Earlier Effective Date

[Ann Bracey]

Can an earlier effective date be achieved or proven with C-File evidence? Just May, 2018 I was granted DIC with 3.156 after husband died 2010.  I have C-File and information in it shows back to 2003 when he was diagnosed with condition that in 2018 granted SC. Also documentation through IRIS. I have been told different information as to what I should not do by DAV rep stating it could do more harm than good. The effective date now is 2012. Can you help???

[Berta]

You asked me a question on this in my profile ,in August I think,and I responded that I would post it here in the DIC forum.

I will try to find the responses and post them here..

[Berta]

https://community.hadit.com/topic/72455-new-member-needs-dic-help/

 

• Ann Bracey
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• Berta

Hi, 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, (profile post)

Ann

[broncovet]

I read through the previous posts, which Berta provided.  It sounds like your BVA decision "may" be past the 120 day limit, tho Im not sure about that.  If you are 120 days, or less, from your BVA decision, then file a NOA.  (Notice of appeal to the CAVC).  

You can file that part, by yourself as you may not have time enough to obtain an attorney this quickly.  The NOA is very simple, and you need not "argue" your case.  Just file a NOA IF you are 120 days or less.  You can/should hire an attorney but later, but they dont accept excuses for not filing regardless of whether or not you are represented.  

[Berta]

The impression I got too, Broncovet, was that this was outside the US CAVC filing period.

I dont know if the BVA case belongs to this widow.

If it does ,I agree with the BVA decision.

 

[broncovet]

IF the widow is still within the 120 day appeal filing window, then an appeal may still help her, EVEN IF the Board decision was correct.  

Here is a hyptothetical example, not really that far fetched.  

The BVA denies, because the exam report was unclear, insufficient.  However, the BVA makes "other" legal mistakes that an attorney catches, and files an appeal.  

The CAVC then issues a remand which usually allows the claimant to submit new evidence, similar to what happens at the CAVC about 45 percent of the time.    This can be a "reasons and bases" remand, since the BOARD has to give a reason and bases as to why they decided against the claimant.  If these reasons are "inadequate" in the eyes of the judge, then they almost always remand, and this almost always means the claimant can submit new evidence such as a new IMO clarifying the evidence in the claimants favor.  

The error the Claimants attorney catches need not be related to this..it can be something else.  

This actually happened to me!!!!

I got a denial on TDIU at the Board.  I hired an attorney, Julia Glover.  She found a mistake in the decision and appealed it, and won a JMR (Joint motion for remand, where the VA admits there was some error in the decision and agrees it should be corrected). 

After the remand, my attorney hires an IMO from a Voc rehab counselor, and even pays for the IMO up front.  She explained that she felt confident an IMO would work, and she submitted this as N and M evidence under a pending claim 38 cfr 3.156 b.  

The new evidence was sufficient for  the Board and I won my TDIU, as my attorney predicted.