free_spirit_etc

Pete992, Thanks for posting that. That is much more clear than the initial post. The initial post seemed to imply that an earlier effective date is pretty much a given if the evidence was in the file. But there are hoops to jump through and things to prove before you get there. And the VA can be pretty tricky in plugging some of those holes.

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.

Jazar, I think you had an entirely valid question. This site is full of questions of people asking how much they will get for certain percentages of disability, how much they should get retro, etc. I don't see this concern as any different from those. And I don't think you should have to settle for being happy that the rest of your loans are discharged, if they actually owe you a refund for payments, especially as we don't even know how much you paid in the interim (that should be refunded) and how much they discharged. Under the old policy (for applications filed prior to July 2013) when you filed for disability waiver on student loans they told you to continue to make payments until you were notified of your temporary status. Once you receive the permanent status, they should refund any amounts you paid since the time they have determined you were disabled. The new policies are available online, if you filed after July 2013. http://www.disabilitydischarge.com/TPD-101/ What Happens If I Apply Based On VA Determination Of Unemployability Due To Service-Connected Disability? The Department will evaluate the required documentation you submit and either approve or deny your TPD discharge request. Approval If the Department approves your discharge request, we will notify you and the holders of your loans and/or TEACH Grant service obligation of the approval. We will also instruct the loan holders to return any loan payments received on or after your disability date to the person who made the payments. For this purpose, your “disability date” is the effective date of the VA’s determination that you were unemployable due to a service-connected disability. After being notified that the Department has approved your discharge request, your loan holders will discharge your loans. If you don't have a record of what you paid since August 2000, you should be able to create an account on the loan holder's website and get a statement of payments. You are wise to start checking out what you should get. This process, like all Government programs does not always go as smoothly as it should. So it is best to know where you should stand.

Here is a case where the BVA granted SC for Mesothelioma -- based on a VA physician, as well as IMOs, connecting it to AO exposure. http://www.va.gov/vetapp07/Files5/0740851.txt

I wasn't talking about any tangent on retro. I was referring to this thread That was started by you and discusses your claim. I thought maybe you intended to post your comment about what the DAV service officer told you in that thread. That thread has a lot of previous information about your issue. THIS thread, the one you posted in, is about another issue concerning another veteran. I first read your post and scanned up the thread, and assumed it was posted by diver, as this whole thread was about his issue. But I was a bit confused, and so I finally looked and realized you were not diver, but then I was trying to figure out how your post related, as it was your first post in this thread, but it seemed to assume we had some background info on your claim. Then I clicked on your name to see if I could find some background info -- and noticed you had a thread about your own case (and with a similar title to this thread). So I thought maybe you posted in a different thread than you intended to.

Okay. I was thinking more of an informal request to reopen -- so I guess it would be more of an informal claim, than showing of intent to file. But in order for the informal claim to occur, the claimant would have to show intent to file / reopen. 38 C.F.R. § 3.155© © When a claim has been filed which meets the requirements of § 3.151 or § 3.152, an informal request for increase or reopening will be accepted as a claim.

You should be refunded the amount you paid since August 2000.

Hardtimes, I am so sorry to hear this. My heart goes out to your family. The adult children may want to contact a veteran's attorney at some point. They may be entitled to something. If the children paid any expenses for their mother's last illness or funeral, they may be entitled to reimbursement for those costs out of any money due to their mother. Again, I am so so sorry to hear this.

Oops! I was off base....

Highoctane, I see you have another thread with a similar title. You might want to post this in that thread and so it is easier to follow the rest of the story.

Good luck

Fat, As long as a new decision is issued, the veteran can apply for life insurance. However, the veteran has to be otherwise insurable, except for their service connected conditions. So if the veteran has non-service connected conditions that would cause them to be not insurable, they might not get the insurance. For instance, by the time my husband was granted SC on a couple of conditions, he already had lung cancer. Though he was eligible to apply for life insurance, he most likely would have been denied, because his lung cancer was not SCed at that time. By the time the lung cancer was granted SC, he had already died. They really should have better policies to enable a surviving spouse to go back and claim the insurance if a veteran dies prior to the decision granting SC, but at this time, they don't. As it stands, if the veteran dies before service connection is granted, the surviving spouse has to show that the veteran was "mentally incompetent" from a service connected disability at some point in the two-year period prior to their death. Though some decisions have counted the veteran's condition immediately prior to their death as a showing of incompetence, other decisions have indicated that does not count. Additionally, the surviving spouse must file a claim for the insurance within two years of their death. Many times SC for the condition has still not been granted at this point. Since the VA is often the entity responsible for taking forever to grant claims, they really should rethink the way they handle the life insurance. If the veteran could not apply for life insurance because the VA had not granted service connection for their condition at the time of their death, the surviving spouse should not have to jump through the showing of mental incompetence hoop. They should not have to show "good cause" for why the veteran did not apply. The good cause is the fact that they could not apply until the VA granted SC. They should only require the surviving spouse show the veteran had been mentally incompetent at some time prior to their death if the veteran had actually been granted SC for the condition during their lifetime, and thus, had the opportunity to apply for life insurance. I also fail to understand why the surviving spouse has to apply for gratuitous life insurance within two years of the veteran's death. Again, if SC is still not granted at that point, it seems like they should be able to apply once SC has been granted. As far as I understand, if a veteran does not have the veteran's life insurance at the time of their death, and they have a pending claim for benefits, the surviving spouse should file a claim for gratuitous veterans life insurance within two years, even if SC has not yet been granted. The decision on whether they are entitled to life insurance should be deferred until such time as the decision on SC has been finally decided. If the decision is not deferred, the surviving spouse should keep appealing that decision, on the basis of that whether the condition is SC has not been finally decided. However, the surviving spouse will still have to build a case that the veteran was mentally incompetent at some point before their death in order to receive the life insurance benefits. And again, though one decision counted the hospice nurse's documentation that the veteran was unable to conduct their daily affairs for several days prior to their death as evidence of mental incompetence, other decisions have stated that this type of mental incompetence is not what Congress intended. So this can still become an obstacle in the claim. The VA does not have to inform the surviving spouse of their potential eligibility for gratuitous life insurance -- so it is up to veterans to get the word out. In my case, I did not know about this -- and missed the two-year deadline to apply.... and I have, thus far, not found a way around that. (Maybe I should put it in my signature line.). There is more information on it in this thread

I certainly agree that a vet should file for an earlier effective date once the claim has been granted, if the evidence supports that. But if they did not appeal an earlier decision on the claim, the effective date will most likely be the date the veteran informed the VA of their intent to reopen the claim, unless they can show a CUE on the previous decision. You made a very good point about the VA omitting evidence. If they did not consider the evidence in the initial claim, then you could make a case that the effective date should be based on the evidence that was in the constructive possession of the VA at the time the previous decision was made, but not considered at the time of the previous decision.

Great advice Broncovet. I didn't even think about the pension option.

Wouldn't the earlier decision need to have a CUE for them to grant an earlier effective date on a reopened claim?

You should be able to get a paper copy of your C&P exam if you go to the facility and ask for it. If it is hard for you to read the medical reports, you might want to consider finding someone to help file your claim. It will be difficult to pursue a claim without knowing what all the evidence says. Do not count on the VA paying fair. You need to take care of yourself, or find someone who will take care of your interests, during the process.

This was an interesting case, but it can't be cited as precedent. But a non-precedential decision may be cited "for any persuasiveness or reasoning it contains." See Bethea v. Derwinski, 252, 254 (1992). UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 09-1011 RONNIE L. ELMORE, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before MOORMAN, Judge. "B. Tinnitus The record before the Court raises the question of whether the appellant has a pending unadjudicated claim for tinnitus raised below. Although the appellant twice denied tinnitus, he clearly expressed in his original claim for compensation for a hearing condition that he was exposed to weapons fire during combat and has a hearing condition as a result of that exposure: "Iwas around 105 Howitzer when it was fired, M60, and rifles. . . . I have a hearing loss and request a VA examination. I have just lived with this condition." R. at 310. Thus, VA was aware that the appellant was experiencing some hearing condition that the appellant related to service when it 3 ordered the auditory examination. The May 2007 VA auditory examiner ruled out bilateral hearing loss as a diagnosis, but it is clear from reading the examination report that the appellant received a diagnosis of bilateral tinnitus. R. at 185. The appellant and his counsel had ample opportunity to express an intention to seek entitlement to service connection for tinnitus with even the threshold requirements of an informal claim pursuant to 38 C.F.R. § 3.155(a), but failed to do so as discussed above. However,notwithstandingtheappellant's representation duringthedevelopmentofhisclaims before VA and at the Court, the appellant is entitled to a liberal reading of his filings. See Robinson, supra. Following the May 2007 VA auditory examiner's opinion, it appears that the facts before the Board were that (1) the appellant had a hearing condition he attributed to noise exposure inservice and was "just liv[ing] with this condition," (2) the hearing condition was not bilateral hearing loss, and (3) the appellant had a diagnosis of tinnitus and complained of " static" in his ears. R. at 310, 185. This suggests the strong possibility that the appellant currently has an unadjudicated claim for tinnitus at VA that the Board could have construed as being included in the appellant's claim for hearing loss. Cf. Clemons v. Shinseki, 23 Vet.App. 1, 6 (2009) ("To deny the appellant's claim for lack of a current [] condition would have been entirely contrary to the medical evidence—it clearly shows there is a diagnosed current [] condition."). Although a claim may identify only one diagnosis, it must be considered a claim for any disability that may reasonably be encompassed by factorsincluding(1)theclaimant's description oftheclaim,(2)thesymptoms theclaimantdescribes, and (3) the information the claimant submits or that the Secretary obtains in support of the claim. Id. at 5 (2009). Therefore, in recognition of the strong possibility that the appellant currently has an unadjudicated claim for tinnitus at VA, the Court notes that he may seek adjudication of that claim below. See DiCarlo v. Nicholson, 20 Vet.App. 52, 56-57 (2006). Should the appellant receive a final Board decision regarding a presently unadjudicated claim for tinnitus with which he is not satisfied, he will be free at that time to appeal the Board's decision to this Court."

TreeRoot, You will want to get a copy of the C&P exam and all of your service medical records, as well as any other medical records that support your claim. How much you need to build your case will depend on what the C&P exam says. Is the VA stating your PTSD is connected to the service?

We haven't heard back from the OP on this -- but since the title of the thread is "Survivor dies before during the appeals process" I am operating under the assumption that the issue is not what survivors can do if the vet dies before the appeal is complete. I think the issue is that the poster is a survivor, rather than the vet, and the issue is about whether the survivor's children will be able to get the benefits they are owed if they die before the appeal is complete. If this is true, the faster the decision can be processed (correctly) the better, if the children are already older than 23, because adult children don't have many rights to benefits. And actually, the survivor has enough to worry about already... without more VA BS. So hopefully, if they could contact the Office of Survivors and / or Allison Hickey, and get some movement on the claim, that would be great. I hope if they let them know they are a survivor and they have a terminal illness, someone will get the ball rolling.

Here is the thread for the Office of Survivors Assistance: Email - OfficeofSurvivors@va.gov Looking over the thread,I see I had tried to obtain a copy of the medical opinion for TWO YEARS! I emailed them and they told me that they couldn't help, but if I gave them the RO I was working with and my claim number, they would forward the request to Consumer Affairs Liaison for assistance. I sent them the info January 19, 2010. The RO acted on my request two days later, January 21, 2010. I got another copy of the entire C-file on January 26, 2010.

But that is offset a bit by the fact that the VA doctor treating him states his condition is severe, but notes in the medical record that it is mild. I think the doctor's letter will help, but what will really help is if he correctly documents your condition in the medical records. If the second C&P just copied and pasted notes your treating physician noted in your medical record, in order to deny the claim -- the treating physician has brought his own credibility into question if he is stating your condition is different than what he is documenting in your medical records. The letter can still help, but it sounds like he is contradicting his own treatment notes.

It might also be good to retain an attorney at this point. The attorney can make sure they have all the records and info they need, and can keep the claim going with the children, if necessary.

I really wish the VA could move like SSA. When my husband applied for SSA - he needed to provide them with a copy of his birth certificate... which he had to get from the court house. The worker told him that all she could say was HURRY, because once she tagged it as a TERI claim (terminal illness) it would move FAST. They have special procedures for TERI claims to move them quickly and keep them from getting lost in the shuffle. My husband had retro benefits directly deposited in his bank account three weeks after he filed his initial application for SSDI.

Berta, Is this something the Survivors Assistance department might be able to assist with? I can't remember their exact name, but you posted something about them once, and included their email. I had been trying to get a copy of the doctor's statement they used to deny my claim forever. I only had the first page,but not the second page. I kept requesting the second page and so I could have the entire opinion. They kept telling me I had to provide them with the doctor's name, etc. for them to find it. I didn't have the doctor's name, but how hard can it be to find the copy of the medical opinion they obtained after my husband's death? Anyway, I emailed the Survivors Assistance folks about it right after you posted their email to see if they could help me get a copy of the opinion. They emailed back that they couldn't really help with that, but that they would pass the information on to someone who could. I ended up getting another copy of the entire C-file in about a week. Of course, the VA admonished me that this was my SECOND copy, and that I would be charged if they had to send another one (totally disregarding the fact I had not asked for another copy of the C-file; I had just asked for a copy of the two page medical opinion they had not previously provided). BUT -- apparently the Survivor's Assistance folks lit a fire under somebody. So, if this is a survivor with a terminal illness, perhaps if they emailed the Survivor Assistance folks they could get someone to move on this. I don't know, but it is worth a try, because if adult children are involved, I don't think they will be entitled to anything due to the survivor except expenses spent on the last illness and burial.

Thanks for sharing that Jerrel.