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

[sharon]

Why did they ask for a divorce decree. (see below) May be reason for appeal.

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

3.205 - Marriage.

(a) Proof of marriage. Marriage is established by one of the following types of evidence: (1) Copy or abstract of the public record of marriage, or a copy of the church record of marriage, containing sufficient data to identify the parties, the date and place of marriage, and the number of prior marriages if shown on the official record.

(2) Official report from service department as to marriage which occurred while the veteran was in service.

(3) The affidavit of the clergyman or magistrate who officiated.

(4) The original certificate of marriage, if the Department of Veterans Affairs is satisfied that it is genuine and free from alteration.

(5) The affidavits or certified statements of two or more eyewitnesses to the ceremony.

(6) In jurisdictions where marriages other than by ceremony are recognized the affidavits or certified statements of one or both of the parties to the marriage, if living, setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, the period of cohabitation, places and dates of residences, and whether children were born as the result of the relationship. This evidence should be supplemented by affidavits or certified statements from two or more persons who know as the result of personal observation the reputed relationship which existed between the parties to the alleged marriage including the periods of cohabitation, places of residences, whether the parties held themselves out as married, and whether they were generally accepted as such in the communities in which they lived.

(7) Any other secondary evidence which reasonably supports a belief by the Adjudicating activity that a valid marriage actually occurred.

( Valid marriage. In the absence of conflicting information, proof of marriage which meets the requirements of paragraph (a) of this section together with the claimant's certified statement concerning the date, place and circumstances of dissolution of any prior marriage may be accepted as establishing a valid marriage, provided that such facts, if they were to be corroborated by record evidence, would warrant acceptance of the marriage as valid. Where necessary to a determination because of conflicting information or protest by a party having an interest therein, proof of termination of a prior marriage will be shown by proof of death, or a certified copy or a certified abstract of final decree of divorce or annulment specifically reciting the effects of the decree.

© Marriages deemed valid. Where a surviving spouse has submitted proof of marriage in accordance with paragraph (a) of this section and also meets the requirements of 3.52, the claimant's signed statement that he or she had no knowledge of an impediment to the marriage to the veteran will be accepted, in the absence of information to the contrary, as proof of that fact.

M21-1MR, Part III, Subpart iii, Chapter 1, Section B

<H4 style="MARGIN: 0in 0in 12pt">5. Acceptable Evidence Under 38 CFR 3.204</H4>

<H5 style="MARGIN: 0in 0in 0pt">Introduction</H5>This topic contains information on acceptable evidence under 38 CFR 3.204, including

· a written statement as proof

· information required in a written statement, and

· when VA may require evidence in support of a written statement.

<H5 style="MARGIN: 0in 0in 0pt">Change Date</H5>September 25, 2008

<H5 style="MARGIN: 0in 0in 0pt">a. Written Statement as Proof</H5>In most cases, VA will accept a written statement from a claimant as proof of

· marriage

· dissolution of a prior marriage

· birth of a child, or

· death of a dependent.

<H5 style="MARGIN: 0in 0in 0pt">b. Information Required in a Written Statement</H5>The written statement must contain the following:

· the date (month and year) of the event

· the place of the event

· the full name of the dependent

· the relationship of the dependent to the claimant

· if the claimant’s dependent child does not reside with the claimant, the name and address of the person who has custody of the child, and

· the SSN of any dependent on whose behalf the claimant is seeking benefits.

Continued on next page

5. Acceptable Evidence Under 38 CFR 3.204, Continued

<H5 style="MARGIN: 0in 0in 0pt">c. When VA May Require Evidence in Support of A Written Statement</H5>VA may require the types of evidence, primary and secondary, indicated in 38 CFR 3.205 through 38 CFR 3.211 to be submitted in support of a written statement when

· the claimant does not reside within a state

· the claimant’s statement

- on its face raises a question of validity, and/or

- conflicts with other evidence or record, and/or

· there is a reasonable indication in the claimant’s statement or otherwise of fraud or misrepresentation of the relationship in question.

[Ricky]

Why did they ask for a divorce decree. (see below) May be reason for appeal

Because the VA Form 21-686c ASKS for such information on the veteran and the veteran's current spouse.

Item 7 that you have bolded simply implies that absense of conflicting information (you did not list any previous marriages for either you or your spouse) the records in item a would be accepted as proof of a current marriage. The same items will also be accepted if you listed previous marriages and the record you are providing from item a also provides a record of the divorce from those marriages.

Outside of that a veteran with previous marriages MUST provide a certified copy of his/her divorce decree.

[sharon]

Why did they ask for a divorce decree. (see below) May be reason for appeal

Because the VA Form 21-686c ASKS for such information on the veteran and the veteran's current spouse.

Item 7 that you have bolded simply implies that absense of conflicting information (you did not list any previous marriages for either you or your spouse) the records in item a would be accepted as proof of a current marriage. The same items will also be accepted if you listed previous marriages and the record you are providing from item a also provides a record of the divorce from those marriages.

Outside of that a veteran with previous marriages MUST provide a certified copy of his/her divorce decree.

That is not true. If your prove the information on previous marriages, and there is no conflicting information of record, the VA is suppose to take your word for it. If the information conflict with what is of record then the VA develops for divorce decrees. The fact that you did not list a marriage on the initial application is not conflicting information. If the you did list marriages adn the information changes on the 686c then you now have conflicting information. Most of the time it is the dates for number of marriages.

[Bonzai]

Wow, Lots of replies thanks! (Even though I am a little confused )

I just checked my c-file. My original Form 21-686c with a copy of my marriage certificate and addendum showing previous marriages/divorces were received by the VA on 10/25/06. They sent back a letter 10/26/06:

What Do We Still Need from You?

We need a copy of the public record ending your marriage to Xxxxxxx. This could be a divorce decree or death certificate.

The information provided concerning your spouse's martial history is inconsistent/incomplete. Our attempts to contact you by phone have been unsuccessful. You did not provide the month and year of divorce for your spouse's marriages to Xxxxxxx and Xxxxxxx. Please provide this information on the enclosed VA Form 21-4138, Statement in Support of Claim. If this information is not known, then you should submit certified copies of the public record of termination (death, divorce or annulmant) for your spouse's prior marriages to Xxxxxxx and Xxxxxxx.

Also in my c-file, there is a letter dated 12/26/06 denying my claim unless I can get them the evidence by October 26, 2007. If that was not done, then any information after that must be considered a new claim and benefits cannot start until after receiving a new claim. I do not recall ever receiving this letter, but I was in and out of the hospitals (VA, private, IHS) during this time.

In the addendum that was attached to my original Form 21-686c, only the years of my spouse's divorces were listed and not the months. I don't know why they wanted a copy of mine, other than they just wanted copies of everything.

I hope this clears things up a bit.

Louis

[sharon]

The development was correct. All you had to do was send in the information on the 4138. It was not manadatory to send in the documents. The information you gave was incomplete.

[Bonzai]

The development was correct. All you had to do was send in the information on the 4138. It was not manadatory to send in the documents. The information you gave was incomplete.

Huh? By "The development was correct", do you mean I have no basis for asking for an earlier effective date?

I realize that the month of her divorces were not included, but they had taken place 20 and 18 years previously and she did not remember the exact months. So sending the information on the 4138 was not an option. If I did not have to send in the certified documents, then why did they request them? In particular, my divorce decree, which I had no idea of how to obtain, and I had no assistance in finding out how to obtain it. In reviewing what has been posted so far, the VA did not show 'good cause' in requesting my divorce decree, as there was no reasoning given for it according to 38 CFR 3.204.

If the VA is going to hold me to rules and regulations, aren't we allowed to do the same thing to them? Or do the rules only work one way? <=== Sarcasm intended.