Dea Benefit Cue?

[hawkfire27]

Hi all I have recently posted regarding my DEA benefits being denied based on the fact that the eligibility period of ten years had ended. However we weren't married and therefore I was not an eligible person at that time so I could not have eligibility determined.

Wellllllllllll. The congressman got involved and I received a statement of case which shows they did not review thee vidence I sent in in support of my claim, and that they continue to deny me.

"Evidence:

The veteran C&P record (No mention of any other evidence I put in, though the rep on the phone says my evidence was adjudicated on the 19th October last year)

Decision:

The denial of DEA was correct

Reasons and bases:

The Spouse of a veteran that was found ot have total and service connected disability for VA purposes has 10 years to use DEA benefits. VA cannot extend the 10-year period based on date of veterans marriage.

The Rating Decision in veteran's C&P file reflects the date of rating as July 1996 and the vet was notified on September 1996. A spouse of this veteran could begin utilizing DEA benefits as late as September 1996. Therefore the 10 year eligibility period ran out on September 2006.

The date of marriage has no bearing on the veterans determination for DEA benefits... The date of marriage is use solely to determine the earliest a claimant can receive DEA benefits if eligibility is established. Education benefits can not be paid prior to the date of marriage. Even though the claimant was not married to the veteran when VA determined the veteran 100% SC disability, the claimant is still bound by the 10 year eligibility period for spouses. Denial of DEA benefits was appropriate."

Any thoughts?

Edited April 21, 2010 by hawkfire27

[Philip Rogers]

When did you marry the vet, thereby becoming an eligible person??

pr

[pacmanx1]

How Long Are You Eligible?

Veteran's Disability

If you're a spouse and you're eligible because the veteran has a permanent and total service-connected disability, benefits generally end 10 years from one of the following dates:

effective date of the veteran's permanent and total disability evaluation

date VA notifies the veteran of the permanent and total disability evaluation

beginning date you choose, between the date you become eligible and the date VA notifies the veteran of the permanent and total disability evaluation

I am way confused; Chapter 35 is connected to the veterans' 100% SC P&T award and not when a veteran gets married. If the veteran was awarded in 1996 the spouse would have until 2006, if you were not married to the veteran at the time of the award and then later married the veteran in 2009 then I don't see how you could be entitled to the chapter 35. Very interesting and I would really like to hear other opinions.

Edited April 22, 2010 by pacmanx1

[hawkfire27]

I married my vet in 2009.

I am basing my appeal on the Cypert vs. Peake case, were the Court of Appeal agreed that in order to be eligible for DEA benefits in the first place you have to be an eligible person. The VA is stating I was eligible for benefits in 1996 until 2006, but this is not possible because I didn't become an eligible person until january 2009.

The Cypert vs Peake case mentioned above was found in favor of the vets spouse and she was entitled to DEA benefits, her situation was almost identical to mine.

Anyway, now I have to do the whole Form 9 process, but I have never been through this process before. What type of hearing should I request, video conference or VARO hearing???

Also could the fact that they did not consider (or state) all evidence on the SOC be cause for a CUE?

Edited April 22, 2010 by hawkfire27

[pacmanx1]

OK I get it, you are saying that you became an eligible spouse the day you got married.

unfortunately, your claim may have to go higher than the local VARO. I hope I am wrong but we all know that for some reason claims get awarded at the BVA level and higher that should have been awarded when the veteran or their family members applied for it

As Always Hope the Best and please keep us inform.

[Philip Rogers]

I would request a DRO hearing and present the Cypert v. Peake case at the hearing. I agree, you became an eligible person in 2009 and it should expire 2019.

pr

I married my vet in 2009.

I am basing my appeal on the Cypert vs. Peake case, were the Court of Appeal agreed that in order to be eligible for DEA benefits in the first place you have to be an eligible person. The VA is stating I was eligible for benefits in 1996 until 2006, but this is not possible because I didn't become an eligible person until january 2009.

The Cypert vs Peake case mentioned above was found in favor of the vets spouse and she was entitled to DEA benefits, her situation was almost identical to mine.

Anyway, now I have to do the whole Form 9 process, but I have never been through this process before. What type of hearing should I request, video conference or VARO hearing???

Also could the fact that they did not consider (or state) all evidence on the SOC be cause for a CUE?

[hawkfire27]

Thanks for your input hadit members!

One problem. I would request a DRO hearing but I only have 60 days to submit my appeal to the BVA.

________________________

VA writes (with the SOC in response to NOD)

You must file this appeal within sixty days from the date of the letter or within the remainder, if any of the one year period from the date of the letter notifying you of the action you are appealing. (Both date end on about 60 days) If we do not hear from you within this period, we will close your case.

Further on: PLease incdicate on the supplied VA Form 9 whether or not you would like a hearing and the type of hearing you would like, if any.

Even further on: After we recieve you appeal we will send it on to the BVA in Washington DC for a decision. The BVA will base its decision on an independent review of the entire record, includng the transcript of the hearing, if you have a hearing.

__________________________

OK soI'm trying to figure out how to get a DRO in the 60 day time frame and still have time to file an appeal to the BVA with a BVA hearing, if the DRO doesn't help me.

Any ideas anyone???? I live in the middle of nowhere and the local VSO has no idea about DEA benefits or claims and gave me the number of someone about 4 hours drive away....So I'm kinda stuck. Please help?