Question???

[broncovet]

Good point Berta.  Before an attorney considers representing you, they want to see the BVA denial.  

However, its my opinion that the BVA decision alone, is not always conclusive in deciding whether the Vet deserves bentifs under the law.  

One example would be a BVA denial of an earlier effective date.  Sure, the decision looks good.  But, lets say the Veteran has an application he sent CERTIFIED MAIL RETURN RECEIPT REQUESTED, applying for the benefit earlier, which the BVA was not aware of, in part, because the Vet never ordered his cfile and had forgotten about this long lost informal or formal application for beefits.  This is an example of a theoretical case (but certainly plausable) where the board decision looks spot on, but a complete review of the entire cfile, along with the VEterans OWN records, may result in a very different outcome than the board decision alone.  

Ann may not have even known when her hubby applied for benefits.  Even the Veteran, especially if he is very sick or disorientated, may not know.  

For those reasons, I recommend Ann take her file to an attorney and have him review the file and offer suggestions.  

I had to fight long and hard for my benefits.  The VFW sent me a letter, after I had applied and signed the POA, and they decided to withdraw representing me because, they said, my claim did not have a chance at succeeding.  However, I knew more about my history than the Vet reop did.  I persisted and won.  Im glad I did not give up because a VSO was too lazy to read my entire file, and just told me to give up.  I wonder how many Vets "did give up", because their VSO told them not to apply, or to give up and abandon their claim...especially those who persisted and won anyway.

This does not mean all claims will succeed.  No..  There are Vets who have applied..and have exhausted all available appeals in a claim that wont succeed.  However, its been my experience that MOST claims will succeed if a Veteran is persistent enough, and willing to devote time and money to get an IMO, if needed, and to keep going on the frutstrtingly long appeal process.  

Edited January 26, 2019 by broncovet

[Berta]

Here is the BVA denial:

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

I saw no evidence in that decision that the veteran or anyone on his behalf ,had filed a claim prior to his death.

In part the decision reads:

"FINDINGS OF FACT

1. The appellant filed a claim based on the Veteran's death that was received on May 23, 2000, which pursuant to statute and regulation encompassed a claim for death pension and Dependency and Indemnity Compensation (DIC).

2. In a November 2000 decision, the RO granted a claim for non service-connected pension to the appellant. The appellant did not file a timely Notice of Disagreement or otherwise express disagreement with the decision and, as such, the November 2000 decision is final.

3. The appellant filed a request to reopen the claim for DIC in January 2010 based on service connection for the cause of the Veteran's death. The evidence received since the November 2000 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim for DIC. "

"CONCLUSIONS OF LAW

1. The November 2000 rating decision, which denied DIC, is final. 38 U.S.C.A. § 7105(c) (West 2000); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2000); currently 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017).

2. The evidence received subsequent to the November 2000 rating decision is new and material, and the issue of service connection for the Veteran's death and related DIC is reopened. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017).

3. The criteria for an effective date prior to January 27, 2010, for the grant of entitlement to DIC benefits based on service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1155, 5110 (West 2014); 38 C.F.R. §§ 3.1, 3.151, 3.152, 3.153, 3.155, 3.400 (2017)."

The decision clearly states why the denial is correct.

Maybe for some reason, the CAVC ,with a good attorney repping the claimant ,would have looked at this differently. But I sure dont know how . This was never appealed to CAVC.

Mak sure you tell your spouses that- if they have Probative evidence to award any potential DIC claim after you die- tell them not to wait 8 years to send it to the VA. The BVA decison is correct.

 

 

 

[Buck52]

Roger That Ms Berta...my mistake.....

[Ann Bracey]

Well, I feel like I have hit a brick wall..... knowing this is the intent of the VA! This is probably redundant but assuming all here are familiar with redundancy. My entire situation was made more difficult due to my own condition. (Multiple Sclerosis) In 2009 I went to VSO in Rowan County, NC and filed for service connection which was denied 2011 after Mike died 2010. Appealed 2011 decision which was denied in 2012. It took me until December 2017 to get hearing for service connection cause of death. Granted May 2018 cause of death and DIC. No where in C-File was there reference to claim filed in 2009. I want to thank all who have tried to help me and provided me with information. Having 2 brothers who are 100% I had to assist our mother fight VA for both. Had I know what I have learned here the fight may have been easier. Now I am very stressed and tired. I submitted my NOD for EED, received in Janesville, WI. Now, I wait again . Thank you all very much!

Ann

[Berta]

I am sorry Ann, and believe me you have received the best we can give. 

"No where in C-File was there reference to claim filed in 2009."If that claim is ever found it might make a difference but I dont know how.

Yes they want us stressed and tired and willing to give up. If they accept the NOD, it might open the door for you- but this is how we all learn. When my Army husband died ( I lost two disabled vet husbands) in 1981  I still had my baby in diapers and worked and went to college as well. I was so burned out at the time I could not understand that I could have filed a NOD when they denied-they did award me a VA wartime pension but the letter said I would receive no $$$ because my income was too high.There was only a slight potential for DIC anyhow but I could have gotten an opinion from the brain surgeon,who said my husband's brain tumor obviously had affected him in the Army. 

I didnt even begin to get smart on VAOLA until I volunteered at a VA vet center.1983. PTSD Combat Rap Group.

It changed my whole life.

 

 

 

[Ann Bracey]

Berta, thank you for your sweet reply. Just had to come back and ask you one more thing. I began receiving death benefits in 2010 when Mike passed. Why would effective date go at least back to 2009 or 2010? Thank you!