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"

[broncovet]

Berta,

    The Board seemed to think the "new evidence" was sufficient (to reopen, reminding you that the new evidence to reopen need only be a "plausable" bases to reopen, not "outcome determinative").  Attig Steele suggests the new evidence be only "relevant", and not outcome determinative:  https://www.attigsteel.com/legal-updates/precedential-cavc-case-alert-turner-v-shulkin-16-1171receipt-of-new-and-material-evidence/

     In other words, given that the claim was denied in 2000, reopened and awarded in 2018, then, by defination they indicated it was sufficent to reopen.  Well, "unless" there was still more "new evidence" that they used to reopen it later.  Is this what the BVA alleged?  

[Berta]

3 hours ago, broncovet said:

 In other words, given that the claim was denied in 2000, reopened and awarded in 2018, then, by defination they indicated it was sufficent to reopen.  Well, "unless" there was still more "new evidence" that they used to reopen it later.  Is this what the BVA alleged?  

When the RO received the autopsy they re=opened the claim and awarded it, back to the date it was re opened.

The BVA appeal was for  a better EED.

"ORDER

Entitlement to an earlier effective date for the award of Dependency and Indemnity Compensation is denied." 

If you were a rater and received a death certificate and a  DIC claim for AO death , and the death certificate stated:

 "liver failure; diffuse abdominal carcinomatosis and metastases unknown primary."..............

there is nothing there to warrant a DIC claim under the AO Presumptives.

Often a coroner or a doctor  present at death will ask the spouse what disabilities the veteran had in their lifetime. In this case a full autopsy revealed the cause of death.

But it arrived at the VARO with the re opened claim,  almost 8 or 9 years after the veteran's death.

I dont even see how a CUE would work.

CUE involves established medical evidence, ( such as the autopsy in this case)

which was not established in this case until the VARO received it and awarded back to the re-open date.

The autopsy revealed:

"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. "

Lung cancer was not on the death certificate-it might have been "metastases unknown primary."

The VA was unaware of the "primary"  when they denied the initial DIC claim., as being the lung cancer.

There is a lot to the BVA decision , IN PART:

"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). "

Perhaps a lawyer could do something with that statement- I have no idea however, what they could do.

And time is of the essence on any CAVC filing of NOA.

 

 

 

 

 

Edited August 10, 2018 by Berta

[Berta]

Bumping up for widow