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hello and welcome to cck live my name is Christine Clemons and I'm a managing attorney at Chisholm
Chisholm and Kilpatrick and in this video I will be breaking down the details of a recent cck case
in 2019 the Veteran's surviving spouse reached out to cck For assistance with a claim for an earlier
effective date of DIC dependency and indemnity compensation benefits for service connection of
the veterans cause of death this was pending in an appeal before the board of veterans appeals when
um when this surviving spouse contacted us a little bit about the veteran service he had
served in the Army from 1966 to 1968 including at Korat and udapow Air Force bases in Thailand
before passing away due to multiple myeloma in 1996. although his widow had applied for a service
connection for the cause of death that same year in 1996 she was denied benefits years later she
reopened the claim and VA finally conceded the veterans exposure to herbicides in Thailand
and ultimately she was successful in establishing service connection for the cause of death in 2015.
but because she had submitted Service Department Records she felt she should be entitled to an
earlier effective date and so she appealed the effective date that VA had assigned to her of
2015. and when they did that when she did that rather VA discontinued her benefits entirely
so fast forward to uh the surviving spouse reaching out to us when when
cck took the case we thought that this would be a fairly clear-cut application of law to facts
um on on this earlier effective date argument but it turned out to be a little bit more complicated
after reviewing the facts of the case we determined that there were two separate issues
the entitlement to an earlier effective date and the severance of her benefits
the severance of benefits was further Complicated by the fact that due to some confusion in the case
um she didn't appeal va's finalization of that Severance and so she was no
longer receiving DIC benefits but it also wasn't on appeal
unfortunately we were past the one-year point to appeal that decision so we were beyond the appeal
period of that decision so as it turned out only the earlier effective date issue was on appeal
but it was seeking an earlier effective date for benefits that VA had determined she was
not entitled to anymore and so and we steadfastly believe that VA was wrong in that determination
um so we decided that the best likely outcome would be for us to First work to get that
benefit re-established um we also thought that va's action was pretty egregiously wrong so we
wanted to try to get her benefits reinstated um and to maximize the amount that she was paid
and to get her uh kind of reimbursed for that mistake that VA had made
so first a little bit on what VA did in order to sever her benefits VA had found that there
was a clear and unmistakable error in its own decision to Grant her benefits stating that a
statement from a spouse cannot be considered sufficient verification of perimeter Duty
um so she had given a statement because her husband was deceased
um there was other evidence in the file as well including maps of the base
and uh and you know again there was an impossibility of getting that statement from him
so this policy that VA had to require a statement from the veteran um you know we felt was not
really necessary and they even felt that it wasn't necessary the first time around um so something to
to be aware of is a clear and unmistakable error which is the standard that VA had to establish
it's a rare kind of error essentially the standard is that it's the kind of error that
people with like-minded people would not disagree as to the error in other words it's undebatable
so the issue of requiring a statement from the veteran as part of their policy uh we
said was was really irrelevant um because VA and VA had essentially conceded that it was
irrelevant when they um when they conceded his exposure even without his statement and that's
because they conceded it because there was other credible evidence of exposure
VA had correctly weighed the evidence we thought the first time to concede his exposure in granting
the benefit and therefore we argue that in order to find clear and unmistakable error
with their own decision that would be required to sever her benefits they would have have had
to establish by by undebatable evidence that he was not exposed to herbicides they couldn't meet
that owner a standard to establish cue um that was required before they could sever her benefits and
because of that their failure to establish that the legal standard to sever had been met before
they terminated benefits was itself clear and unmistakable error so essentially we were having
to argue through layers upon layers of clear and unmistakable error um how they're finding
that there was clear and unmistakable error was not accurate and that in fact it was clear and
unmistakable error because they hadn't met the legal standard required to sever her benefits
so what happened the regional office denied our motion um to uh revise their decision based on
clear and unmistakable error and we did have to appeal that decision to the board of veterans
appeals but ultimately cck was successful in convincing the board to restore our clients
benefits to the date of severance in 2018. so her GIC benefits were re-established and we got
them to reinstate them back to the date of the severance the improper severance we also thought
all along that the best way to get her the earlier effective date which is why she came to us in the
first first place for um those DIC benefits was to re-establish those benefits so once we had
done that we could kind of get going on an earlier effective date arguments so then in June of 2022
cck was successful in getting the board to Grant an earlier effective date for a service connection
for the cause of the Veteran's death back to 1996 and this was based on a regulation 3.156 C
um essentially what that regulation says is that anytime after VA issues a decision on a claim if
it receives or Associates with the claims file relevant official Service Department
Records that existed and had not been associated with the claims file when VA first decided the
claim VA will reconsider the claim and that was a way to get that earlier date there were Service
Department Records that had entered the file they were part of what helped VA establish his
exposure to herbicides in Thailand and because they were relevant to that determination that
they should have been used to essentially go back to the her original claim for benefits
um and we were successful in that so uh this this win resulted in decades of back pay for our client
um and she was very happy in the end with with the result here um so a few things just in closing is
um something to keep in mind there I've talked about clear and unmistakable error here today
we have um videos on clear and unmistakable error as well there's often error in VA cases
and the adjudication of cases but it's rare that uh that error Rises to the legal standard
required to establish clear and unmistakable error that's why it can be beneficial to work with an
accredited representative an accredited agent or attorney a vso who understands the nuances
so thank you for watching um as always if you need help with your VA claim or appeal don't
hesitate to reach out to see how our team of accredited Representatives may be able
to assist more cck case when summaries can be found on our website so be sure to check those
out and check out our other videos and follow us on social thanks and have a great day [Music]
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