www.wvajustice.com

IT’S THE LAW

by Richard Cohen, Esq.

©2007 Richard Cohen

Cohen, Abate & Cohen, L.C.

Attorneys at Law

P.O. Box 846

Morgantown, WV 26507-0846

(304)-292-1911

vetlaw @wvajustice.com

httm:www.wvajustice.com

January 2007

IMPORTANT NOTICE!!

Because the President signed S.3421 on December 22, 2006, which amends 38 U.S.C. § 5904, effective June 22,20007 veterans and other claimants will have the right to hire a lawyer to represent them if their Notice of Disagreement (NOD) is filed on or after June 22, 2007.

Veterans, claimants, Veterans Service Organizations (VSOs), and non lawyer representatives need to be cautious about early filing of NODs regarding decisions dated June 23,2006 and later. The possible benefits of a quick filing must be weighed against the loss of the rights provided by the amendment to 5904 resulting from S. 3421. In many instances the veteran or claimant may decide to wait until June 22, 2007 to file the NOD so as to preserve the right to counsel during the DRO review and BVA appeal.

After June 22, 2007 VSOs and non lawyer representatives will still have their hands full with filing claims, monitoring the claims adjudication process, reading and interpreting rating decisions and filing NODs.

More thought needs to go into NODs now that the United States Court of Appeals for the Federal Circuit has decided that claims can be “deemed” denied by the VA without informing the veteran or claimant about the decision.

Mr. Deshotel was in a car accident during service which resulted in a concussion, a dislocated shoulder and a fractured collarbone. His 1984 claim for residuals of his head injury resulted in a decision granting benefits for head trauma and headache but the 1985 decision did not mention any claim for psychiatric disability. After he filed in 1999 to reopen the claim for memory loss and depression caused by the head injury, he was finally granted benefits in October 2000 for headaches and for mood, personality and thinking disorders caused by the accident but only going back to 1999.

In Deshotel v. Nicholson, 421 F.3d 1258 (Fed. Cir 2006) the Federal Circuit decided against the veteran€™s assertion that the 1985 decision was not final as to his psychiatric claim because it was never mentioned. Rather, the Court decided that what a veteran files more than one claim with the RO at the same time, and the RO€™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.

As a result of the ability of the VA to “deem” a claim denied without notice, which seems to violate VA regulations requiring notice of decisions, and which violates Constitutional rights of due process, NODs must include all claims and theories mentioned by the VA together with all claims and theories which were ignored by the VA. This places a heavy responsibility on VSOs and representatives to read the applications, statements, testimony ,medical records and other supporting documents to look for ignored claims which are “deemed” denied and which require a NOD to preserve the effective date. Although, the Court left an escape hatch in acknowledging the possibility of revising the earlier decision based on clear and unmistakable error (CUE), obtaining a revision based on CUE is very difficult.

Another case placing burdens on representatives is the recent case on informal claims. In this case the WWII veteran filed in 1945 for trenchfoot because of “exposure” during service and he received compensation for “frozen feet”. In 1947 an exam showed that he had frostbite damage to both his hands. His 1997 claim for benefits for his hands was granted in 1999, effective 1997, rejecting his assertion that he had an informal claim in 1947 for his frozen hands.

The Veterans Court decided in Criswellv. Nicholson ,___Vet App ___, 03-845, decided December 4, 2006 that the mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit.

As a result of Criswell, VSOs and representatives must read medical records, statements and transcripts very carefully to identify potential claims and then must write to the VA showing an intent to apply for benefits.

In contrast to the cases bringing bad news, two recent cases on equitable tolling are rays of light.

In Hunt v. Nicholson, ___Vet. App.__, 04-1970, decided December 13, 2006, veteran who was representing himself filed his appeal to the BVA, on time, but with the BVA instead of with the Regional Office, which had decided against him. Both the RO and the BVA said that his appeal would not be heard because it was filed in the wrong place. The Veterans Court disagreed finding that the time to file the appeal is extended or equitably tolled because the veteran was diligent and showed his intent to continue his appeal.

The question in Barrett v. Nicholson , ___F.3d ___, 05-7113, decided October 11, 2006 was whether the VA is required to help a veteran establish facts sufficient to prove that he is entitled to equitable tolling because of his PTSD which led to flashbacks and hallucinations. Disagreeing with the VA and with the Veterans Court, the Federal Circuit decided that the VA must provide the veteran with a medical examination to clarify the nature of his mental disability during the appeals period as well as any other evidence uniquely within the knowledge and competence of the government