tdiu Accrued...will Your Spouse Get It If You Die

[Berta]

I know I have griped about my current situation with the VA.

I don't think others here realize the ramifications of it.

If you die with a claim pending for TDIU or higher SC rating and the VA awards it at 100% SC after you die (because your spouse applied for accrued benefit within one year after your death, and supported the claim with probative evidence of 100%, the VA will deem the disability as 100% SC plus P & T.

I have never seen them award TDIU P & T as an accrued benefit.

If the VA deems however the veteran died with 100% SC but it was NOT a Permanent and Total disability, the spouse will not get accrued benefits.

Death makes every disability Permanent in the veteran's lifetime, and if was Total in their lifetime, death did not alter that fact.

VA has never seemed to, as far as I know, come up with any significant cures prior to a veteran's death of any disability that is, in fact, ratable by 100%.

This is the logic of my VARO (Buffalo) that I am fighting over.

They are trying to get me to believe that my husband;'s 100% P & T stroke under 1151 (which they agreed was at 100% for almost 2 years (that was the CUE I won last month) was Not a Permanant and Total stroke.

Of course I had significant medical evidence they ignored showing that it was,and filed 4 CUEs on the CUE award that refused the accrued benefit.

In 2012 they did pay for 6 months 100% plus SMC, but nothing changed the fact that he is still dead with the 100% P & T rating, supported buy the evidence they completely ignored a few weeks ago.

My long point here is that if they can try to pull this on me and they know I am a claims advocate, they can certainly try to pull this on your spouse if you die with a claim in progress that would warrant, by medical evidence a 100% P & T rating.

I should not even had to prove this was a P & T disability but knowing how incompetent my RO is, I did prove that, yet they refused to consider the evidence.

Sec 1151s dont get DEA or CHAMPVA awards.I get those benefits under other direct SC awards.

But 100% SC ratings that are posthumous do award the spouse and children those benefits.

Unless the VA deems the 100% at death as Not P & T........

which is ridiculous....yet the VA tried to get me to accept that.

Make sure your spouse has info as to how to get to our web site if you die.

And live as long as you can !!!!!

I try to stay healthy just to spite those bastards.

[Buck52]

Good info here ms berta.

if a veteran is 100% P&T or TDIU P&T.....& Dies does this mean his spouse can still file on the benefits?

I had a friend who's hubby died of his S.C. disability's and she gets around 1100 month (Some type of DIC?)...that's a big difference than what he was getting.

he was also 100% P&T with SMC's Vietnam veteran with several AO disability's. He passed away in 2013

Who would she see about this? she used a VSO in her home town I think VFW or DAV?

Thanks for this Information ms Berta

..............................Buck

[Buck52]

ms berta.

would this be a cue? in your statement above you said.

I should not even had to prove this was a P & T disability but knowing how incompetent my RO is, I did prove that, yet they refused to consider the evidence.

..................Buck

[Berta]

You bet, Buck,. I again filed a CUE under 38 CFR 4.6 on their decision , within email to the Director and a CC to Ms. Hickey.

36 CFR 4.6 is not only basic VA 101 case law, it has a lot of power and I regret that I didn't use it when they were screwing around with me 20 years ago.

"if a veteran is 100% P&T or TDIU P&T.....& Dies does this mean his spouse can still file on the benefits?"

They can file for DIC and if the vet has the continuous TDIU or 100% rating for ten years.,or more prior to death, . In that case the spouse will receive DIC without proving that the SC caused the death.

Otherwise, they need a copy of the death certificate and I always say autopsies should be done, to determine if the veteran's SC caused or contributed to their death.That often will take an IMO.

Accrued is a different ball game.

My husband died with 2 claims pending. Higher rating then 30 for his PTSD and a Section 1151 claim.He made me promise a few hours before his sudden and very unexpected death that I would continue those claims when he died.( meaning they would be 'accrued' claims.

"he was also 100% P&T with SMC's Vietnam veteran with several AO disability's. He passed away in 2013"

"Who would she see about this? she used a VSO in her home town I think VFW or DAV?"

Not enough info here to know if they still owe her money ....did he have claims pending at death? If so did she file for accrued within the first year after death?

Did he see his proper AO awards in his lifetime? If not did she contact NVLSP when the new AO regs came out?

If she was a Footnote One Nehmer claimant ( most of us widows and Veterans under Nehmer were Footnote one claimants),

due to the 2010 Nehmer regulations, she was eligible for accrued benefits, if he had AO IHD, Hairy Cell B, or Parkinsons, that had been noted as NSC in a past decision. Nehmer widows under the 2010 rtegs did not have to apply within the one year accrued deadline.

Footnote One Nehmer is explained in the AO forum.

Can this widow join us here at hadit?

Personally I had a few vet reps and would never want one again.

We know more here about DIC ,Nehmer, and accrued regulations than they did.

"I had a friend who's hubby died of his S.C. disability's and she gets around 1100 month (Some type of DIC?)...that's a big difference than what he was getting."

Yes it is, I get 1233 a month..

They add extra for dependent children.

Edited April 28, 2015 by Berta

[free_spirit_etc]

So they are saying that your husband was 100% from the stroke for 2 years, but they won't pay for more than six months because they say his stroke wasn't permanent, even though he died?

At my hearing, the BVA judge said my husband met the standard of having a "current disability" because he died. He was smart enough to realize dead people are disabled.

[free_spirit_etc]

Berta,

Here is an interesting claim http://www.va.gov/vetapp12/Files5/1236924.txt

[Berta]

"So they are saying that your husband was 100% from the stroke for 2 years, but they won't pay for more than six months because they say his stroke wasn't permanent, even though he died?"

Exactly...this is what the Director is trying to get me to accept. The stroke was found,in addition to the other malpractice, to have contributed to his death by VA Central Medical review in my 1997 wrongful FTCA case.

I emailed Ms. Hickey again this AM who has certainly helped and gotten me to this point (this claim was not acknowledged for 2 1/2 years.)

and CCed the Director of my RO and also I CC Secretary McDonald this AM.

The decision granted the CUE I filed in 2012 ,100% plus SMC (2 dependents ) from Aug 9 1992 to October 14,1994)

They paid 6 months of that accrued in 2012 under a separate award. But I filed CUIE in 2012 on the award for the entire 22 months of accrued.

They have not given me any single rationale or legal reason for not paying me the additional accrued.

Thanks for the BVA decision. I found MANY accrued awards there (which concerns me that the ROs couldn't award them a lot sooner) for veterans who died with a claim pending that the survivor ultimately proved was 100% in their lifetime.

The P & T status should not even be an issue because it was never questioned in those BVA decisions at all ,but for some reason, the VA has questioned it in my case.

Yet all of the evidence they verified they had in March does show my husband was P & T due to this 1151 stroke in addition to the 100% SC PTSD P & T accrued award I got in 1997.

VA case law says that 100% SC and 100% 1151 MUST both be paid with no offset.( to claimant whether a survivor or a veteran) This is why they paid me 6 months accrued for this stroke in 2012.

This is part of the email I sent this AM

"I also am CCing Secretary McDonald , as well, because if former VA Secretary Vogel's letter to my husband ( Exhibit A) of my evidence, is again ignored by the Buffalo VA."

"that would indicate anything Secretary Robert McDonald might document on a veteran's behalf, on VA's letterhead, would
receive the same callous disregard at my VARO, that former VA Secretary Vogel's letter has received.
so far from the Buffalo VARO,since I filed this CUE request in 2012.."

"My ebenefits reveals nothing on this pending issue and the man at 800 said NODs would be handled within a 137 days period. My NOD was filed over 910 days ago., AFTER I filed the CUE request.

They dont need to even read my NOD, they need to correct their Clear and unmistakable errors in their March 6th, 2015 decision.(Prepared by JL)

1. Violation of 38 CFR 4.6 by AGAIN ignoring my evidence.

2,. Lack of proper CVA ratings in the 2015, per the 1998 rating decision .My Husband's brain damage alone was Total and Permanent ,due to multiple transcientts ischematic attacks misdiagnosed by VA as well as the major CVA of August 1992.( FTCA VACO Peer Review,death certificate, 1151 DIC award 1998, and autopsy.)

3. Lack of any regulation whatsoever for the denial of the accrued benefits that I am still eligible for .
.
4. And the inaccurate phone call from Ms. Mallia saying the veteran was NOT 100% P & T and therefore that is why I was not eligible for any accrued. They paid accrued for the first 6 months in 2012.
What significant new regulation has changed the standing regulations for accrued benefits for 100% P & T deaths?..... Whether SC deaths or 1151 deaths?.

I am a volunteer disabled veteran's advocate.
This decision has ramifications for any survivor of a veteran whose 100% SC is NOT deemed Permanent and Total at death of the veteran..Even if they have evidence that it is ."

(I had to change around the actual email a little here because I already have explained it here )

The P & T designation, free spirit, should not even have been an issue, yet all of my evidence supported that status.

The letter from former Secretary Vogel clearly states to my husband, received in his lifetime and obviously in VA 's possession in his lifetime stated that he was 100% Permanant and Total by a NSC stroke.

It WAS NSC at that time. And in a 1998 decision as NSC .But I proved that is was a Section 1151 stroke, granted by the Nehmer VARO in 2012 as this was one of two CUEs pending at my RO since 2003 (IHD) and 2004 Stroke) that they granted because those CUEs were contingent on a proper Nehmer award. The Nehmer award was for the AO IHD (I filed CUE because the VA had never acknowldged the IHD in any rating decision) and CUE for the NSC stroke which all medical evidence warranted an 1151 designation and accrued award.....

I seem to be getting angrier by the day on this. I Cued their bogus April HBP denial and they fixed that right away but said no accrued due---which would be correct if they had done this CUE filed before that claim, as they cannot pay 100% 1151 for 22 months and then the 10% 1151 HBP claim....as far as I know but I might NOD that decision anyhow.

In that April denial they committed 4 CUEs which they had to fix and the director apologized for 2 of them.

I dont need their apology, I need to have my rights acknowledged.

Accrued benefits and particularly 38 CFR 4.6 are basic VA 101 regulartions.

If we survivors file for accrued benefits within one year after the veteran's death we are as eligible 20 years later as we were then.

Nehmer understood that but they only awarded the initial 6 months ,in 2012, so I had to CUE them.

They did the rest of the AOIHD claim as best as they could.

Like my husband's AO DMII, the IHD was misdiagmnnosed and Never rated at all because they told him he had a sinus infection.

Even after doing an ECHO when he had the stroke in 1992, the main VA cardiologist at Syracuse told me there ws nothing wrong with his heart.

I think I am angry because the reality of this statement is what I face every day........

The VA almost got away with such negligence that,to me it bordered on murder, because of the cover up I proved occured at Syracuse.They lied to me and to my husband, a decorated combat veteran.

How many times does this happen and yet the survivors might never even know what VA really did to their deceased spouse that could have contributed to or caused a needless death ?

And only an autopsy can reveal the true extent of malpractice when a veteran dies.

.