Ask Your VA Claims Question | Current Forum Posts | Search | Rules | View All Forums
VA Disability Articles | Chats and Other Events | Donate | Blogs | New Users
- 0
Prejudicial Error /remandable Error
Rate this question
Ask Your VA Claims Question | Current Forum Posts | Search | Rules | View All Forums
VA Disability Articles | Chats and Other Events | Donate | Blogs | New Users
Rate this question
Question
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.
Link to comment
Share on other sites
Top Posters For This Question
1
Popular Days
Jul 16
1
Jul 17
1
Top Posters For This Question
Berta 1 post
Popular Days
Jul 16 2006
1 post
Jul 17 2006
1 post
1 answer to this question
Recommended Posts