Several of you have emailed me concerning the effective date of your claims. There seems to be a lot of misinformation about this. I received an interesting article put out by several “scholars” at VA, or perhaps quoted by VA, on the subject.
While the gentlemen do a bang up job of tracing the history of this through the ages from Congress’ enactment of the VJRA, the judicial rationale is constantly shifting. In most cases it is in favor of the vet-marginally. It see saws back and forth as you will read.
Here’s John Fussell and Johnathan Hagar’s synopsis of how we’ve been blessed. I disagree with many concepts of it. Do not mistake that sentence. The legal concepts are futile to object to. I can no more change that than hold back the tide as King Canute attempted. My argument is based more on future litigation. Since law evolves and is not static, new interpretations are constantly “discovered” concerning the existing law. Each new inspection of a conundrum elicits yet anew more conjecture, more law and more trees cut down to immortalize it on paper.
One thing this article never addressed is the concepts embodied in VAOPGCPREC 9-97 where a Vet submits a NOD with new and material evidence and the VA fails to issue a SSOC. This is clearly covered in numerous VA regulations yet no discussion is forthcoming. I can cite a few examples of BVA decisions as they are more frequent.
First look at 9-97 http://www4.va.gov/ogc/opinions/1997precedentopinions.asp
Consider any of the following:
Some of these contingencies are not considered in the article.
Now consider King v. Shinseki (2010) and how it applies to this discussion.
Section 3.156(b) is intended to be a veteran-friendly provision that allows for the assignment of an effective date of the date of the original claim when certain requirements are met. 72 Fed. Reg. 28,778 (May22, 2007) (explaining that §§ 3.156(b) and 3.400 “provide a claimant-friendly effective date rule for awards based on evidence received while a claim is on appeal or before the appeal period expires”). To accept the Secretary’s position that the Board correctly determined that the September 1996 RO decision was final would be to allow VA to ignore this claimant-friendly provision. It would also create the possibility that VA, by not considering evidence submitted during the one-year appeal period following the RO decision and simply waiting for the RO decision to become final, deprived the appellant of the earlier effective date associated with his December 1995 claim. This would be antithetical to the nonadversarial, claimant-friendly nature of VA proceedings. See Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007) (noting “VA’s uniquely pro-claimant benefits system”); Young v. Shinseki (2009) Muehl v. West, 13 Vet.App. 159, 161 (1999) (holding that records constituting new and material evidence received within one year after RO decision rendered RO decision nonfinal); 38 C.F.R. § 3.400(q) (2009) (providing that, as to new and material evidence received within appeal period, “effective date will be as though the former decision had not been rendered”).
Thus, if such new and material evidence had been submitted and had not been acted upon, Mr. King’s claim could still be pending until a decision had been made on that evidence. See 38 C.F.R. § 3.160(c) (2009) (“pending claim” is “[a]n application, formal or informal, which has not been finally adjudicated”); see also Ingram v. Nicholson, 21 Vet.App. 232, 240 (2007) (“[A] claim remains pending–even for years–if the Secretary fails to act on a claim before him.”)
King v. Shinseki (2010)
From King, it can be deduced that any new evidence submitted during an appeal, sans an inspection of same, operates to suspend the adjudication until it can be determined to be admissible under 3.156(a). There is no requirement at the time that it be material. Mere failure to obey §19.31 and §19.37(a)[ 38 USC §7105(d)] and issue an SSOC makes it an incomplete adjudication or a “pending claim “as envisioned in §3.160(c). When it is finally examined de novo, an appropriate disposition can ensue determining the material value and whether it relates to an unestablished fact necessary to substantiate the claim.
The article does not discuss estoppel. Here, for your edification, is a brief overview of the legal concept.
Equitable estoppel prevents one party from taking a different position at trial than they did at an earlier time if the other party would be harmed by the change. Generally, the elements that need to be proved are:
There must be a representation or concealment of material facts.
These facts must be known at the time of the representation to the party being estopped.
The party claiming the benefit of the estoppel must not know the truth concerning these facts at the time of the representation.
The representation must be made with the intention or the expectation that it will be acted upon.
The representation must be relied upon and acted upon.
The party acting upon the representation must do so to his or her detriment.
Estoppel by laches precludes a party from bringing an action when the party knowingly failed to claim or enforce a legal right at the proper time. This doctrine is closely related to the concept of statutes of limitations, except that statutes of limitations set specific time limits for legal actions, whereas under Laches, generally there is no prescribed time that courts consider “proper.” A defendant seeking the protection of laches must demonstrate that the plaintiff’s inaction, Misrepresentation, or silence prejudiced the defendant or induced the defendant to change positions for the worse.
Now let’s look at equitable tolling:
Definition – Noun
: a doctrine or principle of tort law: a statute of limitations will not bar a claim if despite use of due diligence the plaintiff did not or could not discover the injury until after the expiration of the limitations period
This is where most of us will employ the GCPREC 9-97 defense. If we discover our claim is not final due to inaction (or the wrong action) of VA, the claim remains pending and equitable tolling of the finality is for application.
While I am not a law dog, these precepts are useful to grasp the intricacies of this. A claim is not over until the fat lady sings or the Fed. Circus says it is. This is the last word currently on it from the Supremes (Irwin v. Dept. of Vet. Affairs 1990)
I have a question? In 2003 I filed a claim for R wrist disability. In 2004, I received a 10% rating and I perfected my appeal to the Board claiming a higher rating and loss of use due to pain. In 2007, the Board remanded the R wrist claim requesting a C&P examination to determine if the wrist should have a higher rating and loss of use. After waiting over 2 years, in 2009 I file a writ to the Court, and the Court order the Board to conduct a C&P exam within 15 days. I received a maximum rating of 70% and loss of use. The Board set the effected date as the date of the C&P exam. I filed a formal CUE claim arguing the effected date should be the date of claim since I appeal the RO decision and the Board remanded the case. (Pending claim doctrine) The Board and the Court denied my claim.
Are they correct in stating there was no error in the decision because I could not rely on the 2003 date of claim. Let me also note that the Board and the Court never discuss the remand or three year delay waiting for a C&P exam that could have been completed within three months.
So dos any of this apply to someone that has been waiting since 2008 for a BVA decision? I get some of this.
Yes. At this stage, you would be advised to start wondering if you have a VSO. They are supposed to keep you in the loop. If they aren’t, you have problems. If it’s just being remanded to death, you must need a nexus. Otherwise, I’d advise filing for a Writ of Mandamus at the CAVC and demand they finish the job.
Nod, they have been non exsistant and still haven’t made a decision. First, my files where sent to Waco TX becuse they THOUGHT I had moved to Austin when all I did was go there for a vacation to visit my son. Then my files disappeared but reappeared back in Little Rock AR. Then the appeals team called me and tried to tell me I had a claim for hearing loss associated with tinnitis. These people know nothing. Hell they called back and admitted they were looking at the wrong file. So where and do I file for this writ? Who is the CAVC and how do I contact them? Thanks for the advice,,
Go to https://asknod.wordpress.com/2012/05/08/writs-of-mandamus-useful/ and read it. If you are set on going to the Court of Appeals for Veterans Claims (CAVC) you send in $50.00 with your claim unless you feel you are indigent. You explain your problem and beg for relief from the Court. It is referred to as an Extraordinary Writ or simply a Wrti of Mandamus that specifically begs the them to tell the VA bozos to hurry it up or explain why they cannot. You can explore this idea at http://www.uscourts.cavc.gov/ If you decide to do it, we’ll give you a quick how to on filing it. Chances are poor you will get the writ, but odds are extremely high that VA will get off their ass to find out what the problem is.
Man this is turning out to be a real nightmare. I printed out all the forms and am getting ready to call the CAVC. My DAV rep is clueless. He said I had to wait for a decision from the BVA in order to file an appeal. I laughed and said I wanted to file a writ of Mandamus. He was still clueless. I cannot figure out why this is taking so long. The BVA issued two remands, one for the 1151 claim, and one for my other issues. HCV, anal leakage associated with ulcer disease, and my right hand. I am currently rated at 50% SCC. 40% for ulcer with dumping syndrome and 10% for tinnitis without hearing loss. I believe that they are stalling because they don’t want me to get 60% for my ulcer disease, which will make me eligible for unemployability, thus the VA will have to pay me 100%. Vocational Rehab has determined that I am unemployable.
My HCV was diagnosed 1995 at VAMC. My vso lied to me about filing for SC. My CUE and appeals for SC is 2001 denial. CUE filed in 2009 along with other appeals. I never saw my denial SOC or informed I had a hearing at the RO. I am assuming my CUE would go back to original denial 2001 if I prevail? This stuff would confuse a flea on speed. Currently I am waiting for so called expert opinion at the BVA to decide my CUE and appeal for SC. Hurry up and wait…
A CUE win for the 2001 denial must consist of an error of fact or law in 2001, Either the facts as they were known by the examiner were wrong or the interpretation of the law was incorrect. The error must be obvious such that others can see it, The error must have manifestly changed or altered the outcome of the decision against you. It must be based on the laws as they were written in 2001 and no later than the date of your published decision, The error must be specifically described in detail if necessary.Broad brush allegations of deprivation of due process must be identified with precision.
I agree. BUT will the BVA judge agree with my evidence of an altered document obvious to all? I sent you a copy of the altered C&P. How can it be ignored again? I think the so called medical expert delay is to impute Dr Cecil more favorable nexus opinion. A remand or ? Glad you understand this corrupt system of justice. I don’t…
That I cannot say. All three legs of the CUE must be met.
What if a Veteran’s PCP diagnoses the HCV and the Veteran then opines that he can only think of risks in Service? Could he then get an effective date of the diagnosis date or the claim date?
If your PCP was a VA doctor, it would be incumbent upon him to set the wheels in action. This is construed as a two-way street. The courts have said you have to “evince” a desire to file a claim. This would be a true, informal claim. If you failed to file a 21-526 with the RO within a year, it would expire and the day you did file would become your effective date. Most doctors are dolts and unaware of their responsibility to Vets in this regard. It should always be in the VA records, too. What the hell. They already enter weird stuff when they write in them anyway.