Big Case On Retro Additional Comp For Dependents

[deltaj]

Wow, This is an amazing case on retroactive Additional Compensation for Dependents that I found because of a post by Jim Strickland. The case is on the website of the U.S. Court of Appeals for Veterans Claims. Unless this case is successfully appealed by the Secretary, V.A. may owe a lot of veterans additional compensation for dependents retroactively back to the date of a veterans award of 30% or higher. It appears that the U.S. Court of Veterans Appeals determined that V.A. has been intrepreting the phrase establishment of a disability rating in 38 USC 5110 (f) contrary to 38 USC 1115. It also appears that the court determined that 38 CFR 3.401 (b) (3) is not pertinent in this case. This case appears to overturn the requirement that a veteran must submit proof of dependents within one year of an award in order to receive retroactive additional compensation for dependents. It looks like this has application in cases where there is an earlier effective date of an increase in disability. It looks like the government is trying to bury this case by typing whole sections of the case with the words jammed together with no spaces. (There was only one spot in this decision where the phrase additional compensation for dependents was not jammed together without spaces and it was way down deep in the document.) If you want to find this case online at the U.S. Court of Veterans Appeals type in the case number 07-2481 in a search of cases on that website. That's how I found the case online. I would also recommend that anyone reading this case copy it on to their computer because it may disappear online. Could someone please put up a link for this case?

[deltaj]

Well, Delta, believe me you add a lot of skills here at hadit...well appreciated skills, I might add. I am "going after" my dependents eed benefits, altho I had already appealed, now I have precedence to cite.

I am "virtually certain" that I will eventually get dependents retro, in no small thanks to your post!

I do not think this cited case applies JUST to DIC/accrued benefits, but to any Veteran denied dependents benefits. But that is JMHO.

However, if you need help citing a case/link, I can probably help. Here is how I do it, though there are other ways:

1. Go to the web page you wish to cite, in another window (open up your browser a second time).

2. Click in the address page of the desired link you want to post.

3. Press down and hold "CTRL and C" at the same time, after the link is "highlighted" in the address bar.

4. Navigate back to hadit to the post you want to cite. Click the left mouse to get ther curser. Then hit "Ctrl" and "V"

at the same time.

These are the basic instructions for cut and paste...you cut and paste the actual website into your post at hadit.

To reiterate, you First Highlight what you want to cut and paste. Next you "copy it" to an area inside your computer

that you cant see with "Ctrl and C". Then you move to the area of which you want to paste it, clicking, then pasting with "Ctrl V".

In summary, Microsoft says to use cut and paste you First have to tell it what stuff you want to cut and paste by highlighting it. Then you copy it. Then you have to tell the computer WHERE you want it pasted by pointing your cursor, and finally paste it. Hope this helps you..you sure helped me.

Broncovet, Thank you for your kind words. Oftentimes the stuff I've found has been the result of my searchs online trying to find something that will get my husband an Earlier Effective date pn the percentage of his rating and dependents. When I find something good that can help others I often post it to hadit. I had learned to use control c and control v to copy and paste highlighted documents into an open Word new document awhile back, thus allowing me to save copies of cases to my computer. V.A. has granted my husband a 100% rating retro back to March 1987. My husband and I married in July 1989. Frankly you wouldn't believe the junk my husband and I have put up with from V.A. In March 1989 one of his doctors had reviewed his medical records from a V.A. Livermore and stated that his condition was so severe that he could not be voc rehabed. In July 1990 V.A. gave him 50% despite the fact that his doctor did not have access to his C file during a V.A. exam. In 1991 he filed a claim and requested V.A. obtain records from Livermore and Sacramento. BVA left that 1989 letter and the 1991 claim asking V.A. to obtain those records from Livermore out of the record of appeal to the court. What I now understand is those records from Livermore could have given him an earlier effective date under 38 CFR 3.157 (b) if there was an exam showing an increase in disability prior to his claim received by VARO in March 1987 or could have yielded him an earlier effective date if he made an informal claim for increase in writing on any cover sheet to an exam before 3/25/87. I can also see where he got jacked. On his initial claim for Additional Compensation for Dependents he put the wrong date down for his marriage. V.A. simply changed it on the form but because he wasn't rating 30% did nothing. I can also see some really creepy behavior by V.A. V.A. didn't get his Navy records until two days after his first exam. Those records show he was having delusions, hearing voices, and having hallucinations when he was hospitalized at a Naval Hospital the month before he was discharged and he filed a claim for service connection of a nervous disorder. V.A. gave him 10% for his nervous condition in an April 1966 decision. In March 1967 V.A. made a decision in the wrong veteran's name and continued his prior 10% rating. The court of veteran's appeal and BVA have turned a deafear to his written briefs stating that the March 1967 decision was not final because it was in the wrong veteran's name. Sometime in 1970 he may have filed a claim for increase. The claim isn't in the file but there is a 1971 exam and a 1971 decision which denied him an increase. That 1971 exam showed he was having symptoms that seemed to suggest he was having visual hallucinations. V.A. simply continued the prior rating. In 1974V.A. granted him an increase to 30% based on a social survey done in his home. No overt signs of psychosis were observed by the social worker. The report says he told the social worker he couldn't keep a job but she essentially stated that he didn't understand that his unemployment was due to his lack of training and lack of education. There is not indication that this social worker had any access to his V.A. file during this 1974 social survey. Twelve years later he was still struggling in poverty when he somehow got enough work credits in March 1986 to get Social Security. His claim for increase was received by VARO one year and one day after Social Security determined that he was permanently and totally disabled so he was deprived of benefits under 38 CFR 3.400 (o) (2).There was not one single year after 1971 where he had wages above the poverty threshold. In 1966 his records show that he was evasive about whether he was having hallucinations or had them in the past. I have a suspicion that V.A.'s first request for service records did not have his correct service number on it. The other night I was looking through a box of records that just arrived from V.A. and there was a records request V.A. made many years ago which had his Navy service number with the initials NM before that service number. Another request I remember seeing for that record awhile back did not have those initials before that service number. I kinda think that V.A. made more than one request to get his Navy records and this is why they were delayed but right now I am immersed in classes at a college two hours away so I may not be able to look into this for awhile. Frankly, I am just tired of the battle. The recent search of records did yield one new V.A. term I had never heard before: V.A. treatment folder. I'm thinking I might be able to use that phrase to request records from Livermore and San Francisco but I'm not sure how long V.A. keeps those records. They may have already been destroyed. If I had one piece of advice for people reading this forum it would be to not blindly trust the V.A. to get records in support of a claim. My husband told V.A. in 1991 to get those medical records from V.A. Livermore but V.A. didn't get them. He didn't know that until many years later and now 22 years after his doctor wrote a letter about those records those records may not exist anymore. I wish I had him complete a records request years ago but I was newly married and bought into a belief that people who worked for the V.A. would do what he asked them to do. I no longer believe that the V.A. does right and fair by veterans.

Edited March 5, 2011 by deltaj