Denied VA Claims: Presidential Opinion of the VA General Counsel

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 Denied VA Claims: Presidential Opinion of the VA General Counsel, Number
3-2001 (known as "VAOPGCPREC 3-2001").  This opinion sets out legal
guidelines under the Veterans Claims Assistance Act of 2000 (VCAA) and
answers three questions for every veteran who has had a claim denied or whose
claim is pending appeal for being not well grounded.

      Final "Not Well-Grounded" Claims - If your claim has been denied
because it is not well grounded, and that denial is final, nothing in the
VCAA requires the VA to locate and readjudicate it. While the leadership
could direct such a search, they apparently have decided against it. Without
a timely request by you, the regional offices are not required to search for
denied claims for you on their own initiative. To be safe, you should request
that your claim be reopened and readjudicated.

     To be fair, as a policy matter, the VA will readjudicate claims under
the VCAA if they discover your claim denial while working on an existing
claim or remand, or if they learn of a denied claim through a third party
such as your congressman. But that does not change the fact that the burden
is still on you.  Only claims that were finally denied between July 14, 1999,
and Nov. 9, 2000 (the date the VCAA was enacted), may be readjudicated under
the VCAA, and no claim can be readjudicated after Nov. 9, 2002. Nov. 9, 2002,
is the absolute cut-off date.

      Dealing With A Closed Claim - If your claim was finally denied as not
well grounded, and you are within the time limits and ask the VA to
readjudicate your claim, the VA must treat it "as if the denial or dismissal
had not been made." That means their initial decision never happened. The
board's decision is gone, and the court's decision is gone. Those decisions
are "non-existent" because the board and the court now have no jurisdiction.

      It's a new ball game.  The VA must start, all over again, to develop
and adjudicate the claim as if it were new. And if you don't like that new
decision, you can and must appeal all over again. That's good news, because
all your appeal rights are still in place.

      "Not Well-Grounded" Claims - If your claim has not been finally denied
as well grounded, it's the same old ball game! If you appealed because your
claim was denied as not well grounded, you must continue your appeal. The
original decision Remains in place, but the appeal authority (the board or
the court) must apply the new law to make things right.

      Claim At the Regional Office - If your claim is at the RO and has been
denied as not well grounded, and your appeal period has not expired, get that
appeal or Notice of Disagreement ("NOD") filed before your time to appeal
expires. When you appeal, VA must issue a Supplemental Statement of the Case
taking the VCAA into account.

      Claim At the board - If your claim is at the Board, it will probably
treat the RO's denial of your claim as having no effect and remand it to
readjudicate your claim. However, you should check on your claim to make sure.

      Claim At the Court - If your claim is at the Court of Appeals for
Veterans Claims, they have probably already remanded it to the board, which
can readjudicate it or send it back to the RO.
Takes Time

     Remanding a case takes time, but it will keep your early effective date
intact. It also puts your claim on a better footing because the RO now must
develop and readjudicate your claim instead of saying it is not Well grounded
and blowing you off. Don't forget it is still your claim. Stay in
touch with the RO and find out what's happening to your claim. Don't assume
you have a guardian angel looking out for you. You may be disappointed.  
[Source: Guidance On The VCAA by Stars and Stripes Veterans' Advocate
attorney John E. Howell FEB 01]

      All the aforementioned may seem rather complicated. Bottom line, if
you have had a claim denied and/or is pending an appeal and are not sure what
to do about it contact your local Regional Office and ask. Better to check
now than to wait until after the time limits have elapsed to get it


"When the way comes to an end, then change - having changed, you pass through."

      I. Ching


 Bruce "Doc". Melson