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mrsbud5273

Dic Help - Survivor

Question

My Dad passed away last week from a non-service related illness. He was in Vietnam and has been on 100% PTSD for 7 years. He had gone through the application process for VA disability for over 2 years before he was approved and he recieved back pay for that time. My question is...for my mom to recieve DIC for a non-service related death, the VA website says this...

"veteran whose death resulted from a non service-related injury or disease, and who was receiving, or was entitled to receive, VA Compensation for service-connected disability that was rated as totally disabling for at least 10 years immediately before death"

When is says "entitled to recieve", does that mean that the 10 year period dates back to when he was first diagnosed with PTSD, although he didn't apply for disability at that time...or is the 10 years begin at the time is application was approved? Please, if anyone has any insight, I would be very appreciative! I can't seem to get any consistent answers from anyone in any VA office I contact. Thank you

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3 answers to this question

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Did he have any claim pending at death that your mother is going to substitute herself for to continue?

Section 1318 claims can be very difficult to succeed in.

The VA is very strict on the ten year rule for 1318 DIC.

There is one way to attempt to gain DIC when ten years were not established as 100% SC.

That would be a CUE claim which could challenge the PTSD earliest effective date that the veteran received in his lifetime.

I found about 100 1318 CUE claims from widows at the BVA and all were denied but one:

I think they remanded it because she asked for a hearing.

What did he die from?

Have you checked the Agent Orange presumptive list of disabilities to see if there is possible way to file for direct SC death?

Citation Nr: 0926646

Decision Date: 07/16/09 Archive Date: 07/22/09

DOCKET NO. 06-07 292A ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in Cleveland,

Ohio

THE ISSUE

Entitlement to dependency and indemnity compensation (DIC)

benefits under 38 U.S.C.A. § 1318 on the basis of clear and

unmistakable error (CUE) in RO decisions dated in October

1947, October 1949, February 1950, December 1960, and May

1985.

REPRESENTATION

Appellant represented by: Veterans of Foreign Wars of

the United States

ATTORNEY FOR THE BOARD

Stephanie L. Caucutt, Associate Counsel

INTRODUCTION

The Veteran served on active duty from December 1941 to June

1945. He died in July 1986; the appellant is his surviving

spouse.

This matter comes before the Board of Veterans' Appeals

(Board) on appeal from an October 2007 rating determination

of a Regional Office (RO) of the Department of Veterans

Affairs (VA) in Cleveland, Ohio. The Board remanded this

issue in July 2008 for the issuance of a Statement of the

Case in accordance with Manlincon v. West, 12 Vet. App. 238

(1999). The agency of original jurisdiction (AOJ) sent the

appellant a Statement of the Case in October 2008, and she

submitted a Substantive Appeal in December 2008. The AOJ

then returned the case to the Board.

Please note this appeal has been advanced on the Board's

docket pursuant to 38 C.F.R. § 20.900© (2008). 38 U.S.C.A.

§ 7107(a)(2) (West 2002).

The appeal is REMANDED to the RO via the Appeals Management

Center (AMC), in Washington, DC. VA will notify the

appellant if further action is required.

REMAND

The appellant indicated on her VA Form 9 (Substantive Appeal)

received in December 2008 that she desired a hearing at a

local VA office before a member of the Board. As such

hearing has not yet been conducted, this matter should be

REMANDED to schedule the appellant for a local hearing before

a member of the Board. See 38 C.F.R. §§ 20.703, 20.704,

20.1304(a) (2008).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's

docket pursuant to 38 C.F.R. § 20.900© (2008). Expedited

handling is requested.)

Schedule the appellant for a hearing

before a member of the Board per her

request. Appropriate notification should

be given to the appellant and her

representative, if any, and such

notification should be documented and

associated with the claims folder.

The appellant has the right to submit additional evidence and

argument on the matter or matters the Board has remanded.

Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law

requires that all claims that are remanded by the Board of

Veterans' Appeals or by the United States Court of Appeals

for Veterans Claims for additional development or other

appropriate action must be handled in an expeditious manner.

See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).

_______________________________________________

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Could the PTSD be a contributing factor to the veterans death? If so your mother could still file. Need more information. What is the cause of death on the death certificate?

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Sharon is Right !!! I overlooked if PTSD could have been contributing factor-

Most coroners and MEs never put PTSD on a death certificate.

Death certificates have been amended to include PTSD (I helped a widow do that regarding another disability) BUT it still takes medical evidence that shows exactly how the PTSD contributed to death.She had an IMO too and she won her claim.

I also noticed that the BVA does not view amended death certificates in a favorable light unless there is supportive medical evidence for the nexus.

In one case the BVA actually stated t appeared there had been pressure put on someone to amend the death certificate in regards to a DIC case.

As Sharon asked-we need to know the documented cause of death and we can help more.

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