Monday, June 30, 2014

Veteran Affairs effective date appeals

There are many federal directives on the effective date of a VA claim. This is a complex area and you may need an attorney if you appeal to the Board of Veteran Appeals (BVA) on you effective date of a claim.

Before you submit an appeal for an effective date change, become familiar with these federal directives and court cases,

Directives and rulings:
1. 38 CFR, Part C, §3.156(b) and §3.156(c)(3) & (4)
2. 38 C.F.R. § 3.400 (o)(2) and (b)(2)(i)
3. McGrath v. Gober, 14 Vet. App. 28, 35 (2009)
4. DeLiosio v. Shinseki, 25 Vet. App. 45, 56 (2011)
5. 38 U.S.C. § 5110 9b)(2) and (b)(3)(A)
7. Clemons v. Shinseki, 23 VET.App. 1, 5 (2009).
8. Harris v. Shinseki, no. 2012-7111 (Fed. Cir. Jan. 4, 2013)
9. 119 congressional record, 17,571(1973). Pub L no. 93-177


Askniod wrote an excellent article on this topic.   In summary: 

. . . [o]nce an effective date has become final due to the failure of a claimant to appeal it, a claimant’s only recourse is to have the final decision revised on the grounds of clear and unmistakable error (CUE).

This means if you receive a VA regional Office (VARO) ruling denying your claim, you have one year to appeal it to the Decision Revue Officer (DRO) or the BVA. if you fail to do this, the effective date issue becomes moot. 

However, if the VA regional Office (VARO) fails to issue a Supplementary Statement of Case (SSOC), the Case is still considered open or unfinished under 38 CFR §3.160. 

An SSOC denies the claim and provides  the VA's rationale for the denial. It also provides procedures for appealing the DRO or the BVA. 

Appeal to BVA on a VA Form 9. There was a new 21-series form for DRO appeals, too, but Rightardia was not able to find any information on that form. You should not use a Form 9 to appeal to the DRO. 

Say that you are representing yourself pro se and the VARO sends you a ruling, but forgets to issue an SSOC. essentially, you were not advised or your right to appeal and the VA failed its Veterans Claim Assistance Act (VCAA) duty to assist. 

This is a worst case scenario for the VA if you file pro se because they can not blame a veteran service officer (VSO) form the DAV or the Amvets for the oversight, 

The bottom line is if the VA failed to advise you of you right to appeal, the claim is considered open or unfinished from the the day the original or subsequent related claims for the medical condition were submitted, 

Whats in your wallet could be a lot of VA government money if the VARO failed to issue an SSOC several years ago. 

Check your c-file and home files for old SSOCs if you have opened a new claim for a medical condition that was denied in the past.

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