New member needs DIC help

[Berta]

"I was awarded DIC May, 2018 after years with VA trying to get SC. My husband became ill in 2002 and 8 years later he died. I submitted electronic emails after terminal illness as I struggled to care for him. I needed help finding facilities to meet his needs, knowing there was a VA facility close but that didn't happen until 2 months before he passed. Needless to say if you do the math for 7 years of private pay all savings gone. I won DIC with new and material evidence at hearing 2017. I believe my effective date is not correct. Is a CUE the right thing for me and if so how??

Thank you,

Ann"

[Berta]

We would need to see the award decision , the part that includes their rationale for the EED

(Earliest Effective Date ) and  the Evidence list-

Cover the C file #, your name, address, prior to scanning and attaching it here-

If this was a VA award-and you tell us the Docket number, it might be posted by now at the BVA web site.

I dont see a CUE here-at first glance but- there is more to this ,that we need to know.

[Berta]

Is this your award from the BVA?

https://www.va.gov/vetapp18/files4/1820956.txt

[Berta]

If that is your BVA decision and you return to hadit ,I have read through it carefully many times and tried to see if Nehmer was applicable to this EED-but it wasn't.I found no CUE at all.

 

In part the decision states:

 

“The death certificate listed the Veteran's cause of death as "liver failure; diffuse abdominal carcinomatosis and metastases unknown primary." The Veteran was not service-connected for any disability at the time of his death. The August 2000 letter informed the appellant that the cause of death listed on the Veteran's death certificate did not support a claim for service connection for the Veteran's death because it did not relate to complaints present in the Veteran's service treatment records. Although the appellant had stated on her claim that the Veteran's death was caused by exposure to Agent Orange, the cause of death on the death certificate was not a presumptive disability for those purposes. 38 C.F.R. § 3.309. The August 2000 letter specifically requested that the appellant submit a copy of the autopsy report. The RO received no additional evidence from the appellant and issued a rating decision in November 2000 denying service connection for the cause of death. The duty to assist is a two-way street. If the appellant wishes help, she cannot passively wait for it in those circumstances where she may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).” And: “The appellant's next submission was a written statement requesting to reopen the previously denied claim for DIC was received in January 2010 at the RO. Along with the new claim in January 2010, the appellant also submitted the autopsy report dated May 2000, the month of the Veteran's death. The cause of death listed on the autopsy report is "widely metastatic small cell undifferentiated carcinoma of the right lung." Based on the autopsy report, in October 2010, the RO granted DIC for service connection for death as a result of the Veteran's presumed exposure to Agent Orange in the Republic of Vietnam and subsequent development of lung cancer, a condition listed in 38 C.F.R. § 3.309. The effective date was January 27, 2010, the date the appellant submitted the request to reopen the DIC claim. In the Board hearing in August 2016, the appellant testified that she had not submitted the autopsy report in 2000 because either it was not produced at that time, she was not asked for it, or she did not have it. The evidence of record shows that the RO contacted the appellant directly via letter in August 2000 and requested a copy of the autopsy report. The death certificate dated May 15, 2000 indicates that an autopsy had already been completed and the findings were available prior to completion of the cause of death on the certificate. The autopsy report states that the appellant authorized the autopsy, which was completed on May 13, 2000. The Board finds that an effective date earlier than January 27, 2010 for the appellant's award of entitlement to DIC is not warranted. The November 2000 rating decision was final. Thus the appropriate effective date for the entitlement to DIC for the appellant is the date of receipt of the new claim in January 2010. 38 C.F.R. § 3.400(c)(2) (2017).”

(from above BVA case) If the VA had the autopsy, as soon as it was prepared, the outcome of the original claim would have been a DIC award with the EED back to the veteran's death.

I hope it isnt your case, but amk posting this here because it might help someone else.

CUE rests on legal error (s) that were detrimental to the claimant.

If the medical evidence has not been established by time of a decision, and in VA's possession,by time of the decision- there is no basis for CUE in that decision...

Autopsies are often the definitive word on what actually caused a veteran's death.

As soon as I got a copy of my husband's autopsy I sent it to VA to support my claim.

They ( my RO ) ignored 12 separate submissions of it- as I mentioned in my H VAC subcommittee testimony during Shreddergate but I was also dealing with General Counsel (VA)at the same time ,in DC ,and knew it had been deliberately withheld from them too. I sent it or faxed it to them.

 

I saw nothing in the BVA case above to suggest the VA received the autopsy from you prior to your re-opened claim.....if that is your claim.

 

 

 

 

[broncovet]

If your decision is the one posted, then you can dispute the BVA decision by filing a "notice of Appeal" with the CAVC no later than August 30, 2018, or 120 days from the decision.  I suggest you probably do just that. 

Filing a NOA is rather simple, and then you can obtain an attorney to represent you later.  

This many years of DIC is probably worth your time.  

In my humble opinion, the Board used the wrong "standard of review" to reopen due to n and m evidence, 38 CFR 3.156 b.   This is a "low threshold" (to reopen), and the Board decision did not use this "low threshold".  

Your "new evidence" submitted obviously was enough to substantiate the claim, but they seemed to use a higher standard than necessary.  

Bottom line:  File a notice of Appeal, pronto, or get an attorney to do it for you.  

Appeals to the CAVC are often paid by eaja fees, and its highly likely you will pay zero for an attorney, but you must act, by hiring an attorney (or file the NOA yourself), within the next couple weeks or forever lose your right to future benefits.  

http://www.uscourts.cavc.gov/documents/NOA_Consent_Combined-Form.pdf

You "may" have time to find an attorney to represent you if you act very, very soon:

https://www.vetadvocates.org/cpages/sustaining-members-directory

An attorney may use other reasons to appeal, such as an inadequate reasons and bases, or many other errors which often occur in BVA decsions.  

Edited August 10, 2018 by broncovet

[broncovet]

In order to obtain an attorney to represent you, scan in your BVA decision, and send it to several attorneys of your choice on the NOVA advocate list, above.  Ask them if they see errors in the decision, you can suggest I feel they used the wrong standard of review in reopening due the 3.156 b, if you like.  

Here is a precedent case explain the "low standard of review" to reopen:

https://www.uscourts.cavc.gov/documents/Shade_08-3548_published_opinion_11-2-2010.pdf

[Berta]

The BVA decision date was 4/10/2018 but the dated BVA envelope is when the `120 days starts from.

I agree she should contact an attorney right away.

 

"Your "new evidence" submitted obviously was enough to substantiate the claim, but they seemed to use a higher standard than necessary."

I disagree Broncovet. The death certificate did not warrant DIC.It was too vague.

When the RO received the autopsy, 9-10 years had passed since the veteran had died. It was new and material evidence.

Edited August 10, 2018 by Berta