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Berta

Vcaa Errors And Dic Denials

Question

Hupp V Nicholson was a very important decision regarding DIC claims,filed since 2007.

It caused VCAA letters for DIC claims to contain certain specifics as found in this BVA remand:

“In addition, the Board observes that in Hupp v. Nicholson, 21 Vet

App 342 (2007) the United States Court of Appeals for Veterans

Claims (Court) expanded the Veterans Claims Assistance Act of

2000 (VCAA) notice requirements for a DIC claim. In Hupp, the

Court held that, when adjudicating a claim for DIC, VA must

perform a different analysis depending upon whether a Veteran was

service-connected for a disability during his or her lifetime.

The Court concluded that, in general, section 5103(a) notice for

a DIC case must include: (1) a statement of the conditions, if

any, for which a Veteran was service-connected at the time of his

or her death; (2) an explanation of the evidence and information

required to substantiate a DIC claim based on a previously

service-connected condition; and (3) an explanation of the

evidence and information required to substantiate a DIC claim

based on a condition not yet service-connected. In addition, the

Court found in Hupp that the content of the section 5103(a)

notice letter will depend upon the information provided in the

claimant's application. While VA is not required to assess the

weight, sufficiency, credibility, or probative value of any

assertion made in the claimant's application for benefits, the

Court held in Hupp that the section 5103(a) notice letter should

be "tailored" and must respond to the particulars of the

application submitted.

A review of the claims file reveals that, in light of the Hupp

decision, the June 2008 VCAA notification letter sent to the

appellant is insufficient. Thus, the Board finds that remand is

required so that the appellant can be provided with a new VCAA

notice letter that more fully complies with the Court's holding

in Hupp.”

http://www.va.gov/vetapp11/Files1/1103610.txt

The lack of a proper Hupp statement in a VCAA DIC letter ,if prejudicial to the claimant, will cause a denial

in most cases at the VARO level and definitely cause a BVA remand if it is found to be prejudicial.

This is the most important factor anyone helping with a DIC claim needs to assess, once they have established that the surviving spouse is really the legal spouse for VA purposes and the VA has sent them a VCAA letter. If the VCAA letter is wrong and does not comply with Hupp they must take action to get it corrected immediately.

It is alarming or me to still see so many remands on DIC claims in 2011 (4 years after the Hupp Provision)

because VAROs failed to comply with this important regulation.And their POAs on the BVA appeal did Npthing to correct it.

I wish I could post my VCAA letter here as a template of what a DIC claim falling under Hupp or even filed prior to Hupp should contain but I never received a proper VCAA letter for my last claim.

While the BVA did agree the VCAA letter I got was not in complaince with the VCAA, they awarded anyhow because the evidence was there but that was because I know what the DIC regs called for and I overcame the prejudicial error in my VCAA letter.

The VCAA letter under Hupp tells the survivor exactly what they actually need to succeed.

Many DIC cases at BVA have POAs who should have caught the VCAA error right away.My POA gave me no support at all in asking for a compliant VCAA letter.

The failure of anyone to catch this critical Hupp error for a DIC claim will cause a DIC claim to be denied in most cases until it gets to the BVA and then remanded for a proper VCAA statement by the BVA (unless somehow the survivor presented a strong DIC case with enough evidence to award DIC in spite of the VCAA error.

Edited by Berta

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