Prejudicial Error /remandable Error

[Berta]

I have been reading remands of widow's claims at the BVA-

Some widows received a letter like I did for more evidence but the letter did not comply with the VCAA nor was it a real VCAA letter.

I think a real VCAA letter has check boxes and they send pamphlets-

The BVA stated this to be a remandable error-and in some cases, a prejudicial error-and remanded on that basis.

One BVA case states clearly that a general letter asking for more evidence yet which is not specific to the claim is "unacceptable."

The VA could have told me to get an IMO-I did anyhow-

but I realise now that they were not in compliance with the VCAA at all.

This might help someone:

from: http://www.va.gov/vetapp06/files1/0600098.txt

a widow's remand but nevertheless the VCAA is for all claimants-

" The claims file does not contain notice to the appellant clearly specifying the evidence needed to substantiate her claim for service connection of the veteran's death or notice to her clearly delineating

whose specific responsibility -her's or VA's--it is for obtaining this supporting evidence. "QuartuccioV. Principi

Also this decision states:

"VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim."

Pelegrini V Principi

It is certainly occuring to me that without proper receipt of a VCAA Notification, the veteran might be screwed right from the git go-

We here all have a very good handle on what the VA needs to succeed in a claim.

Whether we get VCAA letters or not- if the evidence can be obtained, the claim can succeed.

I am really wondering how many vets out there -without this notice specific to their claim-

have a clue as to what they need to provide.

I helped my local vet rep with a vet's claim and suggested an IMO right away because the vet has a Medicare doctor and maybe there would be no IMO fee-

the vet is terminally ill.

The vet rep said he never even thought of that. ???

Say what?

Now I realise that this vet probably never even got a VCAA letter.

These letters-if they prepared well can give a vet numerous ideas as to how to support their claim.

DTA and VCAA only applies to claims for service connection and not to CUEs.

It seems to me that the lack of sufficient VCAA Notice can be a good ploy to use when preparing

any response to any type of denial-if you did not get a proper VCAA letter.

The notice requirtes the VA to be specific to one's claim and therefore they actually have to read the claim to prepare it.

However, a claim with no potential of substantiation will not benefit whether they got a VCAA or not-

what I mean is- say the VA in a DIC decision determines that the veteran (whose widow claimed death due to Agent Orange from Vietnam and that he had two PH's from combat ) never served in Vietnam , no PH's ,and the death certificate revealed a condition causing death totally unrelated to AO presumptive conditions- This is an actual claim I got from a widow-

there is no reason to expect -if no VCAA letter went out to her- that prejudicial error occured because the claim was totally unsubstantiated by information on the veteran's DD 214 itself.

[Guest jangrin]

Berta,

My husband was sent two letters from the VA. One was in april and then one in june. Now these letters seem to tell him what they need from us to support the claim and what they have already recieved as far as records go, etc. However, the letters don't have any form mumbers or titles or anything like that. Until you get to the signature page.

This page is titled : VCAA NOTICE RESPONSE

First paragraph states that they provided notice of evidense and what the VA still needs form us. In the second paragraph states that his signature on this form will not affect hin entitlement to benefits nor affect VA's helping us to obtain evidense to support our claim. And it will not effect dateswhen benefits are granted. They want to know if we need more time.

Then the paper says: RESPONSE

and you are given tgwo choices and a box to check.

1. I have no other information or evidense to give VA to substantiate m claim. Please decide my claim as soon as possible.

2. I have more information or evidense to give to VA to substantiate my claim. VA will wait at least 60 days before deciding my claim to give me a chance to submit this information or evidense.

then it asks for a signature and date.

Berta,

There are alot of problems with this form. My husband has not signed either one of these, yet. We are still developing his case. However, when we have everything in a coulple of weeks then we will sign the form for them to proceed on adjudication of the claim. If we say to wait then we are really giving them the OK to take their time. Not good from our standpoint. So he just has not returned anything except adding medical records to the C-file and sending copies to the SO. I'll try to have this scanned so you can see it.

I do think this is considered a VCAA notice. However, it is only when you get to the signature page that you have anything identifying this correspondence. If I hadn't read you post today I still wouldn't have realized that this was a legal letter that they were required to send us. (It reads like a friendly reminder)

Jangrin :(

Edited July 17, 2006 by jangrin