Dingess/hartman V. Nicholson (2006)

[chiefhouse00]

Greetings

I received a letter from the VA today that reads in part as follows:"The U.S. Court of Appeals Claims recently made a decision in the case of Dingess?Hartman v. Nicolson (2006). This decision requires that VA provide additional information about the evidence VA needs to make a decision on your disability compensation claim."

This letter doesn't list a particular claimed disability...what is the VA asking me to provide. Do they want me to additional medical evidence or what?????

Best Regards

Chiefhouse B)

[vaf]

Chief, usually if they want additional evidence, they'll be clear about asking for it. What's the rest of the letter say, does it ask you to provide additional information?

[Stretch]

Dingess and Hartman v. Nicholson

Court of Appeals for Veteran Claims

March 3, 2006

Issue

What notice and development is VA required to provide in a compensation claim?

What did the Court hold?

Historically, in order to establish service connection for a disability, three things must be decided:

1. Whether the claimant is a veteran;

2. Does the veteran have a present disability; and,

3. Is that disability related to service?

Until now, the Veterans Claims Assistance Act (VCAA) requires that once a veteran has submitted a substantially complete application, VA must notify the claimant of any information, and any medical or lay evidence, not previously provided that is necessary to substantiate the claim. In addition, VA must tell the claimant what evidence it will obtain, what evidence the claimant must provide and what evidence VA will help the claimant obtain if the claimant tells VA where to look.

In Dingess, the Court held that two additional decision points exist, and that VA is required by law to provide notice and assistance to claimants at the beginning of the claim process. Those two additional decisions are:

1. What is the proper evaluation to be assigned; and,

2. What is the correct effective date?

Here, the Court held that VA must tell the claimant how it intends to evaluate a service connected disability and how the correct effective date is to be determined.

What action is VA taking?

· VA has written a letter to claimants which describes the Dingess decision and contains general paragraphs:

o outlining the criteria used for assigning evaluations; and,

o how effective dates are selected.

· These letters will be mailed during the weekends of March 18-19, 2006 and March 25-26, 2006.

· Copies of these letters will be provided to Service Organizations during the first two weeks in April, 2006.

· VA has determined that these letters will be sent to every person who has a current claim for compensation benefits pending. This includes cases in an appeal status. These two groups total more than 500,000 claims. There are over 624,000 additional cases completed in the last 12 months. Since these decisions are not final they, too, are affected by the Dingess decision. Unfortunately, VA cannot identify these cases. Consequently, they will not receive letters from VA.

· VA will develop future claims in accordance with the Dingess decision.

· VA will continue processing claims while it cures these notice and development deficiencies.

What this means to claimants

· In the short run, these letters will further confuse many claimants about what it is they need to do.

o Many claimants will call either VA or Service Organizations for an explanation.

o Service Officers should expect that these calls will be significant in number over the next month or two.

o After that calls should recede but the Dingess notice requirement will continue to be a subject of interest to claimants for the foreseeable future.

·

· While the Dingess decision ensures that claimants receive legally adequate notice of what evidence is necessary at each decision point in the claims process, it is likely that this change will have little impact on most veterans.

What should Service Officers do?

In the near term:

· The entire staff of each VSO office should be ready to respond to inquiries from claimants and be prepared to explain what the letters mean. Copies of the letters to be sent by VA will be provided to DSO's as soon as they become available.

· The DSO may wish to re-record the message on the office answering machine to provide information to those who call after hours and keep it running for the next 4-6 weeks. This may satisfy some veterans and reduce the number of calls you receive. In addition to your regular message, you may want to say:

"If you have questions about a letter sent you by VA which refers to the Dingess/Hartman court decision, please listen carefully.

That letter was required by a recent court decision that clarifies the things VA must tell you about how your claim may be decided. If you have evidence concerning your claim that you have not yet provided VA, please send it to us immediately and we will submit it to VA for you.

If you do not have any further information or evidence for VA at this time you are not required to do anything in response to this letter. Failure to return the "VCAA Notice Response" enclosed with your letter will not delay your case."

In the future, DSO's should ensure that VA satisfies the Dingess notice requirements prior to signing off on a rating.

Claimants who received a decision in the last year are also entitled to this notice. DSO's should be alert to these cases and ask VA to properly notify these claimants.

Finally, in those rare cases where a veteran claims a specific evaluation (e.g., "My PTSD is worse and I believe I should be evaluated 50 percent.") VA is required to give specific notice of the criteria needed to satisfy the evaluation requested. A DSO should alert the proper VA Team Leader of the claim so that proper notice can be provided.