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Accrued Benefits


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#1 Berta

 
Berta

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Posted 17 September 2007 - 01:46 PM

If a veteran has evidence in their c file at time of death of potential award of any type of accrued benefits the VA often awards any SC comp due the vet but fails to consider SMC that could be due the veteran.

I had to prepare a bit of info for VARO as there has again been movement on my claims- my recent VCAA response (first VCAA letter I ever got in full compliance with the VCAA- I was successful in responding to in a way that drew out all of the evidence I sent them that they have never addressed.

A VA rep confirmed for me today what I always feared-
if the VA does not send an election form under the VCAA, the VA never gets a signed election form back and this election form is what triggers them to move on the claim if you have checked off that you have sent them all of your evidence and want your claim decided as soon as possible.

Without the form being received and then sent back this is why many claims-fully supported by medical evidence like my AO death claim, remain in limboland because nothing triggers the VA to even pick up the c file.
If the form is not sent to the claimant (in violation of the VCAA) the VA can sit on its thumbs forever knowing the vet cannotr respond to what they didnt receive.This is exactly how I explained this to Congressman Filner re my amendment to the VCAA.
Vet reps also can maintain their thumbs in their butts when they know the election form was never received by the claimant (they know because they get copy of exactly what the vet does under the VCAA.
I not only manipulated my VCAA response to cover all of my issues but also attached again what I checked off in box one as already sent.

My claim moved twice this past week and all the rep could think of is that they got the response from me and this generated them to do something-apparently on at least three of my issues.

ACCRUED BENEFITS---my point here -

If the C file has evidence that generates retro due to a claim the vet had pending at time of death the VA MUST consider SMC too.
If the veteran's medical evidence at time of death warrants additional accrued award of SMC retro-the VA MUST Award it.
(VA only pays accrued comp if the DIC app is received within one year after death-NO exceptions)

This is basis of my 2 CUE claims.Accrued SMC under VA established case laws.

"Accrued benefits can be sought for any type of monthly benefit that was due and unpaid based on evidence in the file at the time of the individual's death."
NVLSP VBM 2006 Edition page 543
38 USC 5121 and 38 CFR 34.1000 (2006)


My husband's medical evidence at time of death warranted both SMC consideration as well as an accrued award.
SMC is an inferred issue and the widow or widower should not have to file for this -unless they get a letter like I did long ago-
saying the veteran was NOT eligible for SMC under any circumstances.

They will eat them words!

IF the VA does not consider SMC in the accrued retro award letter, the widow has to raise this issue in a NOD on the DIC award-if the med recs support SMC as an inferred issue.
The NOD on the accrued award letter can be supported with evidence from the med recs that support a proper consideration of SMC and a potential award.
100% SC plus 60% or more additional SC independently separate disability- whether Section 1151 or direct SC equals SMC for a living vet as well as posthumous award for a deceased vet whose spouse has filed within one year of death for accrued benefits due the veteran.

Edited by Berta, 17 September 2007 - 01:57 PM.