Dingess-Hartman, Kent, and the VCAA

VCAA Public Law 106-475

          The Dingess- Hartman CAVC decision of 2006 generated thousands of VARO letters to veterans with VA claims pending as of March 3, 2006. Widows as well as veterans as well as claimants who had received a decision a year prior to the Dingess Hartman enactment date were supposed to also receive this letter. (1)

          The letters did not require a response but many vets called their vet reps to see what this was all about. This important CAVC decision added 2 downstream elements to the VCAA.

          The case added the requirement that VA must tell the veteran how they will rate the disability per the Schedule of Ratings and also how they will determine the earliest effective date if the claim succeeds.

          Kent, another important case decided by the CAVC in 2006 added the additional element that prior denied and then re-opened claims, under the VCAA, must have a clear statement to inform the veteran or widow of the “unique character of evidence” that is needed for their specific claim. (2)

          The VA in these types of claims is to review the past denial and then prepare the VCAA letter that is specific as to what they still need from the claimant.

          Prejudicial error analysis accounts for a major reason for the higher remand rate at the BVA. After the 2000 VCAA became effective, the BVA had to consider whether the VA erred in the VCAA notice the veteran received and if they did and it was an error detrimental and thus prejudicial  to the claimant, the BVA had to remand the claim for a “re-do” at the regional level.

          The Veterans Claims Assistance Act of 2000 is a letter headed with IMPORTANT-reply requested. It contains what the VA has and what they still need from you. It could state you need a buddy statement to support a stressor, or it could inform you that a C & P exam will be scheduled soon. They may state that in order to service connect a secondary condition, a medical opinion is needed. If VA has not been able to obtain private medical records from a doctor you mentioned, they might ask you to try to obtain them yourself. In one BVA remand, regarding a widow, denied provisions of the VCAA, the RO was instructed to tell the widow to obtain an independent medical opinion to associate the cause of death to the veteran’s service.

          The enclosed VCAA election notice that comes with the VCAA letter gives the claimant the chance to elect that they have no further evidence and they want VA to decide the claim as soon as possible.

          But if the VCAA letter informed them of evidence they need to obtain, by checking the second box, the VA will give them 60 more days to obtain and send the additional evidence.

          The VCAA Response Election form should be checked off, copied, signed, and dated and mailed to the VARO as soon as possible.

          Any veteran who receives a VCAA letter that is entirely generic and does or does not have an Election form should immediately contact their veteran’s representative.

          The VCAA and the subsequent provisions of Dingess Hartman and Kent are the ultimate Duty to Assist regulations, which are intended to go far beyond past historic VA evidentiary requirements. These provisions are intended to tell the veteran exactly what is lacking in the claim and necessary for proper resolve prior to a denial. It remains up to the veteran or widow to question any VCAA letter that is not appropriate, any lack of election notice enclosed with the VCAA letter, and then to provide to VA exactly what they want or that they state is acceptable evidence for a proper award.

1. SP5 Kelley- http://www.2ndbattalion94thartillery.com

2. James P. Terry,  Chairman, Board of Veterans Appeals  see Kent- 2006 Report to Sec. Nicholson