ptsd I Need Some Help On Locating A Precedent(sp) Wings, Anyone!

[Philip Rogers]

It took me 10 yrs to win 100% P&T, and on the way I won increases at each step, but in the end, the BVA awarded me 100%, P&T, retro to 1989, w/Chap 35 for my wife, at the time but they failed to award my daughter, Chap 35, then, and she was 19yo. As my daughter and I were/are estranged I didn't pursue the error. The VA is saying that the exam that awarded me P&T was done in 1997 and therefore my daughter was over the age. I'm saying that since I was awarded P&T, in 1999, retro to 1989, all the additional awards after the initial exam and award, which, btw, were for PTSD, are moot, as the original claim was under constant appeal and was eventually won, thereby voiding all subsequent claims/awards. I was awarded TDIU, w/P&T, in 1997 but the 100%, w/P&T, that was awarded in 1999 retro to 1989 voided that award.

I need a precedent that establishes that when the original claim is won, all subsequently awards/claims are moot or voided. I'm sure there's one out there, it's just that I'm not a good researcher.

We have a DRO hearing in about 2 wks, on her appeal. I'm thinking I should also file a CUE on the original BVA award, based on the failure to award my daughter, in the original decision. It's definitely a CUE. Thanks, all!

pr

[carlie]

pr,

Check this one too.

http://www.va.gov/vetapp04/files2/0412650.txt

[Philip Rogers]

Thanks Berta & Carlie!!! I'm on a public link right now and can't print what you've posted. I'm preparing the CUE, for the BVA(thanks for that insight, Berta), in the meantime, to deliver at the hearing, if necessary. Over the next few days I'll try to post the supplimental NOD we submitted. The CUE is just an afterthought, should we lose. My basic argument is that all subsequent exams and awards are moot as the retro award to the original claim date trumps anything after it. If I can locate that precedent, she'll win. My NOD covered her Chap 35 rights and dates, extensively. Thanks again!

pr

[Philip Rogers]

Berta, I have the current 2008, VBM. I've given my old volumes away. I'll check that when I get home. Thanks!!

pr

Good info-

I found something else too-

Philip-do you have any copy of the VBM (NVLSP) from 2001 or sooner edition?

They make the point that (on page 597 208 Edition)- that in 2000 COngess amended 38 USCS 5113 to provide retro Chapter 35 payments for the period beginning with the actual EED of the 100% P & T award as long as they are othrwise entitled to this benefit.

If you dont have the VBM-I will try to send this to you via email-I am not allowed to post or attach whole pages here per the copyright laws etc-per NVLSP-but NVLSP said I can refer to stuff in the VBM here at hadit.

These pages in the 2008 edition might help you a lot-

they also refer to the statute that provides when a reg is amended-and the newer reg is more favorable to the claimant than the older reg- then the newer reg becomes a liberalizing change for the claimant and has to be considered.

It might not be until tomorrow if you need this info-I always have an endless printing queue-

but this might be exactly what you need.

Also whenever VA Education sees a dependent is 26 they get a knot in their underwear and often deny without reading the claim and the circumstances.

Most dependent children can lose Chapter 35 when they turn 26.

Something all should keep in mind.

Best that the kids take advantage of this benefit as soon as they can to beat that 26 year old cut off date-which is extended only by military service periods in most cases.

[carlie]

pr,

I've read something like this also,

"My basic argument is that all subsequent exams and awards are moot as the retro award to the original claim date trumps anything after it"

But be damned if I can locate it now.

carlie

[deltaj]

It took me 10 yrs to win 100% P&T, and on the way I won increases at each step, but in the end, the BVA awarded me 100%, P&T, retro to 1989, w/Chap 35 for my wife, at the time but they failed to award my daughter, Chap 35, then, and she was 19yo. As my daughter and I were/are estranged I didn't pursue the error. The VA is saying that the exam that awarded me P&T was done in 1997 and therefore my daughter was over the age. I'm saying that since I was awarded P&T, in 1999, retro to 1989, all the additional awards after the initial exam and award, which, btw, were for PTSD, are moot, as the original claim was under constant appeal and was eventually won, thereby voiding all subsequent claims/awards. I was awarded TDIU, w/P&T, in 1997 but the 100%, w/P&T, that was awarded in 1999 retro to 1989 voided that award.

I need a precedent that establishes that when the original claim is won, all subsequently awards/claims are moot or voided. I'm sure there's one out there, it's just that I'm not a good researcher.

We have a DRO hearing in about 2 wks, on her appeal. I'm thinking I should also file a CUE on the original BVA award, based on the failure to award my daughter, in the original decision. It's definitely a CUE. Thanks, all!

Alright, let's start with the wording of 38 CFR 3.105 which pertains to clear and unmistakable error. What you need is a copy of each rating decision and the notification letter for each decision to see what date eligibility for chapter 35 benefits was granted in each decision. Under 38 U.S.C. 3512 dependents can choose the date of eligibility for chapter 35 or the date of notification of the veteran but to receive chapter 35 benefits a dependent must file a claim for chapter 35 dependents educational assistance.

[Philip Rogers]

Thanks, Delta! I've recently filed a CUE on my original award, stating that Chapter 35 should have been awarded, with it, and if not should have been awarded at the 5 yr mark, as P&T is met when the condition/disability has been in effect 5 yrs, without improvement. Just waiting to hear. Thanks, again!

pr