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Tag: circumstances

Secretary concession SMC part of every claim for increase; The Secretary further concedes that because SMC is an issue within an increased rating claim, the Board should have considered whether the appellant filed a claim for an increased disability rating for his left eye condition earlier than January 2014 or, at a minimum, considered 38 C.F.R. § 3.400(o)(2), which allows under certain circumstances an effective date up to 1 year prior to the date of a claim for increase. Secretary’s Br. at 9.; the Secretary further concedes that, to the extent that SMC may be considered part of a claim for increased compensation, see Akles v. Derwinski, 1 Vet.App. 118, 121 (1991) (concluding that the RO “should have inferred from the veteran’s request for an increase in benefits . . . a request for [SMC] whether or not it was placed in issue by the veteran”), the Board should have addressed whether the appellant sought SMC through an increased rating claim for his left eye disability prior to January 2014 or whether 38 C.F.R. § 3.400(o)(2) applied. See Secretary’s Br. at 8-10. The Court will accept the Secretary’s concession, ;

Secretary concession SMC part of every claim for increase; The Secretary further concedes that because SMC is an issue within an increased rating claim, the Board should have considered whether the appellant filed a claim for an increased disability rating for his left eye condition earlier than January 2014 or, at a minimum, considered 38 C.F.R. § 3.400(o)(2), which allows under certain circumstances an effective date up to 1 year prior to the date of a claim for increase. Secretary’s Br. at 9.; the Secretary further concedes that, to the extent that SMC may be considered part of a claim for increased compensation, see Akles v. Derwinski, 1 Vet.App. 118, 121 (1991) (concluding that the RO “should have inferred from the veteran’s request for an increase in benefits . . . a request for [SMC] whether or not it was placed in issue by the veteran”), the Board should have addressed whether the appellant sought SMC through an increased rating claim for his left eye disability prior to January 2014 or whether 38 C.F.R. § 3.400(o)(2) applied. See Secretary’s Br. at 8-10. The Court will accept the Secretary’s concession, ;

by The Editor
July 13, 2022
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; Skip to content Posted in Uncategorized Tagged Case Law Post navigation Thanks for letting us know! This is how we ...

Hall v. McDonough, No. 19-8717 (Decided October 18, 2021); The particular form a claimant submits—correct or otherwise—has no bearing on the Board’s jurisdiction to hear an appeal. Although VA can require a claimant to fill out a particular form and can dismiss nonconforming or untimely filings in appropriate circumstances, none of this affects the Board’s jurisdiction to hear appeals of veterans benefits decisions. Only Congress (or the Constitution) can set the parameters for jurisdiction, so an agency can neither expand nor limit its own jurisdiction through regulation. And because there is no indication that Congress intended to limit the Board’s jurisdiction to cases where veterans fill out the correct form, we reverse the Board’s finding that it lacked jurisdiction and remand for further development.;

Hall v. McDonough, No. 19-8717 (Decided October 18, 2021); The particular form a claimant submits—correct or otherwise—has no bearing on the Board’s jurisdiction to hear an appeal. Although VA can require a claimant to fill out a particular form and can dismiss nonconforming or untimely filings in appropriate circumstances, none of this affects the Board’s jurisdiction to hear appeals of veterans benefits decisions. Only Congress (or the Constitution) can set the parameters for jurisdiction, so an agency can neither expand nor limit its own jurisdiction through regulation. And because there is no indication that Congress intended to limit the Board’s jurisdiction to cases where veterans fill out the correct form, we reverse the Board’s finding that it lacked jurisdiction and remand for further development.;

by The Editor
October 20, 2021
0

Hall v. McDonough, No. 19-8717 (Decided October 18, 2021); The particular form a claimant submits—correct or otherwise—has no bearing on the Board’s jurisdiction to hear an appeal. Although VA ...

Single Judge Application; writ; The Board’s decision to remand this matter, in order to obtain additional, and impliedly negative evidence, is an exercise of “naked and arbitrary power.” See Yick Wo v. Hopkins, 118 U.S. 356, 366 (1886) (Matthews, J.); In Wolfe v. Wilkie, 32 Vet.App. 1 (2009), we issued a writ even though the petitioner had the ability to appeal the matter to the Court. The circumstances here are similar in that regard and equally as egregious. This is illustrative of systemic legal errors that can be corrected in the context of a petition. See Mathis v. Shulkin, 137 S. Ct. 1994, 1995 (2017)(Sotomayor, J., concurring) (noting the continuing “dialogue over whether the current system for adjudicating veterans disability claims can be squared with VA’s statutory obligations to assist veterans in the development of their disability claims.”); (Gorsuch, J., dissenting)(“Congress imposed on the VA an affirmative duty to assist—not impair—veterans seeking evidence for their disability claims.”). The conduct of VA here is certainly emblematic of a systemic, bureaucratic disorder, which we are uniquely ordained to deal with;

Single Judge Application; writ; The Board’s decision to remand this matter, in order to obtain additional, and impliedly negative evidence, is an exercise of “naked and arbitrary power.” See Yick Wo v. Hopkins, 118 U.S. 356, 366 (1886) (Matthews, J.); In Wolfe v. Wilkie, 32 Vet.App. 1 (2009), we issued a writ even though the petitioner had the ability to appeal the matter to the Court. The circumstances here are similar in that regard and equally as egregious. This is illustrative of systemic legal errors that can be corrected in the context of a petition. See Mathis v. Shulkin, 137 S. Ct. 1994, 1995 (2017)(Sotomayor, J., concurring) (noting the continuing “dialogue over whether the current system for adjudicating veterans disability claims can be squared with VA’s statutory obligations to assist veterans in the development of their disability claims.”); (Gorsuch, J., dissenting)(“Congress imposed on the VA an affirmative duty to assist—not impair—veterans seeking evidence for their disability claims.”). The conduct of VA here is certainly emblematic of a systemic, bureaucratic disorder, which we are uniquely ordained to deal with;

by The Editor
August 23, 2021
0

Single Judge Application; writ; The Board’s decision to remand this matter, in order to obtain additional, and impliedly negative evidence, is an exercise of “naked and arbitrary power.” See Yick ...

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