Dea Benefits Denied.

[hawkfire27]

Hi I was denied chapter 35 benefits as a spouse of a 100% P&T vet.

Sooooo I appealed with a NOD about 4 months ago, I have been ringing once a month to check the status. The last time I called teh Muskogee Office I was told it will take about 3 years to review my nod. It is a one page letter with the CYPERT vs Secretary of VA, BVA case. In this case the situation of Mrs. Cypert is identical to mine. We both married the vet after the 10year period had passed from the award letter. She won based on the fact that She could not have been eligible in this period because she was not an eligible person (spouse) during the initial ten year period. The same is the case with me.

My quesiton is.....Is there anyway to speed this up, I was basically told that post 9/11 gi bill took precedence over any other claims by the VA rep.

Should I contact a congressman?? Was also thinking of contacting the Mrs. Cypert's DAV lawyer and letting him no that even though the BVA has ruled in favor of my situation they are still continuing to deny people. Is it worth pissing the VA by doing this????

I am going to school full time with most of my class on-line so I can stay home and look after my husband. I won't be able to continue to go to school unless something move on this in the first part of the New year. Really need some help!

[Berta]

Sorry-I am wrong- the NOD goes to the Educational Department you deal with.

As long as that is where the denial came from-

A RO can deny Chapter 35 DEA as well as the VA Educational department- forget who denied in your case-

I meant a vet rep from the DAV or AL -any vet org who is capable of helping you with this claim.

It would not hurt to write the VA EDU a letter ( or put this on a 21-4138 form available at the VA web site)-telling them you believe they should call a Clear and Unmistakable Error under auspices of 38 USC 5109A, on their denial of this benefit in light of the Cypert V Peake CAVC decision and then refer to the decision-and attach it again and highlight with magic marker the parts that support your claim.

This could possibly move the claim faster but nothing is going fast these days.

I had responses within a month when I did this recently- told the VA to CUE its decision and told them why-

(They buggered up my BVA award )

They did fix the award letter fast but it was still wrong and I sent it all down to VACO to correct.

My point is when they are asked to CUE themselves (I got a second DRO review in 2005 as well with this type of request)

they have to do something.

Asking VA to CUE itself must be supported by some VA case law or legalize that applies to the claim and the request-as in your case here.

I have done this in the past regarding other claims I had and it always produced a response from them very fast -or in 2 separate issues-the check was in the mail fast.

It is one more way to try to get this resolved.

[hawkfire27]

Well just an update!

After applying for DEA chapter 35 Benefits last July (2009), and being denied and then submitting a NOD, I have been ringing once every month, asking for updates.

(when I can get through on the 800 number).

Well after my last call I have gone to my congress man Harry Teague for help.

When I rang the VA the rep told me to stop calling the VA, I was just making a nuisance of myself, and that I needed to be patient as my claim would take at least 4 years because I was not a priority and didn't I no Vietnam was years ago and their is a new war now and that I basically should stop bothering them and let the new vets wives get there benefits because they were more important.

Now I don't begrudge the wives of New Veterans their benefits but I do begrudge the VA playing favorites and telling the wife of a 100% disabled Vietnam Veteran to give up on my DEA chapter 35 benefits, simply because the Vietnam war is not the most recent war! EXCUSE ME....

Anyway now the Congressman has it hopefully something will move on it. :D

Edited January 22, 2010 by hawkfire27

[broncovet]

Hawk

I agree with you about the "new" Vets not deserving a higher priority than Vietnam Vets. This is just a method the VA uses to divide Veterans, and pit Veteran against Veteran, so the Va can easily beat us. It is downright dirty pool.

I also agree with Berta..to expidite the claim, try doing what she suggested.

IMHO VA stuff moves very, very very slowly..on purpose. The VA gets an interest free loan from Veterans. There is plenty of incentive for the VA to delay the claim, and absolutely no incentive for them to hurry it up.

[Pete53]

The only priority the VA should have is getting the oldest claims worked and move on. No Veteran should wait behind other Vets except for the emergencies of Vets who are elderly or very sick. No Vet should die waiting for their claim.

[Berta]

You certainly have a strong leg to stand on here- Cypert in part reads -as taken from the link here-:

"Darlene’s argument on appeal was that the statute in question, 38 U.S.C. §3512(:D(1)(A), calls for the 10-year eligibility period to begin from the date that she is deemed to be an “eligible person” as defined by 38 U.S.C. §3501(a)(1)(D)(i). Darlene Cypert then points to the language in §3501(a)(1)(D)(i) which states that an eligible person is the “spouse of any person who has a total disability permanent in nature resulting from a service-connected disability sustained during a period of qualifying service.” And because Mr. Cypert was permanently and totally disabled on the date that they were married, Darlene Cypert argues that the 10-year period began on the date that they were married.

In response, the Secretary argued that §3501(a)(1)(D)(i) allowed him to determine the beginning date of the 10-year DEA eligibility period and that he is not limited to choosing the date that Darlene became “eligible” under §3501(a)(1)(D)(i).

The Court of Appeals for Veterans Claims began its opinion by examining the statutory language. The Court determined that Darlene Cypert’s interpretation of the relationship between the two statutes was correct. The court concluded that §3512(:)(1)(A) governed DEA benefits and §3501(a)(1)(D)(i) governed eligibility, and based on the eligibility standards, Darlene qualified for DEA benefits.

In reaching this conclusion the court disagreed with the Secretary’s interpretation of § 3501(a)(1)(D)(i). The court found that the beginning date for eligibility for DEA benefits, as determined by the Secretary, was when the person became an eligible person within the meaning of §3501(a)(1)(D)(i).

Finally, the Court rejected the Secretary’s second argument, that DEA benefits were intended to assist spouses only during the initial period of adjustment and not when they remarry fourteen years after they are permanently disabled. The Court concluded that there was no evidence that Congress had that intention when creating DEA benefits.

As a result, the Court of Appeals for Veterans Claims reversed the Board’s decision and found that Darlene Cypert was eligible to receive DEA benefits."

VA DEA and all of their Educational Dept has been overwhelmed by the GI Bill vets.But they appear to have reduced their backlog in many ways.

I am surprised how long this is taken for you to resolve as my daughter's original DEA error was changed in 3 weeks with a NOD and the regs they forgot to apply.Then again that was years ago. VA EDU has been overhwlemed by GI Bill vets but I understand their backlog is pealing down fast-

Did the VA make any reference at all to the Cypert case-yet as evidence you sent them for this matter?

As I understand the regs (from my past DEA experience and also my daughters)- we had to file NOD with the RO.Once the DEA was established we could deal with VA Edu directly-

I hope you can get a vet rep who might suggest asking them to CUE themselves. That could make things go faster-it did for me-

my AO death award -which changed my DEA date- contained errors in VA case law so I asked them to CUE it-they did right away and changed the award but the second one was worse than the first and so I went over the ROs heads.I got update yesterday-2 signatures done,one more needed and hopefully all 6-7 issues to include DEA matter will be resolved soon.

Based on what you have posted along with the Cypert decision- I feel getting them to CUE themselves would be much faster than a NOD.

I dont know if Cypert was a precedent setting case- it doesn't matter if it wasnt- as the CAVC interpreted VA case law (38USC

3501) in a way that in my opinion should apply to every DEA claimant.

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[hawkfire27]

You certainly have a strong leg to stand on here- Cypert in part reads -as taken from the link here-:

"Darlene's argument on appeal was that the statute in question, 38 U.S.C. §3512( :D (1)(A), calls for the 10-year eligibility period to begin from the date that she is deemed to be an "eligible person" as defined by 38 U.S.C. §3501(a)(1)(D)(i). Darlene Cypert then points to the language in §3501(a)(1)(D)(i) which states that an eligible person is the "spouse of any person who has a total disability permanent in nature resulting from a service-connected disability sustained during a period of qualifying service." And because Mr. Cypert was permanently and totally disabled on the date that they were married, Darlene Cypert argues that the 10-year period began on the date that they were married.

In response, the Secretary argued that §3501(a)(1)(D)(i) allowed him to determine the beginning date of the 10-year DEA eligibility period and that he is not limited to choosing the date that Darlene became "eligible" under §3501(a)(1)(D)(i).

The Court of Appeals for Veterans Claims began its opinion by examining the statutory language. The Court determined that Darlene Cypert's interpretation of the relationship between the two statutes was correct. The court concluded that §3512( (1)(A) governed DEA benefits and §3501(a)(1)(D)(i) governed eligibility, and based on the eligibility standards, Darlene qualified for DEA benefits.

In reaching this conclusion the court disagreed with the Secretary's interpretation of § 3501(a)(1)(D)(i). The court found that the beginning date for eligibility for DEA benefits, as determined by the Secretary, was when the person became an eligible person within the meaning of §3501(a)(1)(D)(i).

Finally, the Court rejected the Secretary's second argument, that DEA benefits were intended to assist spouses only during the initial period of adjustment and not when they remarry fourteen years after they are permanently disabled. The Court concluded that there was no evidence that Congress had that intention when creating DEA benefits.

As a result, the Court of Appeals for Veterans Claims reversed the Board's decision and found that Darlene Cypert was eligible to receive DEA benefits."

VA DEA and all of their Educational Dept has been overwhelmed by the GI Bill vets.But they appear to have reduced their backlog in many ways.

I am surprised how long this is taken for you to resolve as my daughter's original DEA error was changed in 3 weeks with a NOD and the regs they forgot to apply.Then again that was years ago. VA EDU has been overhwlemed by GI Bill vets but I understand their backlog is pealing down fast-

Did the VA make any reference at all to the Cypert case-yet as evidence you sent them for this matter?

As I understand the regs (from my past DEA experience and also my daughters)- we had to file NOD with the RO.Once the DEA was established we could deal with VA Edu directly-

I hope you can get a vet rep who might suggest asking them to CUE themselves. That could make things go faster-it did for me-

my AO death award -which changed my DEA date- contained errors in VA case law so I asked them to CUE it-they did right away and changed the award but the second one was worse than the first and so I went over the ROs heads.I got update yesterday-2 signatures done,one more needed and hopefully all 6-7 issues to include DEA matter will be resolved soon.

Based on what you have posted along with the Cypert decision- I feel getting them to CUE themselves would be much faster than a NOD.

I dont know if Cypert was a precedent setting case- it doesn't matter if it wasnt- as the CAVC interpreted VA case law (38USC

3501) in a way that in my opinion should apply to every DEA claimant.

I did talk to a VSO however they said that I could not CUE because I had filed a NOD and that has not be ruled on yet. Is this right???? I thought that a denial was a denial and it could be cued? But apparently the NOD is acting like I've reopened a case and it is like a new claim that has not be rated? I don't know or understand the differences really between a NOD and a CUE, because both of them are asking for the VA to review their decision because of a mistake. Could you please explain the difference to me?

Anyway surprise surprise I haven't heard anything back from the Congressman's office (they said they would call back two days ago to discuss the case further after the review the info I handed to them). So it is wait wait wait no matter which way I turn.

One thing that frustrates me is how everyone seems to discourage mem from trying to claim my benefits. LIke I am just a nuisance or something. grrrrrrrrrr makes me mad!