- Joined
- Oct 23, 2006
- Messages
- 48
- Points
- 28
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.
For a full background on this issue, please read this story first...
http://www.vawatchdog.org/old%20newsflashes%20AUG%2006/newsflash08-01-2006-1.htm
Below is an email from an attorney who handles veteran's claims. He brings us up to date on the issue and explains the only remedy to the situation.
Pass this information to other veterans...then, we must start lobbying the new Congress to change this.
---------------
In July of this year I wrote to you regarding a decision of the U.S. Court of Appeals for the Federal Circuit (Fed. Cir.), Deshotel v. Nicholson, 457 F.3d 1258 (2006), about which I was concerned. The issue about which I wrote was the court's holding regarding claims "deemed denied." You posted articles about this case on your website. I wanted to bring you up to date.
On December 5, 2006, the Fed. Cir. denial Mr. Deshotel's petition requesting that the panel that decided the case reconsider that decision, and also denied an en banc (the entire court) reconsideration of that case.
http://www.fedcir.gov/weekly.txt .
Thus, the only judicial avenue of appeal remaining is to the U.S. Supreme Court, and after speaking with the attorney for Mr. Deshotel, I have learned that he does not intend to take an appeal to that court.
Therefore, the only method by which this insane decision may be overcome is by an act of Congress amending 38 U.S.C. § 5104, which formed the basis for the Fed. Cir.'s decision. That section provides:
38 U.S.C. § 5104. Decisions and notices of decisions
(a) In the case of a decision by the Secretary under section 511 of this title 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. (underling added for emphasis).
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.
The Deshotel decision does not contain a discussion of Congressional intent with regard to § 5104 and I believe that Congress' intent was that VA must provide notice, an explanation of the denial and right to appeal notification with regard to each and every claim filed by a veteran. Given the "veteran friendly" nature of the VA claims adjudication process, which even the Fed. Cir. has recognized in its prior decisions as being the intent of Congress, I have no doubt Congress did not intend for veterans' claims to be "deemed denied" without receiving the benefits of § 5104.
If Congress does amend Sec. 5104 it would have to be made retroactive, or all claims "deemed denied" prior to the enactment of the amendment would not benefit from the amendment.
I am hoping the Veterans Service Organizations will lobby Congress to amend § 5104 to make it clear that the requirements of that section apply to each individual claim filed by a veteran. But we need to get the word out that Congressional amendment of § 5104 is the only way this disastrous holding in Deshotel can now be remedied.
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.
For a full background on this issue, please read this story first...
http://www.vawatchdog.org/old%20newsflashes%20AUG%2006/newsflash08-01-2006-1.htm
Below is an email from an attorney who handles veteran's claims. He brings us up to date on the issue and explains the only remedy to the situation.
Pass this information to other veterans...then, we must start lobbying the new Congress to change this.
---------------
In July of this year I wrote to you regarding a decision of the U.S. Court of Appeals for the Federal Circuit (Fed. Cir.), Deshotel v. Nicholson, 457 F.3d 1258 (2006), about which I was concerned. The issue about which I wrote was the court's holding regarding claims "deemed denied." You posted articles about this case on your website. I wanted to bring you up to date.
On December 5, 2006, the Fed. Cir. denial Mr. Deshotel's petition requesting that the panel that decided the case reconsider that decision, and also denied an en banc (the entire court) reconsideration of that case.
http://www.fedcir.gov/weekly.txt .
Thus, the only judicial avenue of appeal remaining is to the U.S. Supreme Court, and after speaking with the attorney for Mr. Deshotel, I have learned that he does not intend to take an appeal to that court.
Therefore, the only method by which this insane decision may be overcome is by an act of Congress amending 38 U.S.C. § 5104, which formed the basis for the Fed. Cir.'s decision. That section provides:
38 U.S.C. § 5104. Decisions and notices of decisions
(a) In the case of a decision by the Secretary under section 511 of this title 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. (underling added for emphasis).
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.
The Deshotel decision does not contain a discussion of Congressional intent with regard to § 5104 and I believe that Congress' intent was that VA must provide notice, an explanation of the denial and right to appeal notification with regard to each and every claim filed by a veteran. Given the "veteran friendly" nature of the VA claims adjudication process, which even the Fed. Cir. has recognized in its prior decisions as being the intent of Congress, I have no doubt Congress did not intend for veterans' claims to be "deemed denied" without receiving the benefits of § 5104.
If Congress does amend Sec. 5104 it would have to be made retroactive, or all claims "deemed denied" prior to the enactment of the amendment would not benefit from the amendment.
I am hoping the Veterans Service Organizations will lobby Congress to amend § 5104 to make it clear that the requirements of that section apply to each individual claim filed by a veteran. But we need to get the word out that Congressional amendment of § 5104 is the only way this disastrous holding in Deshotel can now be remedied.
