BVA reversed after missing legal issue in Survivor's DIC Appeal.

The Court of Appeals for Veterans Claims (CAVC) frequently issues "single-judge" decisions that are not precedential.  In other words, other Veterans and their lawyers cannot rely on the decisions for a particular "holding" or "legal ruling". However, these non-precedential decisions do serve a couple of purposes. First, they are instructive for helping attorneys and  Veterans understand the law of the VA Claims process. Second, they give attorneys and Veterans strategies how to approach similar cases on similar facts. Take the case of  Helen Silimon. She is the surviving spouse of a deceased Vietnam Veteran.    The Court of Appeals for Veterans Claims (CAVC) vacated an erroneous Board of Veterans Appeals (BVA) decision in her case, and remanded her claim for DIC to the Board of Veterans Appeals (BVA) to correct a certain legal error: the Board of Veterans Appeals (BVA)'s  failure to provide an adequate reasons and bases for its decision. Here are the general facts.  The Veteran's Surviving Spouse filed a claim for Dependency and Indemnity Compensation (DIC) in 2001, after her husband (a Vietnam Veteran) passed away. The VA denied her request for Dependency and Indemnity Compensation (DIC) (often referred to as "service-connection of a veteran's death") in March 2002. In April 2002, the Veteran's surviving spouse submitted documents to the VA Regional Office containing these statements: 1)  Jet fuel killed my husband. 2) I will never settle for this decision. I need this claim. The Review Board did not do justice by me his widow and I will appeal.  (paraphrased actual statements quoted in decision). The VA Regional Office ignored these statements, and did not respond to them.  Years later, the Veteran's surviving spouse filed a request to reopen the denied Dependency and Indemnity Compensation (DIC) claim.  The Board of Veterans Appeals (BVA) denied the claim on the grounds that there was no "New and Material Evidence" to reopen the claim. The Court of Appeals for Veterans Claims (CAVC) remanded the decision to the Board of Veterans Appeals (BVA).  Why?  Because - again - the Board of Veterans Appeals (BVA) failed to consider a rather obvious legal question: Was the surviving spouse's correspondence in April 2002 effectively a Notice of Disagreement (NOD)?  If so, then the claim would still be open and pending, since the VA failed to respond.  Where a claim is open and pending, there is no need to submit "new and material evidence" to reopen the claim. The law tells us that a Notice of Disagreement (NOD) must express "dissatisfaction or disagrement with an adjudicative determination by the [VA Regional Office] and a desire to contest the result."  38 C.F.R. § 20.201 (2012).  It need only be in terms which can be reasonably construed as expressing disagreement with that determination and a desire for appellate review.  No particular form is needed for a Notice of Disagreement (NOD) - the only "form" requirement is that it be in writing. Now, truthfully, there is no way to know if this particular surviving spouse will be able to win on the merits of her appeal - that her husband's cause of death was related to her service. However, she is entitled to the appeal process the law requires. We may never know how this case turns out, but I am hopeful that the Board of Veterans Appeals (BVA) remands this case to the VA Regional Office to issue a Statement of the Case (SOC) so that Ms. Silimon may have "her day in court" on the merits of her claim for Dependency and Indemnity Compensation (DIC). ********** The Attig Law Firm represents US Veterans in their disability benefits claims to the VA.  The Attig Law Firm represents Veterans nationwide before the Board of Veterans Appeals (BVA), or the Court of Appeals for Veterans Claims (CAVC). For claims at the VA Regional Office level, the Attig Law Firm focuses its efforts on Veterans (and the Surviving Spouses of Veterans) in Texas, Arkansas, Colorado, Pennsylvania, North Carolina, and South Carolina. If you are a Veteran (or a surviving spouse of a Veteran) and have a claim before the Board of Veterans Appeals (BVA), or the  Court of Appeals for Veterans Claims (CAVC), it is very important that you consider hiring an attorney with experience handling such claims.  Even if you don't hire the Attig Law Firm - find a reputable and competent attorney to help you with your Court of Appeals for Veterans Claims (CAVC) Appeal. No post on this website is meant to be legal advice and the posts on this website do not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the Veteran, some power. This information is not widely or easily accessible to Veterans.  The information presented on this website is a general description of law and processes; each case is different, and there may be approaches listed here that are not accurate or applicable to your case. Likewise, there may be information that is applicable to your case that is not provided on this Veterans Disability Compensation Blog. It is very important that the Attig Law Firm notes that each and every Veteran's claim is different. Just because the Attig Law Firm was able to secure substantial past-due benefits for one Veteran or Veteran's spouse does not mean or imply that we will be able to do so for you.   In some cases, the Attig Law Firm may not be able to secure any financial compensation or past-due benefits due to the facts or law of your particular case. It is best to consult with a lawyer familiar with VA Disability claims and benefits or a Veterans Service Organization to examine your particular case.  If you would like to discuss your VA claim with a lawyer who handles VA Benefits and Disability Appealscontact the Attig Law Firm, PLLC, for a free consultation with a VA Benefits attorney.
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Walter Williams says:

I am 100% va disabled vet for ischemic heart disease. Under Nemertea case the va gave me 30% from 1987 and 100% from 2009 to now. I was working for the airlines and I went out on 100% social security disability and a that time the airline put me on a medical leave on oct 1990 . I appealed my va claim in 2012 for 100% disability for unemployability back to oct 1990 when I went out and could not work any more. My appeal is still sitting in Houston with no action since oct 2012. Do I need legal help. Thanks. Walter Williams

Chris Attig says:

Walter –

Thanks for sharing – I’m really glad to hear that those Nehmer rules got you a 1987 Effective Date.

Deciding whether you need legal help is a decision that only you can make. Are you having a tough time with the law and arguments? Overwhelmed by the VA? Rather have a professional deal with the VA? These are some of the reasons – not all, just some – that folks choose to hire a professional advocate.

When you are ready to hire an advocate, check out my FREE ebook – 8 Things Veterans Should Know Before Hiring an Attorney. I’m going to give you the “inside scoop” on finding the right Veterans Benefits attorney for your claim or appeal.


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