HadIt.com Elder Josephine Posted August 24, 2008 HadIt.com Elder Share Posted August 24, 2008 I don't see where this VCAA notice is telling me a thing. In the package with it was notification of the C&P examination. As you can see I marked to go ahead and rate the claim, I guess it is for TDIU, it doesn't say. Betty Link to comment Share on other sites More sharing options...
HadIt.com Elder Wings Posted August 24, 2008 HadIt.com Elder Share Posted August 24, 2008 x x x I never got anything more than the standard form that Betty posted. So, the VCAA is actually something MORE? Could someone post what an acutual, legally sufficient VCAA Notice is supposed to look like? ~Wings Link to comment Share on other sites More sharing options...
william n Posted August 25, 2008 Share Posted August 25, 2008 Hello Wings, Im sorry i cant post it but i can tell you its very informative and spells out exactly what i needed(very thorough) to award a claim for benefits. B) The part they leave out is u better have a mountain of evidence. Mine was 4 pages front and back, though i submitted 4 claims at one shot. One, the PTSD/MDD(primary,secondary), claim i asked to be seperated from my original claim and they did that. Sorry i couldnt post it, just felt like talkin... B) Peace, William Link to comment Share on other sites More sharing options...
HadIt.com Elder Josephine Posted August 25, 2008 Author HadIt.com Elder Share Posted August 25, 2008 William. I am like Wings, I have never received anything as you are describing. I did not receive anything any different from the Appeals Management Center either. Maybe someone will post one for us to look at . Thanks, Betty Link to comment Share on other sites More sharing options...
HadIt.com Elder LarryJ Posted August 25, 2008 HadIt.com Elder Share Posted August 25, 2008 I'm just posting the below as an indication of what a VCAA letter/notification/statement embodies, and, if y'all haven't gotten a TRUE and SUBSTANTIAL notification, via a VCAA (Veterans Claims Assistance Act) letter, then you've got substantial grounds for appeal, etc.: Citation Nr: 0810837 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 05-40 807 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to Dependency and Indemnity compensation (DIC) under 38 U.S.C.A. § 1318 (West 2002). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD A. C. Mackenzie, Counsel INTRODUCTION The veteran served on active duty from August 1946 to October 1954 and from January 1955 to April 1967. He died in December 2003, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The appellant appeared for a Board hearing before the undersigned Acting Veterans Law Judge in January 2008. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). A proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim, that VA will seek to provide, and that the claimant is expected to provide; and must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a); C.F.R. § 3.159(B)(1). Any error in VCAA notification should be presumed prejudicial, and VA has the burden of rebutting this presumption. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) reaffirmed principles set forth in earlier Federal Circuit and United States Court of Appeals for Veterans Claims (Court) cases in regard to the necessity of both a specific VCAA notification letter and an adjudication of the claim at issue following that letter. See also Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson, 20 Vet. App. 537 (2006). The Mayfield line of decisions reflects that a comprehensive VCAA letter, as opposed to a patchwork of other post- decisional documents (e.g., Statements or Supplemental Statements of the Case), is required to meet VA's notification requirements. At the same time, VCAA notification does not require an analysis of the evidence already contained in the record and any inadequacies of such evidence, as that would constitute a preadjudication inconsistent with applicable law. The VCAA letter should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a VCAA notification letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. In the present case, the veteran was issued a VCAA letter only in May 2006, after she had perfected her appeal in this case. At no point was the case subsequently readjudicated in a Supplemental Statement of the Case. In view of the Mayfield line of decisions, this constitutes a procedural error requiring a remand for correction. 38 C.F.R. § 19.9 (2007). Moreover, as this appeal concerns a claim of service connection for the cause of the veteran's death, the Board has also considered the decision of the United States Court of Appeals for Veterans Claims (Court) in Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). In this case, the Court determined that VCAA notification in such cases must include: (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Id. The May 2006 VCAA letter does not meet all of these criteria and will need to be corrected by a more thorough letter. Accordingly, the case is REMANDED for the following action: 1. The appellant should be sent a corrective VCAA letter, encompassing: (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service- connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. The letter should also provide the necessary VCAA notification for entitlement to DIC under the provisions of 38 U.S.C.A. § 1318. 2. Unless the appellant's appeal can be granted in full, she and her representative should be furnished with a Supplemental Statement of the Case addressing the claims on appeal. The appellant should be allowed a reasonable period of time in which to respond before this case is returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ JOHN L. PRICHARD Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(B) (2007). Link to comment Share on other sites More sharing options...
HadIt.com Elder Josephine Posted August 25, 2008 Author HadIt.com Elder Share Posted August 25, 2008 Thanks Larry, Being that my claim is also coming out of the Huntington, R.O, this tells me they do this all the time. Thanks again, Betty Link to comment Share on other sites More sharing options...
Berta Posted August 25, 2008 Share Posted August 25, 2008 Someone posted a real VCAA letter here in the past- And the election Notice- I have never recived a legal complaint VCAA letter and election notice in over 5 1/2 years for my AO claim. I DID receive a VCAA letter for a separate claim-but it is so screwed up I dont think a copy of it here would help anyone and I had to ask VA exactly what claim it was for. A complaint VCAA Notice tells the vet or widow everything the VA needs from them. If a claim was pending before the 2000 VCAA was signed into law- the VCAA still covers those claims. The Dingess Hartman criteria is here under a separate topic and I recently posted hpw important the Kent decision is to the VCAA. Mayfield is here somewhere at hadit too- If I had not taken steps and action to get my claim remanded fast-I would have waited 2 years for a BVA decision just like this widow got in the case posted here yesterday. Another wait for a long re-do at the VARO level- as it is my remanded claim has been there for two years next month. The BVA said there was some sort of a cut off date (Aug 16th) but that date has come and gone- The Election Notice triggers the VA to consider your evidence. My medical evidence has never been considered yet after 5 1/2 years because they never sent me the legal VCAA letter nor the election notice. I used my own case as an example of the thousands of claims that are improperly handled by the ROs this way- as support for an amendment to the VCAA- I have contacted 3 or 4 COngressmen so far to propose this amendment- Unfortunately I have been so busy regarding other AO issues and also a personal VA FOIA and OGC issue that I have not continued to pursue this amendment aggressively- maybe in the long run-the matter I have at the OGC will help document how critical it is for someone-either the claimant or their POA- to make sure they get a proper VCAA letter from the RO as soon as they file their claim. Some reps are working hand in hand with the ROs to ensure some claims will be in the system for years- by failing to challenge a deficient VCAA notice right away. The VA has to actually read your claim in order to develop a proper VCAA letter.They are not doing that in every case and are sending out generic VCAA forms that will set up a long stint at the BVA for an eventual remand. Link to comment Share on other sites More sharing options...
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Josephine
I don't see where this VCAA notice is telling me a thing.
In the package with it was notification of the C&P examination.
As you can see I marked to go ahead and rate the claim,
I guess it is for TDIU, it doesn't say.
Betty
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