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Effective Date


Ann Bracey

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Before I file Form 9 I would like as many answers to this as possible. Since I was granted DIC and SC for husband's death, I am after an earlier effective date . I know the effective date of 2012 was made because I reopened with Nexus letter that was not in C-File when husband died in 2010. The letter from doctor had treated my husband from 2006-2007.  The first denied claim for SC was made in 2011 and the evidence includes VA Form 21-534 received 2010. After my long awaited hearing in 2017 finally granted DIC and SC for death May 2018 with effective date of 2012 when reopened. Should effective date not be 2010??

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You can not tell for sure, based on the evidence you posted.  The general rule for effective dates is that it will be the later of "facts found" or the claim date.  Even if you applied in 1998, you wont be given that effective date UNLESS the doc said you were disabled in 1998, and, your symptoms were consistent with that rating.  Carefully read over these rules and see what applies to you:

https://www.law.cornell.edu/uscode/text/38/5110

You should also read 38 cfr 3.156b and 3.156c.  Determine if the reopening was due to "service records" 3.156c or "new and material evidence to a pending claim", 3.156b.  These are treated differntly.  

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You asked in my profile-for me to comment on Broncovet's reply-

Broncovet did not consider the facts of your case.

I already commented on the claim, in past threads here.

Fact:The BVA denied the claim.

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

 

In part:

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). "

 

Fact: No Notice of Appeal was filed in time with the US CAVC (that I know of because you would have heard from vet lawyers right away. The NOA is public info.)

Fact: Your husband's death certificate did not warrant DIC.

Fact:The autopsy warranted DIC.

 

Fact: The VA did not have the autopsy for many years , after they asked for it.

Fact: The VA cannot be expected to award any claim without the critical evidence needed for the award.

As soon as I got my husband's autopsy I sent it to the VA .It was far more definitive than the death certificate was.And it completedly knocked down multiple ridiculous C & P exams, and it also proved that the VA had caused his death.(FTCA/1151 ) It also proved years later that the VA killed a decorated combat Vietnam veteran who also had two AO disabilies that contributed to his death.( Direct SC death under both AO disabilities)

Autopsies can often be the only substantive prove of cause and contributing factors of death.

If the BVA denies the claim again ( I agree with their decision above and found no CUE in it, and they will deny the EED claim again) then you can file a timely NOA with the US CAVC and perhaps one of the lawyers who contacts you will find someway to get the better EED.

 

I have had over 30 years experience with VA claims, to include EEDs and DIC claims and I want every veteran or their survivor to obtain their rightful awards but I do not see anyway you can receive a better EED.

Others will help- and since the claim appears to have been denied again, perhaps you should seek a lawyer,now.

However, I have been a pro se lawyer many times, (never lost a case) and apply those skills to just about every claim I opine on here and also on my claims, and ,based on the entire past BVA decision, I have no idea what any lawyer could do, to obtain a better EED for you.

 

I also obtained very favorable EEDs for all of my claims regarding my dead husband, because the VA malpracticed on his two AO disabilities. The VA also gave him posthumously  the proper and favorable EED for his 100% P & T PTSD.

 

All of that involved giving the VA the evidence they needed for the most favorable EEDS....When they needed it- and Most of it was filed along with the claims.

 

Others here have more time than I do these days- they will help.

 

They will have to access your different threads to do that. I dont have time.I am working on the most important issue of my life -for all veterans in the VA health care system and their survivors-Bill S 221 , in the Senate.

More important than even the AO issue.

The Bill ,when properly rewritten- which I have had to do, with correspondence to the Senate sponsors- will save lives! As it now stands it has three prime errors, that greatly concern me, after 20 years of collecting evidence I had sent to OAWB. None of the Senators are veterans, and they never dealt with the VA before. They do not know 38 USC and the established VA  legalize that involves the bill. It cannot stand as written.

It can be fixed.

It was the result of part of my Office of Accountability case, resulting from my WH complaint.

I am closing my password access here because my neighbor likes to read the info here, as a guest, from time to time.I regret I dont have the time to be here .

He is a 20 yr Retiree with a 10 SC %.He does not have his own PC, but has re opened his claim.

Others here will help you. Many you should start seeking a lawyer now.

 

 

 

 

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I explained to Ann, in another post, that she may have passed the appeal period if she did not file the form 9 within 30 days of the SOC.  This is explained at cck law:

https://cck-law.com/veterans-law/what-is-a-va-form-9/

I further brought up reopening with new and material evidence, via 38 cfr 3.156 c or 3.156 b.  

No, I have not read Ann's file, and I dont know if she sent anything that could be construed as reopening due to n and m evidence.  

 

 

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