Dea Benefit Cue?

[hawkfire27]

Hi all I have recently posted regarding my DEA benefits being denied based on the fact that the eligibility period of ten years had ended. However we weren't married and therefore I was not an eligible person at that time so I could not have eligibility determined.

Wellllllllllll. The congressman got involved and I received a statement of case which shows they did not review thee vidence I sent in in support of my claim, and that they continue to deny me.

"Evidence:

The veteran C&P record (No mention of any other evidence I put in, though the rep on the phone says my evidence was adjudicated on the 19th October last year)

Decision:

The denial of DEA was correct

Reasons and bases:

The Spouse of a veteran that was found ot have total and service connected disability for VA purposes has 10 years to use DEA benefits. VA cannot extend the 10-year period based on date of veterans marriage.

The Rating Decision in veteran's C&P file reflects the date of rating as July 1996 and the vet was notified on September 1996. A spouse of this veteran could begin utilizing DEA benefits as late as September 1996. Therefore the 10 year eligibility period ran out on September 2006.

The date of marriage has no bearing on the veterans determination for DEA benefits... The date of marriage is use solely to determine the earliest a claimant can receive DEA benefits if eligibility is established. Education benefits can not be paid prior to the date of marriage. Even though the claimant was not married to the veteran when VA determined the veteran 100% SC disability, the claimant is still bound by the 10 year eligibility period for spouses. Denial of DEA benefits was appropriate."

Any thoughts?

Edited April 21, 2010 by hawkfire27

[Wings]

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Dear Hawkfire, This is an important Issue --and thank you for persuing it! I have been rated 100% TDIU for 10 years; if I married tomorrow, I would think my spouce (as would yours) would benefit from Chapter 35. The VA Law in this respect appears less than clear. Would you kindly post a link to Cypert vs. Peake??? Thanks! ~Wings

[pacmanx1]

Wings this is what I found.

http://www.judicialview.com/Court-Cases/Ed...Statute/20/5666

[deltaj]

I think you should appoint a knowledgable service officer in an organization like DAV as your power of attorney and appeal this denial on the grounds that V.A. has interpreted 38 CFR 21.3046 © contrary to 38 USC 3512 (b) (1) (A). I suggest you remind V.A. in your appeal that you didn't become an eligible person as defined in 38 USC 3501 (a) (1) (D) until you married the veteran.

[Berta]

I would seek Landon E. Overbay- attorney- to represent me on this- He won the Cypert Case

Then again the VA failed to list as evidence the Cypert Case and I assume this claimant had sent it to them.

[JustPLS]

Thanks for your input hadit members!

One problem. I would request a DRO hearing but I only have 60 days to submit my appeal to the BVA.

________________________

VA writes (with the SOC in response to NOD)

You must file this appeal within sixty days from the date of the letter or within the remainder, if any of the one year period from the date of the letter notifying you of the action you are appealing. (Both date end on about 60 days) If we do not hear from you within this period, we will close your case.

Further on: PLease incdicate on the supplied VA Form 9 whether or not you would like a hearing and the type of hearing you would like, if any.

Even further on: After we recieve you appeal we will send it on to the BVA in Washington DC for a decision. The BVA will base its decision on an independent review of the entire record, includng the transcript of the hearing, if you have a hearing.

__________________________

OK soI'm trying to figure out how to get a DRO in the 60 day time frame and still have time to file an appeal to the BVA with a BVA hearing, if the DRO doesn't help me.

Any ideas anyone???? I live in the middle of nowhere and the local VSO has no idea about DEA benefits or claims and gave me the number of someone about 4 hours drive away....So I'm kinda stuck. Please help?

Hawkfire,

I may be completely off base, and I hope others will jump in if I am.

My understanding is that IF you request a DRO hearing with the form 9, they will not send the file to the BVA until after that hearing is held. So, you have to answer the SOC within 60 days, and select the type of BVA hearing you choose (or no hearing at all), but you also get to choose a VARO DRO hearing (My VARO sent another form along for me to choose a DRO hearing in addition to the type BVA hearing).

I think it is absolutely necessary to do all this within the 60 day time frame allowed, or else your appeal will die a natural death. Good luck!

Edited June 15, 2010 by JustPLS

[hawkfire27]

Hey berta.

I did contact Landon Overby but he will not pick the case up unless it goes to the CAVC. So for now were on our own with the BVA.

I would seek Landon E. Overbay- attorney- to represent me on this- He won the Cypert Case

Then again the VA failed to list as evidence the Cypert Case and I assume this claimant had sent it to them.