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Cavc Stay On Chap 35 Case


Guest Berta

Question

Does anyone have any info on the Stay proceedings order by the CAVC on July 19,2005 re: Friedsam V Nicjolson?

Basically this widow took the VA to task on the unfairness of Chap 35-

I suggest that when you are declared P & T by VA -have your kids apply for Chap 35 immediately even if they are still minors!

Chap 35 regs are a crock!!!!!

As a widow my Chap 35 were ten years limiting-

I received the Chap 35 award letter in late 1997 and felt I had until late 2007 to complete my education.

But widows are limited to 10 years after death- so in my case or in the case of Ms Friedman above (who the VA took NINE years to grant her DIC)

the veteran's dependent children were too told (over 26) to be eligible for DEA (Chap 35)

I have read numerous BVA cases re Chap 35 as a friend of mine with new retro award of 100% P & T finds that it isnt covering the years he had to pay for college for 3 kids while he waited fr a proper VA decision.

This is a crock- I thought just widows and surviving children were being screwed but the VA is clearly denying Chap 35 to many dependents whose valid argument to the VA is

how can one apply for Chap 35 when they have no eligibility?

The VA regs suggest that a dependent (whether they know if they will ever be eligible or not) has to apply for DEA even if years before the P & T is awarded!

I say, using that VA logic that any vet with an SC disability below 30 % should apply for TDIU-even before the medical evidence warrants it!

As well as have their kids apply for Chap 35.

Of course that wont fly- so why should this-

I was sent two DEA applications with my award letter- stating Rod was 100% P & T

back to 1991. I got the letter in late 1997. The ten year delimiting date was not based on when I learned of my eligibility but on his date of death, Oct 14, 1994.

Well they cut off my Chap 35 in Dec 2004 and I have continued to pay my tuition myself and I think I Nodded the letter but need to duble check that today-

as when my present claim succeeds I expect another delimiting date-which I better get! After I graduate next spring I am enrolling into another degree program-

this is one big crock- here I find out many Chap 35ers aside from being survivors who get snookered are being denied too-

The CAVC order is two part-

There is a stay for 10 days following the Per Curiam (dated July 19th 2005)

Also the "parties" Friedsam and Nicholson should try to reach a "Mutually agreeable resolution of the case pursuant to 38 USC 5113 (:P or any other means-

where would to public's right to know provide the published resolution?

It is Sept 14 and I find nothing at CAVC yet on this-

maybe it is a secret so other vets and claimants cannot take advantage of it?

I guess I will have to contact the attorney representing this widow at CAVC (if she has one)

I am pretty thrilled that a widow has taken them on over how unfair Chap 35 is to all of you-

Say your child has excellent grades in high school but you cannot afford to send them to college.

Say after they struggle to get through college with your help, you get 100% P & T with a retro date that occurred during their college time-and the Chap 35 app-

for your dependents-

The VA MIGHT pay them one year retro tops if that-if they are still in school.

Wouldnt the VA have a responsibility to send every veterans dependent a Chap 35

application with each initial grant no matter if it is 10% and even not P & T?

The VA's position seems to be that only if prior application is made can retro be paid-

so they should send the application to every veteran's dependent -even if they are 3 years old!

I am really ticked at this whole situation-

and I am still ticked at the errors that VA Education dept made on my educational claim as well as my kids claim- which they fixed real fast-the errors occurred because they cant read.

Sorry for long gripe- ANY info at all regarding this Stay on 03-1432 Friedsam will be greatly appreciated.

:lol:

The BVA in 2003 actually stated that she should have filed DEA applications with her DIC claim! That is outrageous.

The BVA cannot make up a new reg! ;)

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OK- I got what I needed -since July 19th order there has been much more action on the proceedings-

they now have until Sept 17th to come to an agreement and I emailed the court to let me know fastest way to get copies of the agreement.

One of the Judges -Steinberg- as you know has retired so Judge Kasold will replace him on this action.

This widow is NOT taking No for an answer.

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  • HadIt.com Elder
Does anyone have any info on the Stay proceedings order by the CAVC on July 19,2005 re: Friedsam V Nicjolson?

Basically this widow took the VA to task on the unfairness of Chap 35-

I suggest that when you are declared P & T by VA -have your kids apply for Chap 35 immediately even if they are still minors!

Chap 35 regs are a crock!!!!!

As a widow my Chap 35 were ten years limiting-

I received the Chap 35 award letter in late 1997 and felt I had until late 2007 to complete my education.

But widows are limited to 10 years after death- so in my case or in the case of Ms Friedman above (who the VA took NINE years to grant her DIC)

the veteran's dependent children were too told (over 26) to be eligible for DEA (Chap 35)

I have read numerous BVA cases re Chap 35 as a friend of mine with new retro award of 100% P & T finds that it isnt covering the years he had to pay for college for 3 kids while he waited fr a proper VA decision.

This is a crock- I thought just widows and surviving children were being screwed but the VA is clearly denying Chap 35 to many dependents whose valid argument to the VA is

how can one apply for Chap 35 when they have no eligibility?

The VA regs suggest that a dependent (whether they know if they will ever be eligible or not) has to apply for DEA even if years before the P & T is awarded!

I say, using that VA logic that any vet with an SC disability below 30 % should apply for TDIU-even before the medical evidence warrants it!

As well as have their kids apply for Chap 35.

Of course that wont fly- so why should this-

I was sent two DEA applications with my award letter- stating Rod was 100% P & T

back to 1991. I got the letter in late 1997. The ten year delimiting date was not based on when I learned of my eligibility but on his date of death, Oct 14, 1994.

Well they cut off my Chap 35 in Dec 2004 and I have continued to pay my tuition myself and I think I Nodded the letter but need to duble check that today-

as when my present claim succeeds I expect another delimiting date-which I better get! After I graduate next spring I am enrolling into another degree program-

this is one big crock- here I find out many Chap 35ers aside from being survivors who get snookered are being denied too-

The CAVC order is two part-

There is a stay for 10 days following the Per Curiam (dated July 19th 2005)

Also the "parties" Friedsam and Nicholson  should try to reach a "Mutually agreeable resolution of the case pursuant to 38 USC 5113 (B) or any other means-

where would to public's right to know provide the published resolution?

It is Sept 14 and I find nothing at CAVC yet on this-

maybe it is a secret so other vets and claimants cannot take advantage of it?

I guess I will have to contact the attorney representing this widow at CAVC (if she has one)

I am pretty thrilled that a widow has taken them on over how unfair Chap 35 is to all of you-

Say your child has excellent grades in high school but you cannot afford to send them to college.

Say after they struggle to get through college with your help, you get 100% P & T with a retro date that occurred during their college time-and the Chap 35 app-

for your dependents-

The VA MIGHT pay them one year retro tops if that-if they are still in school.

Wouldnt the VA have a responsibility to send every veterans dependent a Chap 35

application with each initial grant no matter if it is 10% and even not P & T?

The VA's position seems to be that only if prior application is made can retro be paid-

so they should send the application to every veteran's dependent -even if they are 3 years old!

I am really ticked at this whole situation-

and I am still ticked at the errors that VA Education dept made on my educational claim as well as my kids claim- which they fixed real fast-the errors occurred because they cant read.

Sorry for long gripe- ANY info at all regarding this Stay on 03-1432 Friedsam will be greatly appreciated.

:blink:

The BVA in 2003 actually stated that she should have filed DEA applications with her DIC claim! That is outrageous.

The BVA cannot make up a new reg!  B)

<{POST_SNAPBACK}>

Berta, I don't have any information on the stay. I imagine you have read Ozer v. Principi, 98-57 at the U.S. Court of Veterans Appeals. Congress' response to that case was to enact Public Law 107-103 and in section 108 of that law they deleted section b OF 38 U.S.C. 3512 and even though the law was enacted in September 2001 congress made it effective for all determinations on claims for eligible persons as defined in certain sections of 38 U. S.C. 3501. I PERSONALLY THINK THAT THIS RETROACTIVE CHANGE IN 38 U.S.C. 3512 IS EX POST FACTO LAW WHICH IS UNCONSTITUTIONAL UNDER A SECTION OF THE U.S. CONSTITUTION WHICH FORBIDS EX POST FACTO LAW (WHICH IS RETROACTIVE LAW).ANY VETERAN WHO HAD CHAPTER 35 RECONVEYED IN A SUBSEQUENT DECISION AS A RESULT OF A V.A. EXAM AFTER A GRANT OF PERMANENT AND TOTAL FOR A SERVICE CONNECTED DISABILITY SHOULD READ V.A. OPG Prec. 56-91, a 1991 office of general counsel opinion concerning a second new 10 year period delimiting date for spouses of permanently and totally disabled veterans of 10 years from the date of the second decision granted a permanent and total rating.

Edited by deltaj
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  • HadIt.com Elder

I found the rules of Chapter 35 to be very unfair gioven how long it takes VA to make a decision that grants the benefit in the first place. I also found that the people who administer chapter 35 to be very fair. Sort of weird isn't it.

Any decison that goes against Veteran or family should be appealed.

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Delta- I sent them Ozer V Principi with my NOD on that matter but Ozer was overturned.

I expect a new date on my Chap 35 when they determine direct SC death- I will then have ten additional years from that date.

This will affect my daughters Chap 35 too-she has 7 years left due to military service and is enrolled in my school -American Military University and is all set up there to start her Masters in Intelligence next spring with VA and AMU.

I feel this is grossly unfair for all those out there who do NOT have proper rights yet on Chap 35.

I am not worried about my case here-

but I cannot imagine how many dependents of veterans have been adversely affected by these .ludicious regulations as to the entitlement dates compared to the effective dates on Chap 35.

By parsing words in the regs- the VA can actually award a VA enrollment Certificate and then it becomes worthless when the time limit is superceded by their interpretation of the effective and entitlement dates.

Like my kid- her Certificate of Enrollment stated she had one month of Chap 35, which they changed on the NOD right away to 7 years and one month-

The DEPENDENTS get these letters- not the veteran or the parent.

It is the dependent that they force to filed the NOD.

(of course I prepared it for her myself and she signed and sent it)

How many kids out here get this crap and do not get help with the claim?

Or the student-dependent gets a letter from VA Education that they do not send in NOD on-whose would help them on a campus in the middle of their first year?

Forget the SOs -most of them do not understand Chap 35.

It is forcing a disabled veteran to somehow help their Chap 35 dependent fight another battle of words and regs with the VA,involving a totally different set of regulations compared to VA claims.

Edited by Berta
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Guest Namvet6567

Berta - to the best of my knowledge the date is either the date of the award or the date of notification. The deadline starts with whichever date the awardee chooses. On a CUE it should either be the date of the original claim or when you get notified of the correction. 8 or 10 yrs from then. I'm still waiting for my daughter's claim to be aproved.

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Okay, I'm mostly lost in most of this. Now I need clarification.

Supposedly I'm now rated at 100%. But I haven't recieved the letter yet. Even though my claim is due to brain injury wich is irreversable, uncurable, (Permanant) I have a pretty good idea the VARO is not going to give me P&T status at this time. That is the way they work. I'll see in a couple days but I'm expecting the short straw.

My daughter graduates from high school this year and is going to college in the fall.

Is it in her best interest to turn in an application for benifits while I work on P&T status? From reading the posts, it seems that even though she would be denied, she would have grounds for retro payment. What would be the best approach at this stage?

Time

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