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Posted 27 May 2009 - 07:09 AM
one widow seems to have misinterpreted the Accrued benefits regs-
Simply put- if a veteran has a pending claim at time of death-the surviving spouse can claim 'accrued ' benefits via the 21-526.
Accrued benefits can be paid to the surviving spouse or in equal portions to the next of kin.
However NO accrued benefits are paid to anyone unless formal application has been made within one year after death.
Even if the 534 is never filed , any next of kin can apply for accrued if they are eligible.
The important thing on accrued benefits is that the claim MUST have been pending at time of death.
Pending can be at any stage of the appeals process.
Example- my husband had a Sec 1151 claim and also a claim for higher PTSD rating at time of his death. I re-opened both of these pending claims-within one year after his death- when he died.
I received accrued benefits.
Example- local widow filed DIC form and asked for accrued benefits.
The veteran had no pending claims at time of his death.
She was not eligible for any accrued benefits.
Example- a veteran dies with denial she had just appealed calling VA's attention to an IMO they ignored in the denial letter. The claim is still pending at time of death.
The husband files for accrued benefits within one year after her death , VA re-opens under his name and addresses
this IMO as in the C file at time of death and is probative to the claim for accrued benefits.
The husband receives the accrued benefit award.
If a CUE had occurred in a final decision of the deceased veteran-this also is one potential way of establishing accrued benefits-
not easy but possible-
also if an administrative issue or a change in any law had prompted VA to re-adjudicate a claim prior to a veteran's death, this also can be basis for an accrued benefit claim.
The main three considerations for accrued benefits are:
1. pending claim at time of veteran's death
2. application for accrued benefits received within one year after death
3. medical evidence in C file at time of death that warrants accrued award.
All of this takes time-my accrued claims took 3 years- every time VA denied I found more evidence in the C file to warrant the awards.
If an IMO can support what is in the C file and medical records,the VA will consider this as based on evidence in VA's possession at time of death.
An accrued benefit claim can generate denials SOCs, and SSOCs etc etc etc and the survivor must combat every denial with evidence in VA's possession at time of the veteran's death.
For ALL Nehmer Class Action survivors and for any survivor regarding a veteran's death on or after December 16 ,2003
the accrued amount includes ALL accrued benefits due the veteran at time of death.
The 1991 Nehmer Court Order made this very clear to VA as to AO veterans
and their survivors or to their estates but I believe MANY survivors in this class action AO case have never received their proper accrued awards.
Hope this helps anyone seeking accrued benefits.
Posted 27 May 2009 - 07:59 AM
The widows would be welcome here and we also appreciate the widows who are here already. I personally think that the VA should review what it is doing for spouses and family and make it better.
Posted 27 May 2009 - 06:54 PM