Wow - Va Calls A Cue During My Administrative Review

[carlie]

Happy Birthday to me : - )

An administrative review was done on my BVA decision from Oct 2011.

DECISION

The effective date of assigned for grant of Special Monthly Compensation

is a clear and unmistakable error. The effective date is changed from

October 29,2008 to March 23,2004.

EVIDENCE

Rating Decision, and all evidence contained therein, dated October 26, 2011.

The deposit has already been made and it's a really great birthday present.

I'm glad THEY caught THEIR error.

[Berta]

Carlie, there is a lot to be said for being a tenacious bitch~!!!!! Ha Ha .....

and this is a serious statement:

"Without my tenacity, I would have been dead several years ago."

That could be a chilling fact for many of us here.

I learned to read my own medical records ,ask questions, and look up anything in them I dont understand.

It is hard for disabled vets to do that, but they could save their own lives if anyone ( VA or non VA medical care) gives them improper diagnosis or treatment.

"I missed something along the year's here because I did not realize they had F'd with your

daughter too."

It regarded her only dealing so far with the VA as a veteran. She applied for the Certificate of Eligibility for her DEA CHapter 35 benefits a bout 2 months before she turned 26.

Age 26 is usually a cut off date for DEA applications.

However, right on the DEA app it has an area for info if the Chapter 35 beneficiary is also a veteran.

She filled it out and attached a copy of her DD 214 , 7 years USAF.

Also she sent them a copy of the VA award letter that awarded both her and me the DEA benefits under 100% SC P & T, a posthumous award for my husband,that I had received in 1996.

The regs (right on the application) state that VA will extend an eligibility date for the length of a veteran who is also DEA eligible,by the length of their service.

VA EDU (an oxymoron sometimes) sent her the Cert and said she was eligible until she turned 26..giving her only one month of DEA!

She called me up cursing so much I thought she had re upped but into the Marine Corps!! Ha Ha.

She couldnt believe how stupid their decision was,

but mommy fixed it.

I wrote an NOD for her (I should have asked them to CUE themselves ..but.she thinks I did in the NOD)

telling them what their regs state, enclosing the regs, and asking for an immediate proper DEA certificate of Eligibility.

I mailed it to her to copy ,sign and send to them with another copy of her DD 214 and within three weeks she called me up and said they fixed it.....

Seven years eligible for DEA ,as she had turned 26 that same month.

My daughter made a good point to me Carlie....she said the letter from VA ( the first one she ever got) seemed so official, that at first she thought the decision, for some reason, was correct.

When she herself read over the DEA regs however, that is when she really got angry and called me up..

She said she sure didn't expect to get something from the federal gov that could be so screwed up

that it appeared the VA couldn't even read and apply their own regulations to the original decision she got.

I said....Welcome to my world Frances! This is SOP for the VA.

[carlie]

Berta,

OK, now I remember. Thanks for reminding me what it was.

[carlie]

Congratulations, They still haven't addressed/fixed your dependent issue yet? Keep up the fight!!!

71,

ebennies shows my CUE for dependent allowance was completed

and closed on 10/15 and that a letter is on it's way to me.

I checked my payment history and the last entry shows the admin review cue

retro deposit pmt date of 10/10/13.

I just checked my bank account and a us treasury deposit was made today 10/18/13.

This HAS to be (IMO) from the CUE on dependency allowance, closed on 10/15.

It's not financially very much of a big win - BUT IT IS A WIN and a correction of a

VA error, I believe it will be back to day following separation for additional dependent allowance.

Brief history:

1978 - 21-526 - Original claim for va disability benefits submitted, within one year of separation.

late 1978 - Claim denied

Jan 1979 - Disagreement submitted with additional medical evidence.

(aprox) Mar 1979 - 2nd denial - copy & paste of original denial.

(aprox) May 1979 - submitted admission to VAMC medical evidence.

(aprox) June 1979 - VA letter, claim remains denied, although injury's happened on active duty

not compensable at 10 percent or higher. SC - denied.

(aprox) July 1979 - Submitted formal appeal

(aprox) Jan 1980 - Claim remains denied

(aprox) Feb 1980 - Submitted request for Panel Review at VARO.

(aprox) Oct 1981 - Attended Panel Review - 5 members on Panel

one was a doctor, one was a VA decision maker that had adjudicated a prior denial.

(aprox) Feb 1982 - Panel Review Decision - SC granted at 40 percent, effective date,

day following separation.

(aprox) March 1982 - Complete & signed 21-686c submitted to VARO, along with

copies of all documents requested within this form.

On this form I specifically only claimed MY daughter and attached a letter to VARO

instructing them to remove my husband as a dependent from my additional GI Bill

dependent allowance as we were in the process of a divorce.

1) NOTE OF IMPORTANCE -

During active duty I was in receipt of dependent allowance

for my husband and MY daughter.

2) NOTE OF IMPORTANCE -

During all of the timeline above I was attending college

under the GI Bill and in receipt of payment for this TO INCLUDE additional dependent

allowance for my husband and MY daughter.

3) NOTE OF IMPORTANCE -

My husband WAS NOT MY DAUGHTER's father.

My husband was NOT THE VETERAN.

My Daughter was illegitimate and was birthed prior to my marriage.

My daughter's Birth Certificate listed me as the birth mother and no father recorded.

(aprox) June 1982 - Divorce Consent from court submitted to VARO.

(aprox) August 1982 - Letter from VARO stating husband as been removed from

GI Bill dependent allowance.

(aprox) August 1982 - I dis-enrolled from college due to mitigating medical conditions.

I notified VARO of this. VARO re-couped from my (now SC'd at 40 %) monthly VA check

for the last semester payments of GI Bill.

(aprox) Sept 1982 - Decision from VARO - Additional Dependency allowance for

daughter is denied. Reason - We need Birth Certificate showing names of BOTH parents.

(aprox) Oct 1982 - I sent VA letter in reply of disagreement and stating MY daughter

was born illegitimate and there is NO father of record, as such NO Birth Certificate to be had

showing names of BOTH parents.

(aprox) Mid - 1983 - VARO denial of additional dependent allowance for MY daughter.

I thought to myself - to hell with them, I am too sick and tired to continue this BS.

Got a job - went on with my life.

(aprox) 1984 - VA scheduled me for a re-exam, I was reduced down to 20 %.

NOTE OF IMPORTANCE - Veteran must be 30 % SC'd for additional dependent allowance.

(aprox) 1985 - It was still bugging me that VA never granted MY daughter's dependent allowance

while I met the criteria.

I kept wondering why the heck they needed a Birth Certificate showing the names of BOTH parents.

After all, I was the veteran and I was the child's birth mother.

DOD - never gave me any problem on this.

GI Bill - educational allowance for additional dependent never gave me any problem on this.

I started digging thru my VA paperwork and found a internal VA form:

***** VA Form 20-22a - Control Document And Award Letter. This VA Form states that I am a MALE.

Every couple of years for decades I kept this issue going and fighting with VA and continued being

denied.

Finally one day it kicked in and I finally put 2 + 2 together.

I realized WHY they continued to deny this issue and continued INSISTING on a Birth Certificate

showing the names of BOTH parents.

3.210 Child's relationship.

(a) Legitimate child. Where it is necessary to determine the legitimacy of a child, evidence will be required to establish the legality of the marriage of the mother of the child to the veteran or to show that the child is otherwise legitimate by State laws together with evidence of birth as outlined in § 3.209. Where the legitimacy of a child is not a factor, evidence to establish legitimacy will not be required: Provided, That, evidence is on file which meets the requirements of paragraph (b) of this section sufficient to warrant recognition of the relationship of the child without regard to legitimacy.

(b) Illegitimate child. As to the mother of an illegitimate child, proof of birth is all that is required.

As to the father, the sufficiency of evidence will be determined in accordance with the facts in the individual case. Proof of such relationship will consist of:

(1) An acknowledgment in writing signed by him; or

(2) Evidence that he has been identified as the child's father by a judicial decree ordering him to contribute to the child's support or for other purposes; or

(3) Any other secondary evidence which reasonably supports a finding of relationship, as determined by an official authorized to approve such findings, such as:

(i) A copy of the public record of birth or church record of baptism, showing that the veteran was the informant and was named as parent of the child; or

(ii) Statements of persons who know that the veteran accepted the child as his; or

(iii) Information obtained from service department or public records, such as school or welfare agencies, which shows that with his knowledge the veteran was named as the father of the child.

I looked back over my Rating Decision that granted SC - it had me marked as a MALE.

That damned internal VA Form 20-22a - had me marked as a MALE.

WA - LA ! - I am the veteran - I am the biological mother - CUE !

Below is a paragraph from the CUE I submitted:

"An error is clearly shown on this form that documents the sex of the veteran as a male.

This clear and obvious error of documenting the veteran as a male versus the evidence of record,

that the veteran is a female, biological mother of the illegitimate child, placed the veteran

in an incorrect status in relation to evidence of relationship and dependency."

Like I posted - it's not a lot of money to be retro'd - but I think I have finally won this issue.

I will post when I receive the actual decision in the mail.

To all - thanks for reading all this long post - I believe it clearly shows that when you feel

your claim issue has merit - NEVER - NEVER - NEVER, give up !

EDITING TO ADD -

Just got my VARO letter.

Here's a link if your interested:

[Berta]

Carlie. good for YOU! I hope they granted the CUE!

This just goes to show that we have to read everything very carefully from the VA.And if something seems wrong in a decision it sure probably IS wrong.

You are RIGHT Carlie...Never give up!!!!!!!!!!!

It is really a disgrace that many of us have to become lay 'lawyers' and 'doctors' to get this kind of crap rectified.

Yet the VA raters are well paid and trained not to make errors ,but they do, and they hope we will not discover their errors (that almost always are at the expense of veterans)

Edited October 18, 2013 by Berta

[carlie]

VARO letter link:

[jcolwell]

That is fabulous. JC