Ann Bracey> Berta

[Berta]

You asked in my profile ( which I hardly ever read)

"BroncoVet and Buck52 have given me 2 different dates to file my Form 9. When you have a minute would you take a look??"

I dont do PMs and dont know what you mean by' take a look.'

I am sure  that  both Buck and Broncovet are correct. There are 3 filing options. This is the Feb 2019 new version of the I-9.

In the instructions, under # 4 you will have the answer. Just pick the one that is best for you.

 

https://www.va.gov/vaforms/va/pdf/VA9.pdf

[Buck52]

Its your choice   but I would wait?

I suggest go by the rating decision May 22 

This is a good question to ask berta  she may want you to hire an attorney ?? I 9  forms is more complicated than Filing NOD's

And if you do  I think the VA Will pay the attorney fees at 20% of retro.

 broncovet is the expert on paying for attorney's fee   Some way the VA will pick up the fee  but I am not sure how you would request the VA Pay the attorney? broncovet can give you a better answer than I.  I am not 100% sure on this...sorry

[Buck52]

Ann If you can't go by Ms Berta Advise as to what she has mention on this case to you here on Hadit

I suggest you Hire a good experince Veterans Attorney  or Hire a Accredited Veterans claims Agent 

[Berta]

Thank you Buck- that was my recommendation back in 2018 to Ann. To get a lawyer .It is still my recommendation. As well as others here in the past.I am sure you and Broncovet advised that months ago to her.

This one of many if her posts

I assume this regards the very same claim the BVA denied, and no NOA was filed. It is a question of when the entitlement arose. This is the entire BVA decision. I already analysed it in another thread- 

"Citation Nr: 1820956 Decision Date: 04/10/18 Archive Date: 04/19/18 DOCKET NO. 12-27 472A ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an earlier effective date for the award of Dependency and Indemnity Compensation. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD E. Miller, Associate Counsel INTRODUCTION The appellant is the surviving spouse of a Veteran who served on active duty from June 1966 to April 1970. The Veteran died in May 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Current jurisdiction resides with the St. Petersburg, Florida RO. In August 2016, the appellant testified before the undersigned Veterans Law Judge (VLJ) at a hearing at the RO. A hearing transcript is included in the claims file. 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). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Neither the appellant nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Claim to Reopen The appellant contends that the date of the award of DIC is improper. In an unappealed November 2000 decision, the RO granted non service-connected pension to the appellant because the evidence submitted supported that the Veteran had been the spouse of the appellant but did not support a finding for service connection for the Veteran's death. The appellant did not timely disagree with that decision and it became final. 38 U.S.C. § 7105 (West 2000); 38 C.F.R. § 3.105 (2000). In January 2010, the RO received a request from the appellant to reopen the issue of entitlement to DIC based on service connection for death of the Veteran. The RO reopened the DIC claim in an October 2010 decision and granted the appellant DIC based on service connection for death of the Veteran with an effective date of January 27, 2010. The appellant filed timely notice of disagreement and Form VA-9 to appeal that determination. In reviewing the October 2010 decision, the Board has determined that a new and material evidence analysis is proper for the DIC claim on appeal, as it was clearly adjudicated by the November 2000 decision. See Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (when determining whether a new and material evidence analysis is required, the focus of VA's analysis must be on whether the evidence presented truly amounts to a new claim "based upon distinctly diagnosed diseases or injuries," or whether it is evidence tending to substantiate an element of the previously adjudicated matter). Regardless of the RO's actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)). See also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the previously denied DIC claim before proceeding to adjudicate the underlying merits of the claim. If the Board finds that no new and material evidence has been provided, that is where the analysis must end. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). The question of whether new and material evidence has been received sufficient to reopen the matter is a threshold question in any case involving a previously denied claim. Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). That is, a finally decided claim must be reopened where the claimant submits new and material evidence relative to a fact that was unestablished at the time of the prior final decision on the claim. Shade, 24 Vet. App. at 119. For the purpose of reopening a claim, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Here, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156(a) has been received since the final November 2000 rating decision. Specifically, the appellant submitted an autopsy report detailing the cause of the Veteran's death was attributed to lung cancer. Lung cancer is a presumptive service connection disease for veterans with verified service in the Republic of Vietnam, as the Veteran in this case was. This new evidence was neither cumulative nor redundant, as the previous rating decision denied the DIC claim because the submitted evidence did not support a finding of service connection for the Veteran's death. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board finds that the additional medical evidence of record constitutes new and material evidence sufficient to reopen the claim for entitlement to service connection for death and DIC. In short, this evidence, if presumed credible, relates to an unestablished fact necessary to substantiate the DIC claim, i.e. whether the Veteran's cause of death was a service-connectible condition, and raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has been presented to reopen the appellant's previously denied DIC claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. III. Earlier Effective Date The appellant seeks an effective date prior to January 27, 2010, for the grant of service connection for the cause of the Veteran's death and related DIC claim. Generally, the effective date of an award of service-connected death benefits is the first day of the month in which the Veteran's death occurred if the claim is received within one year after the date of death; otherwise, the effective date of the award is the date of receipt of the claim. 38 C.F.R. § 3.400(c)(2) (2017). A specific claim in the form prescribed by the Secretary is necessary for disability benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a) (West 2014); 38 C.F.R. § 3.151 (2017). In this context, it should be noted that the provisions of 38 U.S.C. § 5110 refer to the date an "application" is received. While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p) (2017); Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2017). As explained above, the appellant initially applied for DIC in May 2000, the same month the Veteran died. A claim by a surviving spouse for compensation or DIC will also be considered as a claim for death pension and accrued benefits. 38 C.F.R. § 3.152(b)(1). The appellant submitted the Veteran's death certificate in support of the DIC claim. In August 2000, the RO sent the appellant a letter informing her that additional evidence was required to support the claim for service connection for the Veteran's death and related DIC. 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). As explained above, the appellant did not appeal the denial by submitting a timely Notice of Disagreement or other indication of disagreement with the administrative decision within one year. The November 2000 denial of her DIC claim consequently became final. 38 C.F.R. §§ 20.302, 20.1103 (2017). 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). ORDER Entitlement to an earlier effective date for the award of Dependency and Indemnity Compensation is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs:

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

The date her entitlement to DIC arose on January 27,2010 as the BVA states.

The veterans died of a NSC disability on the death certificate.

The autopsy however ( this is why I recommend autopsys) was far more definitive and proved the veteran died of an AO prsumptive condition contributing to his death.

The VA did not receive the autopsy for  about  10 years. They perform autopsies within days of death.

There was no CUE in the BVA decision, nor any other way I could foresee to gain a better EED.

The date of her entitlement arose on January 27,2010, when the VA got medical evidence (the autopsy) that warranted a SC death DIC award. thus the death was service connected on that date.

Va does not have a crystal ball.

Maybe a lawyer would have an idea on how to  gain Ann a better EED but believe me, I do not have the slightest idea how any lawyer could do that. The regulations are quite concise on the date entitlement arose- and that date is when the evidence VA has warrants a good EED.

Then again I never went to law school . I found nothing in the 2018 VBM by NVLSP to help either.

 

 

 

 

Edited April 3, 2019 by Berta
problems with high winds and dish-access limited