Subj: Application Of 38 U.s.c. § 7722

[allan]

Subj: Application of 38 U.S.C. § 7722

To: Chairman, Board of Veterans' Appeals (01)

QUESTIONS PRESENTED:

a. What is the scope of any obligation imposed on the Secretary of Veterans Affairs under 38 U.S.C. § 7722, or any other legal authority, to inform individuals concerning benefits to which they may be entitled?[1]

b. Does the assumption that the Department of Veterans Affairs (VA) knew or reasonably should have known of an indi­vidual’s eligibility for VA benefits have any bearing on the Secretary’s notification obligation?

c. Are the provisions of any applicable notification law or regulation, including section 7722, applicable from the date of their enactment or retroactively?

d. May a failure to provide required notification to a claim­ant be the basis of a grant of an earlier effective date of an award of VA benefits and, if so, what is the legal authority to deviate from the criteria pertaining to effective dates of awards?

[1] You have requested our views regarding the scope of VA’s notification obligation under section 7722 “or any other legal authority,” and we note that a duty to provide notice or information to claimants may sometimes arise under statutory provisions other than section 7722. See, e.g., 38 U.S.C. §§ 3563, 5107(a). However, because we believe that section 7722 provides the sole notification obligation pertinent to the specific facts described in your opinion request, we have limited our analysis to the scope of the duty under that provision. The scope of VA’s obligation may differ under other statutory provisions.

http://www.va.gov/ogc/docs/1995/Prc17-95.doc

[WhoopAssSmitty]

Subj: Application of 38 U.S.C. § 7722

To: Chairman, Board of Veterans' Appeals (01)

QUESTIONS PRESENTED:

a. What is the scope of any obligation imposed on the Secretary of Veterans Affairs under 38 U.S.C. § 7722, or any other legal authority, to inform individuals concerning benefits to which they may be entitled?[1]

b. Does the assumption that the Department of Veterans Affairs (VA) knew or reasonably should have known of an indi­vidual's eligibility for VA benefits have any bearing on the Secretary's notification obligation?

c. Are the provisions of any applicable notification law or regulation, including section 7722, applicable from the date of their enactment or retroactively?

d. May a failure to provide required notification to a claim­ant be the basis of a grant of an earlier effective date of an award of VA benefits and, if so, what is the legal authority to deviate from the criteria pertaining to effective dates of awards?

[1] You have requested our views regarding the scope of VA's notification obligation under section 7722 "or any other legal authority," and we note that a duty to provide notice or information to claimants may sometimes arise under statutory provisions other than section 7722. See, e.g., 38 U.S.C. §§ 3563, 5107(a). However, because we believe that section 7722 provides the sole notification obligation pertinent to the specific facts described in your opinion request, we have limited our analysis to the scope of the duty under that provision. The scope of VA's obligation may differ under other statutory provisions.

http://www.va.gov/ogc/docs/1995/Prc17-95.doc

Allan,

I feel most of these questions are already answered "loud and clearly" with either the CFR and VA's "duty to assist" or with the "VA directives."

These 2 guidelines alone tells VA they have to exhaust every method available to assist the veteran in compiling his/her claim!

It also requires VA to tell the vet what he/she needs in order to present and win a claim and

how he/she should respond, if they don't have a solid enough claim presented in order to win.

I've seen as many claims won, by using the VA's own mistakes and the blatant disregard for these 2 regulations, than with filing things like a CUE or even filing appeals.

In all honesty, the more loop holes the lawyers help find, the more wiggle room is developed for a vets claim to be denied.

JMHO.

Whoop

[Berta]

Thh Veterans CLaims Assistance Act of 2000 clearly enhanced all DTA duties that the VA has.

Unfortunately the VA has failed to honor the enhancement--- as the tremendous backlog at the BVA reveals-

(also as referenced in Chairman Terry's Annual BVA report, the past OGC reports on this (from 2005 I think),

countless testimonys at the H VAC hearings,from NVLSP, DAV, etc- and witnessed by THOUSANDS of veterans and widows- who-after spening monthss and years at a RO only to be transferred to the BVA and then 2 years later-to be remanded back to the RO for a re-do- because the RO violated the VCAA.

and vet reps never questioned the VCAA violations -when they could have.

Whoop said:

"I've seen as many claims won, by using the VA's own mistakes and the blatant disregard for these 2 regulations, than with filing things like a CUE or even filing appeals"

I completely agree!!!! when in battle, as you overrun the enemy you take the weapons and ammo from their casualties and use them against the enemy if you run out of ammo-

the same principle applies here-

with VA claims-

and I am thrilled when I can use their regs against them-

My Chapter 35 error and then my daughter's Chap 35 error were immediately rectified when we sent them their regs on these benefits-

their erroneous decisions were changed in 3 weeks.

[Berta]

And dont forget that you can ask the VA to CUE itself-I did that twice successfully-

but it depends on the situation-

I got a DRO so called denovo sameo sameo review Cued by the VSM and some other thing in the late 1990s by asking them to cue their erroneous decision.

Cue claims can be filed by vets-only on final VA decisions-

OR by asking them to Cue themselves on a pending issue decision supported by legal argument.(not medical argument)

[Wings]

x

x

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I have used 38 USC 7722 in my VA Claim for Earlier Effective Date (my Claim is now at the BVA).

Since that time, I have read beautifully written arguments by veterans at the Fed Circuit level of appeal, and the VA continues to state that it does not have the Duty to inform veterans of "potential" benefits.

Their argument is that only the act of filing a speciific claim will trigger the duty to assist. The first rule is that the veteran must specifically ask for the benefit sought --with specificity!

The VA HIDES potential benefits from all veterans, the only way to find out is to do your own homework.

I wish I could find some of the older USC Sec. 7722 arguments at the Court. ~Wings

[william n]

Great Post...Ty...William N