Veteranclaims’s Blog

February 17, 2021

Harris v. McDonough, No. 20-2547(DATED: February 16, 2021 PER CURIAM); character of discharge (COD); three Cheney conditions; Court holds that Mr. Harris is entitled to a writ compelling the Secretary to issue an appealable decision as to whether the evidence submitted since the April 2010 COD determination is new and material with respect to whether his COD is a bar to VA benefits; Secretary fails to explain why the potential to seek relief from a service department—an entity over which neither the Secretary nor this Court has jurisdiction, … ,—is an adequate alternative means of obtaining relief from VA’s alleged failure to carry out its statutory obligation to issue a decision affecting the provision of VA benefits or is in any way related to the regular appeals process for such decisions; Court hasn’t located—any authority permitting VA to decline to adjudicate a request to reopen a claim based on new and material evidence on the basis that the evidence in question is not new and material; the second Cheney condition, the Court has explained that petitioners have a statutory right to decisions affecting the provision of benefits. See 38 U.S.C. § 511(a); Chisholm v. McDonald, 28 Vet.App. 240, 243 (2016). Furthermore, petitioners have a “clear and indisputable right to such a decision.” Rosinski v. Wilkie, 31 Vet.App. 1, 11 (2019);

Filed under: Uncategorized — Tags: — veteranclaims @ 2:26 pm

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