How Can You Disagree With Decision For Start Date Of Dependency

[Bonzai]

I have searched for an answer, and the closest I have found is Carlie's answer in the following post:

http://www.hadit.com/forums/index.php?showtopic=27591

I will be as brief as I can. In Aug 2006, I was awarded 30% and sent in my marriage certificate along with a letter stating mine and my wife's previous divorces. In Oct 2006, was denied having a dependent, because the rater said original copies of the divorce decrees were needed. I had absolutely no idea of how to get a copy of mine, and my wife was to find out how to get hers. During this time, my bipolar condition was rapidly deteriorating and my major concern was trying to keep a hold of my job. I spent a lot of time in the hospital and my medications were changed frequently. I was increased to 50% in Sept 2007, and had to resign my job in Jan 2008. My wife had filed for SSI, and I spoke to her lawyer, who recommended another NOVA lawyer to assist me. Luckily, I was able to file a NOD on my 50% with the year time limit, and the NOVA lawyer said that the VA had a Duty to Assist me with problems in claiming dependents.

So I contacted the VA, who then directed to me to my local Veterans Service Officer. He flatly told me that the VA's Duty to Assist only applies to obtain Federal Government Records, and not divorce decrees. So I went back to the NOVA lawyer, who advised me to contact the state I was married in, and I did so. I was informed by them that I had to contact the state I was divorced in; which I did and sent them a fee to search for it. Luckily, they found it and I finally received a copy. So I sent in the originals with a explanation of the delays in obtaining the requested paperwork. I just recieve my award that they are going to start paying my for my wife as of Aug 1, 2009.

My question: Is it worth pursuing an earlier start date, because I don't feel I was really competent to handle my affairs efficiently as evidenced by GAF scores of 50 (most recent) or 58 (highest during time period in question).

The reason I am not doing this with the NOVA lawyer, is he said that he will get enough from a favorable decision for my NOD on my bipolar condition. Maybe he just figures it is a waste of time, I don't know. But I would really love the start date I feel I am entitled to.

Thanks for any suggestions, even if it's just to tell me to let it go. I can work myself up about these things.

Louis

[Bonzai]

I have found the following:

TITLE 38 - PENSIONS, BONUSES, AND VETERANS' RELIEF

CHAPTER I - DEPARTMENT OF VETERANS AFFAIRS

PART 3 - ADJUDICATION

subpart a - PENSION, COMPENSATION, AND DEPENDENCY AND INDEMNITY COMPENSATION

3.109 - Time limit.

(a) Notice of time limit for filing evidence. (1) If a claimant's application is incomplete, the claimant will be notified of the evidence necessary to complete the application. If the evidence is not received within 1 year from the date of such notification, pension, compensation, or dependency and indemnity compensation may not be paid by reason of that application (38 U.S.C. 5103(a)). Information concerning the whereabouts of a person who has filed claim is not considered evidence.

(2) The provisions of this paragraph are applicable to original applications, formal or informal, and to applications for increased benefits by reason of increased disability, age, or the existence of a dependent and to applications for reopening or resumption of payments.

If substantiating evidence is required with respect to the veracity of a witness or the authenticity of documentary evidence timely filed, there will be allowed for the submission of such evidence 1 year from the date of the request therefor. However, any evidence to enlarge the proofs and evidence originally submitted is not so included.

( Extension of time limit. Time limits within which claimants or beneficiaries are required to act to perfect a claim or challenge an adverse VA decision may be extended for good cause shown. Where an extension is requested after expiration of a time limit, the action required of the claimant or beneficiary must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. Denials of time limit extensions are separately appealable issues.

(Authority: 38 U.S.C. 501) [26 FR 1569, Feb. 24, 1961, as amended at 26 FR 2231, Mar. 16, 1961; 29 FR 1462, Jan. 29, 1964; 30 FR 133, Jan. 7, 1965; 55 FR 13529, Apr. 11, 1990]

Is section 2 part b applicable in my situation, as I posted earlier?

[Ricky]

You can request an extension of a dead-line after it has passed as long as you have good cause. Keep in mind your request must also explain why you waited until the date that you are actually requesting the extension (explain why you did not request the extension prior to the expiration of the dead-line) and show "Good Cause" as to why you could not meet the dead-line.

I do not think your reasons will be considered Good Cause by the VA. An example of Good Cause would be that you requested the required documents from the court house but they kept losing the request or fail to respond - along with this you would have to provide the paper trail in which you actively pursued the issue etc.......

However, I would still attempt to gain the earlier effective date. All they can say is no and if they do then you can appeal that decision. Just get someone to sit down with you and re-word your reasoning making sure you include you include dates of hospitalization etc....

Good Luck

[Berta]

Did they give any reason for picking the August 2009 date?

Like-is that when they received the paperwork?

Did they consider the reasons you gave for filing this late?

Clown Man made some good points-as to "good cause".

Good cause appears in some BVA decision regarding all sorts of types of appeals over deadlines.

I feel you deserve what you should get and have every right to contiue to fight for the proper dependency retro date.

I would not let them think your competency level prevented you from filing in time- as somewhere down the road they could

perhaps use that as a basis for incompetenct status if you attain TDIU.

[Bonzai]

They gave a Start Date of Aug 1 2009, because they received the claim on July 13 2009. There were no reasons given for ignoring my explanation for filing the requested documents late. I find it funny that among the Evidence Used to Decide Your Claim they do not have the Marriage Certificate I sent in Aug 2006 listed, unless that is what is meant by Evidence of Record.

As far as my competency goes... LOL That is a daily thing, sad but true. I am Ultra-Radian and cycle frequently, so I function well above what I consider normal and then 20 minutes later, I'm dragging and don't care about anything.

It's too bad that ignorance of VA procedures is not a 'good cause', but I believe that they want veterans to be ignorant. I have somewhat of a paper trail, and will have to get specific hospitalization times, as I feel that is my best chance (which seems to be slim).

Once again, thank you for the advice!

Louis

[tssnave]

Bonzi,

I'm sc 100% for bp so I know the drill about being functioning one minute and either flying high or drowning in the black the next. The only good thing about bp is if you can hang on long enough your mood will change! (no offense meant if you don't like the black gallows humor).

As for your situation - I'd like to go back to your original post and ask why in the world do they need ORIGINAL divorce papers? Did the VA put that in writing or was it something they told you verbally? I didn't have to send in originals and I suspect the many other divorced vets on the board didn't either so I am confused why they added that requirement to your claim.

I am also confused on their being a deadline to submit marriage/divorce documents. Isn't dependency based on when you were eligible and not when you get the paperwork in?

The fact that you sent in your marriage certificate with your original package should count in your favor and mitigate the deadline issue (assuming you are still married to the same person you were when you filed your claim which is what I understand from your post).

I had to send mine in again after they decided my claim according to my vet rep because you can get married and divorced and married and divorced...... in the years it takes to adjudicate your claim so you have to prove to them again you are still married (talk about redundancy).

I think their requirement you send in originals is probably bunk - we certainly don't send in our original DD-214s!.

I would NOT, I say again, NOT tell the VA that you weren't competent to handle your affairs. That's a great way to get a fudicary assigned to manage your VA payment (unless you and your spouse sincerely don't think as a general rule you are competent to manage your financial affairs - and I doubt you could convince them you can't handle paperwork but can handle your money).

Also, if you lost your job and were hospitalized for your bp why are you rated 50%? Are you currently appealing your rating?

Hope this helps and either way, hang in there and keep us posted on the outcome.

TS Snave

Edited July 26, 2009 by tssnave

[carlie]

Bonzai,

My first question is after you had a rating decision that

granted a SC level of 30 % or higher - when do you have your

proof of submitting Form 21-686c ?

carlie

Edited July 26, 2009 by carlie