs on how to proceed those inquiring may have to wait for an answer.

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