I Need Help

[emily]

I read so many Decisions from the BVA and can't find the answer, every one has the same date. For, "Entitlement to service connection for cause of the death of veteran (DIC) and dependents' educational assistance." On mine they went back to 1981 on the educational and 1993 on the DIC." I need to get this in the mail today.

[Berta]

Emily- many here remember your claim-

unfortunately I responded months ago that I felt the VA 's decision you have appealed was correct based on all VA regs and case law.

I imagine any DRO review or further communication you have received from VA has supported that.

Under DIC in the browser at the BVA web site one of the first DIC claims is on page one and it was denied as to earlier effective date due to this reg:

"By statute, an earlier effective date for the award of

entitlement to DIC cannot be allowed. Unless specifically

provided otherwise, the effective date of an award based on a

claim for DIC shall be fixed in accordance with the facts

found, but shall not be earlier than the date of receipt of

application therefore. 38 U.S.C.A. § 5110(a) (West 1991).

The applicable exception is found at 38 U.S.C.A.

§ 5110(d)(1), which provides that the effective date of an

award of DIC for which application is received within one

year from the date of death shall be the first day of the

month in which death occurred. Thus, there is no basis upon

which to assign an effective date for DIC earlier than the

date of the veteran's death, which was the date assigned in

this case."

They mean the formal application -VA form 21-534.

Also I recall you did not state that you claimed the veteran's death was due to service when you applied for Burial expense or something else.forget what-

Also the initial BVA decision , that you did succeed on as to SC death,in the remand also

brought up these two significant points:

formal date of application and that fact that SC death was not claimed for years.

This makes me want to suggest strongly to all vets here-

Their spouses should not hesitate to get the 21-534 form filed as soon as possible.

If not filed within one year after death, the date of death is no longer the EED.

Also they should definitely state and check the form Yes as to

"are you claiming service connected death?"

Regardless of the Death Certificate- a spouse with a disabled vet spouse getting VA comp should consider not only they might well have the potential for the SC disability as causing or contributing to death,

unfortunately, if the vet didnt get the right medical care from VA -it could be a potential for a Section 1151 DIC benefit.

The regulations have not been changed on this Emily- I dont know what advice to give on the appeal-

based on the evidence of record I feel that the VA did make the proper decision on the EED in your case as to the DIC.

The educational regs regarding that EED are different as far as Chap 35 educational benefits go.

Edited May 19, 2006 by Berta