tdiu Vcaa Notice

[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

[Wings]

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

[william n]

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

[Josephine]

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

[LarryJ]

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).

[Josephine]

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

[Berta]

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.