free_spirit_etc

I agree. I would think if you are claiming you were treated during a certain time or at a certain place - and they have lost THAT part of your records - that the heightened benefit of the doubt SHOULD kick in. To say you can't prove something because the records that prove it have been lost - and it was the military and the VA's responsibility to KEEP the records that prove it - is just somehow wrong. It would seem like if THEY lost the records that would prove it DID occur - that they should have to prove it did NOT occur - as long as you have SOME kind of evidence that it DID. In the BVA case, the vet's own testimony that he experienced dizziness and headaches in service was ample evidence to meet the reasonable doubt that he had symptoms of hypertension that was later diagnosed. I was surprised they even took his doctor's word that the doctor had diagnosed hypertension in a certain time frame, when it didn't appear that there were any PRIVATE records to support that either (but then again, private doctors often purge their records after a certain amount of time) What probably helped was the C&P doctors also making the connection. Free

Well, I was thinking of trying to bury him in a way that pleased the family - and also dealing with his 37 year old adult daughter who suddenly decided two minutes after he died that she didn't get enough of what she "deserved" (everything he had) and I got more than I "deserved" (anything that "rightfully" belonged to her - which was everything he had - because putting me on the life insurance so I could keep our house meant that he loved me more than her, and proved he didn't love her just like he didn't love her when she was 16 and he didn't buy her the prom dress she wanted..yadayadayada) I was thrown for a REAL loop on that one because she we had got along FINE until he died - but spent half the night on the phone with her the night he died - with her "Why did my dad love YOU more than ME??" tantrums trying to reassure her that her father wanting to take care of me as his widow didn't mean he didn't love her. So I went from spending every ounce of energy I had trying to fight for his life, to trying to plan his funeral in a less than supportive environment - which went from me wanting to go to the funeral home and see my options and spend a little time making a decision - to being pressured into making a decision on the spot - (because his daughter didn't want to wait any longer (than 45 minutes) to get things "settled." So I went from thinking I would get a reasonable casket to getting the top of the line one his daughter thought he "deserved" (and reminded me I "should" pay for - because had he left HER his life insurance SHE would have paid for the nicest one) -and then they wanted to bury him at his home town, where his mother and brother were buried - which was important to his father (whose just buried his wife, my husband's mother five weeks before my husband died. I really like his father - and I can't even imagine burying your wife AND your son in a little over a month) But that added to the cost for transportation to the place of burial 1 and 1/2 away. AND they wanted a funeral up there too - so that was about $2500 more for the OTHER funeral home - but I still wanted a memorial service HERE - so OUR friends and MY family could come - and as he wasn't going to be buried in a vets cemetary - I had to pay for the vault, and as the cemetary up there has a high water table - it had to be one of the more expensive super duper waterproof vaults (or so I was told) which added about $1800. So they just gave me figure by figure for THIS end - and then they add $100 for this and $300 for that - which adds up - and I signed the paper, rather than trying to renegotiate on some of it to cut a little here and there - while his daughter was still snitting around and while I was still trying to figure out why she was so mad at me... And then my husband's father made the arrangements at the OTHER funeral home - at his home town - which were on TOP of that - so it just added up. My husband, of course, was not willing to make any arrangements for his funeral before he died. He didn't want to consider dying as that distinct of a possibility. His dad had started pushing me to ask him WHERE he wanted to be buried the last week of his life - but all my husband would say was - Tell him at Arlington Cemetary on top of President Kennedy - and as his dad didn't think it was funny - we dropped that. The morning of day of his death - when he told me he still had the will to fight, but didn't think he had the strength any more - and asked if he could "go" - I did ask if he wanted to be buried in his uniform or his "I'm mom's favorite' T-shirt B) - and he told me he wanted a military funeral - and the music he wanted - but that was as far as we wanted to take the planning as he prepared to die. So I guess what I was thinking was what many widows would be thinking if they had spent every drop of energy they had being with their dying husband day and night fighting for his life - being with their husband supporting him every step of the way as he died - and then finding herself having to arrange a funeral for him the following day with other family members who each had certain things they wanted - which all cost certain amounts of money - who wanted things "settled" RIGHT NOW - so probably not as CLEARLY as I might have been thinking if my husband hadn't just died and had I not been being pressured by other family members who ALSO were not thinking clearly. If I had it to do over - would I make SOME different decisons? - yes. But I still would have wanted a memorial service for our friends down here - and I still would have honored his father's wish to have him buried where his mother and brother are buried, and to have another funeral up there. I may have saved SOME money - but there still would have been some significant costs involved. So in answer to your question - that's what I was thinking. jmo Free

Thanks for your answers. It seems like it is part of the process that does work sometimes to grant benefits and does work sometimes to give you a clearer sense of the evidence you need to still obtain in order to succeed on your claim. Looking back though some of my husband's DRO Reviews - they were much more extensive than the SOC - they repeated some and added to. On the Lung Cancer Claim - it was just a repeat of the same thing. There is really no eviedence that they had looked at anything except for the Medical Opinion in which they had directed the examiner. But it does sound like they can be a very good thing. Free

I checked on the status of my the claim for burial benefits. Got an IRIS back that they had received it and are processing it. Got a call today to let me know they can't find it. I have to send another one. Poor guy - He couldn't get his teeth fixed (one time dental treatment they lost in the shuffle and never approved), couldn't get his C-file, couldn't get his discharge physical, couldn't get them to acknowledge what his actual claim for cancer was, couldn't get his Service Connection - and now he's still having a heck of a time getting the VA to chip in $600 toward his $10,000 burial. Free

Are the DRO reviews really worthwhile to many vets - or are the mostly designed to give the VA one more chance to obtain evidence that goes against the veteran's claim before it goes before the Board.

Wow! If they lose ALL your medical records, they have to provide you with heightened benefit of the doubt. The vet here was discharged from service in 1991. He said he had dizziness and headaches in service (no records). His physician said they diagnosed him with hypertension in 1992 or 1993. (No records of that either - even though it is post service diagnoses - a year or two post service). Now has end stage renal disease - Was granted SC for the renal disease and depression. http://www.va.gov/vetapp08/files2/0809646.txt So if they lose PART of your record (the part that shows the connection) - hope they lose ALL of your record. Free

Thanks folks! I ended up mailing it certified today. I like the getting EVERY page date stamped part - but didn't get over there. I WILL make sure I get REALLY important things date stamped ALWAYS!! With the go-round with Social Security - the Requests for Hearings that I have date stamped PROVE I turned them in on time, though they disappeared - I still had my date stamped copy. I use certified mail for evidence with SSA now - and put the certified mail receipt number on every page, keep my post office receipt with the weight of the package listed on it - and have a cover letter that lists all the evidence at once... But still - for something dreadfully important, with a deadline and all - I am still hestitant to use certified mail - even that they sign for, because it still doesn't prove exactly what you sent. You can prove you sent something,and a reasonable doubt would say that you sent what you said you sent - but still nervous that if push came to shove, I would have wished I got it date stamped... But for the evidence I sent today - I just sent it certified, with a cover letter - and cover letters for each part - and will send an IRIS and let them know I sent it - roughly what I sent - and the certified mail receipt number. Free

Hey! If I TAKE it - do I take TWO copies and get MINE stamped? Or do I take ONE copy - and make THEM make ME a copy? Free

Nope - but I live close to A regional Office - Just not MINE... So I will take SOME stuff over there tomorrow - and get it in ON TIME.. then keep submitting... Though I THINK the sooner I get to the BVA the BETTER - I think all submitting more stuff to the RO does is shows your hand so they can come up with opposing evidence - I would rather just let them play their game - get through that part - get on the waiting list for the BVA - and start submitting stuff to them - and waive my review by the RO on it.. It seems like the RO won't give you a decent doctor opinion - and if you give them YOURS - then they just find another one of THEIRs to refute it. Might be better to just take my denial as quickly as possible - and start working on getting before the BVA Free

Does anyone know when you have a deadline to submit evidence (i.e. one year) and have your claim readjudicated - do they go by the postmark date or the date received? I am up against the wire on mine - but have been WAITING - for THEM - to SEND ME - HIS DOCTOR REPORTS and Discharge Physical. Amazing - the TWO most important pieces of information are the dishcarge physical (which amazingly disappeared after he filed a claim for a post service diagnosis condtion) and the doctor opinion they received to use to deny the claim. NO discharge physical - doesn't exist - they aren't going to look for it. And received FIRST page of an UNDATED medical opinon - scribbled real quick on a Report of Contact FOrm - but says (over) at the bottom with no second page - and no signature. I asked for the rest of it - they said to send in what I have so they will know what to look for. BUT I asked for an extension of time - under the basis that as I just got a copy of SOME of the medical records needed to get the IMO a couple weeks before my deadline - then I needed MORE TIME. the IRIS kept responding to everything BUT the fact that I asked for an extension. Last I heard - they sent the string of emails on to someone else to check the regulations to DECIDE if they COULD give me MORE time - seeing as they took a YEAR to get the information to me and all. Of course, I won't hear if I DID get an extension until WELL PAST the deadline. So my idea is to just send what I have - let them readjudicate it. It will be another denial. And then get my IMO - and ask to have it readjudicated AGAIN - and remind them that I had asked for an extension. ANd if they deny it AGAIN - just wait for my hearing. Or I can send what I have - let them deny me again - file the NOD - and go straight to the BVA. Or I could work with just accepting their initial decision as their decision - NOD it - not bother to ask for the readjudication - at the one year point - and go for the BVA. BUT - if I do send evidence in - do they go by the postmark date or by the received date? Free

Veterans Affairs Opinion Office of General Counsel Precedent 01-92 Date: 1/17/1992 TEXT: Subj: Claim for Death Benefits QUESTION PRESENTED: Under 38 U.S.C. §§ 101( and 5105 (formerly §§ 3001(B) and 3005), should either an application for death benefits, filed by a veteran's surviving spouse on a VA Form 21-534, wherein the surviving spouse indicated that the veteran's death was not alleged to have resulted from military service, or an application for Social Security Administration (SSA) benefits on VA Form SSA-24, submitted simultaneously to the same VA regional office, be considered a claim for dependency and indemnity compensation (DIC)? COMMENTS: 1. The veteran died on August 13, 1979. In October 1979, the veteran's surviving spouse submitted a completed application for VA death benefits to the VA regional office on VA Form 21-534, Application for Dependency and Indemnity Compensation or Death Pension by Widow/er or Child. On the same day, the surviving spouse submitted a claim for SSA survivors benefits on VA Form SSA- 24, Application for Survivors Benefits, to the same VA regional office. On February 4, 1980, the surviving spouse also submitted an application to the SSA (Form SSA-5 F6) claiming insurance benefits under the Social Security Act. No information was included or attached to any of the forms indicating that the veteran's death was service connected. Rather, the surviving spouse checked "no" in block 11b of VA Form 21-534, which asks whether the claimant is alleging that the veteran's death was service connected. Improved-pension benefits were awarded effective August 1, 1979. 2. On January 2, 1987, the VA regional office received a letter from the surviving spouse requesting "reconsideration" of DIC entitlement. On February 3, 1987, VA informed the surviving spouse that "no determination has been made regarding your entitlement to dependency and indemnity compensation (DIC)," but that the request for reconsideration would be treated as a claim for that benefit. Subsequently, VA obtained the veteran's service medical records, and service connection of the veteran's death was established by the VA rating board on October 9, 1987. Consistent with the rating board's determination, the surviving spouse was granted DIC benefits effective January 1, 1987. The surviving spouse has appealed to the Board of Veterans' Appeals seeking an earlier effective date for DIC benefits. 3. Turning first to the statute that governs the filing of claims for veterans' benefits, 38 U.S.C. § 5101(B)(1) (formerly § 3001(B)(1)) provides in pertinent part that "a claim by a surviving spouse ... for death pension shall be considered to be a claim for death compensation (or dependency and indemnity compensation)." Implementing regulations at 38 C.F.R. § 3.152(B)(1) contain a virtually identical statement. The above-referenced statute and regulation suggest that the surviving spouse's initial application for death benefits, filed on VA Form 21-534 in October of 1979, must be considered a claim for DIC benefits. However, the surviving spouse's statement on the form that service connection of cause of death was not being alleged could be interpreted as evidencing an intention to claim only death pension. 4. In any event, however, simultaneous submission of a completed VA Form SSA-24 leads us to the conclusion that the surviving spouse did file a claim for DIC in October 1979. Section 5105(a) of title 38, United States Code, directs the Secretary of Veterans Affairs and the Secretary of Health and Human Services (HHS) to jointly prescribe forms for the use of survivors of members and former members of the uniformed services in claiming benefits under chapter 13 of title 38 and title II of the Social Security Act. That section directs the development of forms that "request information sufficient to constitute an application for benefits under both chapter 13 of title 38 and title II of the Social Security Act." Under 38 U.S.C. § 5105(B), the filing of such a form with either the Secretary of Veterans Affairs or the Secretary of HHS shall be deemed an application for benefits under both chapter 13 of title 38 and title II of the Social Security Act. See also 38 C.F.R. § 3.153 (application on jointly prescribed form, filed with SSA, will be considered a claim for death benefits). Section 5105 had its origin in the Servicemen's and Veterans' Survivor Benefits Act, Pub. L. No. 881, s 601, 70 Stat. 857, 886 (1956). Although the purpose of the provision was to obviate the need for a claimant "to file more than one basic application for benefits" under the Social Security and DIC programs, S. Rep. No. 2380, 84th Cong., 2d Sess., reprinted in 1956 U.S. Code Cong. & Admin. News 3976, 4000, the provision is for the convenience of the claimant and does not preclude the filing of separate Social Security and DIC claims. See also Akles v. Derwinski, 1 Guardian Federal Savings & Loan Association, 1 Vet.App. 118, 121 (1991) (claimants not required to enumerate statutory sections under which benefits are claimed). The surviving spouse's application for Social Security survivors' benefits on VA Form SSA-24 was a claim for benefits under title II of the Social Security Act on a jointly prescribed form and as such constituted a claim for DIC within the terms of 38 U.S.C. § 5105(B) regardless of the status of the claim on VA Form 21-534 for VA death benefits. FN1 5. Given that the surviving spouse may be considered to have filed a claim for DIC in October 1979, the question is raised whether that claim was resolved prior to receipt of the surviving spouse's request for reconsideration of DIC ntitlement. The answer to this question bears directly on the effective date of the surviving spouse's DIC. Generally, once a claim has been denied, and either the Board of Veterans' Appeals has rendered a final decision or the time for an appeal has expired, if the claim is reopened, the effective date of benefits is the date of the reopened claim. 38 U.S.C. § 5110(a) (formerly s 3010(a)); 38 C.F.R. § 3.400(q)(1)(ii). 6. We have located no contemporaneous evidence in the claim file establishing that the surviving spouse's initial DIC claim was ever finally denied. Section 3.160(d) of title 38, Code of Federal Regulations, provides that a finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction and with respect to which action has become final by the expiration of one year from the date of notice of allowance or disallowance or by denial on appellate review. Under former 38 C.F.R. § 3.103(e) (currently s 3.103(f)), dealing with procedural due process, a claimant was and is entitled to notice in writing of a decision affecting the payment of benefits. This notification advises the claimant of appellate rights and provides the claimant the opportunity to pursue an appeal by filing a notice of disagreement. 7. VA's February 3, 1987, letter responding to the request for reconsideration informed the surviving spouse that no determination had been made with respect to DIC entitlement. In a letter dated September 9, 1980, VA did inform the veteran's child that the child's claim for educational benefits had been denied "because the veteran's death was not the result of a service- connected disease or injury." However, this determination pertained to the claim of the child, not the surviving spouse, and, further, did not deal with the question of entitlement to DIC. We also note that the DIC claim cannot be considered to have been abandoned under 38 C.F.R. § 3.158(a), since that regulation applies only where a claimant has failed to respond to a VA request for evidence pertaining to a claim. See Morris v. Derwinski, 1 Vet. App. 250, 264 (1991). 8. The July 24, 1980, letter notifying the surviving spouse of the pension award contained the notation that a VA Form 21-6895 (Death Pension Original Award) was enclosed with the award letter. We have been unable to locate in the claim file a copy of the VA Form 21-6895 that was sent to the surviving spouse. Among the eleven blocks which may be checked on the August 1979 version of the form is one (block 8) indicating the recipient is not entitled to service-connected death benefits. (Compare the Adjudication Officer's reference to block 5 of the form in his March 20, 1989, memorandum to the Senior Adjudicator.) The VA Form 21-6798d, Death Award, completed July 8, 1980, contained the notation in block 16, Remarks, "NSC DEATH NO INDICATION OF S/C DEATH." However, the "Special Instructions" on the back of this form relative to notification of the claimant contain only apparent references to blocks 5 and 11 of the VA Form 21-6895 and contain no reference to service connected benefits. (Block 5 of the August 1979 version of VA Form 21-6895 refers to Social Security benefits.) Although the original statement of the case contained no reference to the VA Form 21-6895, the supplemental statements of the case issued on May 25, 1990, and August 7, 1990, indicated that this form had been used to notify the surviving spouse that service connected benefits had been denied. The surviving spouse took issue with this statement in a letter to the Adjudication Officer dated June 4, 1990. (See also VA's February 3, 1987, letter stating that no determination had been made with respect to DIC entitlement.) We leave to the Board resolution of the factual issue of whether the surviving spouse was notified of disallowance of service- connected benefits prior to the filing of the request for reconsideration. 9. VA Manual 21-1, para. 34.08 a., lists situations where a claim for service-connected benefits may be disallowed without a rating decision. Among these is the situation where " s ervice connection was not specifically claimed and there is no reasonable probability that the cause ... of death after separation from service was related to service." VA Manual M21-1, para. a.(3). This exception may be applied where complete service records are not available in the claim folder and are not requested "because there is no reasonable possibility that death is related to service." VA Manual M21-1, para. a. (3)©. Even if, in light of the notation in block 11b of the VA Form 21-534, it could be concluded that there was no reasonable possibility of service- connected death, the manual provision in question merely provides that a claim may be disallowed without issuance of a rating decision, not that it may be denied without notice to the claimant. In fact, paragraph 34.08 e. of the Manual specifically refers to appropriate notification of the disallowance. (The terms of VA Manual M21-1, para. 34.09, as in effect in 1980, at the time of the death-pension award, see M21-1, change 168, June 20, 1977, were essentially the same as those of current paragraph 34.08.) In any event, denial without notification would have been in violation of controlling regulations, referenced above, governing procedural protections, and, to the extent the above-referenced notation in block 16 of the VA Form 21-6798d purports to represent such a denial, it is ineffective. 10. Unless the Board concludes that the surviving spouse was previously notified of the denial of the October 1979 claim for DIC, that claim must be considered to have been a pending claim, i.e., an application not finally adjudicated, under 38 C.F.R.§ 3.160© at the time of VA's 1987 award of DIC benefits. Accordingly, 38 U.S.C. § 5110(d)(1) (formerly s 3010(d)(1)) would be for consideration with regard to establishment of an effective date for the award. HELD: The VA Form SSA-24, Application for Survivors Benefits under the Social Security Act, filed by the surviving spouse of a veteran at a VA regional office, constitutes a claim for dependency and indemnity compensation (DIC) despite the fact that the claimant indicated on a simultaneously filed VA Form 21-534, Application for Dependency and Indemnity Compensation or Death Pension by a Widow/er or Child, that service connection of the veteran's death was not being alleged. Unless it is determined that this claim was finally denied prior to VA's later award of DIC benefits, it must be considered to have been pending on that date for purposes of determination of the effective date of DIC benefits. 1 We note that VA has long assumed an affirmative duty under 38 C.F.R. § 3.103(a), now codified at 38 U.S.C. s 5107(a) (formerly § 3007(a)), to assist a claimant in developing the facts pertinent to a claim. See, e.g., Akles, 1 Vet. App. at 121. However, under section 5107(a), this affirmative duty does not pertain unless the claimant has first "submitted evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." Murphy v. Derwinski, 1 Vet App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A "well-grounded claim" has been defined by COVA as "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of s 5107 (a) ." EF v. Derwinski, 1 Vet. App. 324, 325 (1991), quoting from Murphy, 1 Vet. App. at 81-82. In Sussex v. Derwinski, 1 Vet. App. 526, 529-30 (1991), COVA found a DIC claim well grounded where the claimant submitted the medical opinions of two treating physicians that the veteran's disease may have had its origin in service. In that the only evidence pertaining to service connection in the file associated with the surviving spouse's claims filed in October 1979 was the surviving spouse's own statement that the veteran's death was not alleged to be due to service, we would question whether a well-grounded claim for DIC had been submitted requiring VA to assist in factual development. VETERANS ADMINISTRATION GENERAL COUNSEL Vet. Aff. Op. Gen. Couns. Prec. 1-92

Yep. After waiting 8 months for Social Security to "have time" to make copies of 105 pages of medical records from Ryan's file - they miraculously MADE time when I put a CC to the Senator on the bottom of the letter. They had it handled before I even got around to sending the Senator a copy. Free

Yes. One Congressman has an office in our town. I hadn't thought of going there because I called the Social Security representative at his office when I first started having problems last year. When I started trying to explain my situation - she explained that my case was complicated - and acted like I was just some idiot that didn't understand what was going on. Maybe the situation would be different now that I have more evidence of exactly what they are doing - as long as I can communicate it clearly. I'm not sure. The way she talked to me before, I just figured that she would call the local office and they would explain it all away. I guess I can call her and try it again. I am also willing to drive farther to meet with someone from Senator Obama's Office in Springfield - if they would be more helpful. Free

Who responds - the same employee who has been handling your claim - or someone else, especially since I have asked for a supervior to review my claim. Free

Does it matter if their website directs you to write for constituent services, instead of call? Free

Thanks. I was actually asking for the Social Security claim, but they should have a rep for that also. I didn't even think about going in person. But that is a great idea - because if the rep is getting what I am saying, then they might be able to help. If not, then I can move on and find one that will. Free

So... many things I am reading say when writing a Congressman or Senator to keep it brief, as in one page. I know that you have to be concise, but my concern is that to just barely make your point makes it very easy for those about whom you are complaining to just explain away their evil deeds. Is it appropriate to send a one or two page letter, that addresses the MAJOR points, along with a longer attachment with more information on the specifics? Free

Yep. When my husband died - all it took was a phone call reporting his death to stop the payment. No evidence of death is needed to stop the payment. I guess if someone reports you dead - they will stop your payment - and then you have to PROVE you are alive to get it back. The VA stopped my husband's payments on a phone call alone. But even though I sent in the wedding license and the death certificate, which lists me as his widow - they told me there was NO evidence in the file to show I was his widow to stop them from reclaiming the funds. Free

Someone else might have another idea - but to me it does look like the BVA is the one that dropped the ball on it. And I don't actually think it was an attempt to rob you. But the anxiety claim became 200% of the whole focus...because you were fighting for your life on that one - and the RO was fighting equally as hard to deny you. But I think they dropped the ball on it on their initial remand. But as it is not an inferred claim, but one you explicitly stated - and the evidence in obvious and it was intertwined with all the anxiety evidence - I think they would stand a good chance of revising their decision. HOWEVER, DID you claim for SC for headaches on your initial claim? I am operating under the idea that you did. But upon looking at the NOD you sent - you are talking about ADDING headaches. If you did NOT claim for headaches initially, and the RO didn't DENY headaches - and your NOD said, I am appealing anxiety, and dropping this that and the other and ADDING HEADACHES to my claim - THEN I would say it is more an unadjudicated claim - As if you ADDED a claim for headaches on your NOD - and the RO didn't deny you - it COULD be at that level...the RO. If you ADDED headaches in March 2004, I fail to see how they could have DENIED you in July 2004. They would not have even had time to have notified you they received your claim - informed you of the evidence needed to establish SC for headaches - and given you the one-year to submit evidence. They can't just say - we deny you that too without going through the proper procedures. It will be interesting to see if they can come up with the July 2004 denial. And if you did actually ADD headaches in March 2004 - you might also ask for a copy of the VCAA letter you received for your headache claim. I agree that the TDIU is the most important now - getting you to the 100% that you deserve. And the headaches is an error - it is just a matter of finding out where the error occured and how to rectify it. My husband claimed for headaches as an undiagnosed illness. The SOC said we cannot grant SC for headaches as they have been diagnosed as headaches. LATER - when we got his medical records from the VA hospital - there it was clear as day - a C&P that was fully favorable for a grant of SC for headaches - Not as an undiagnosed illness - but because the VA doctor said the headaches were actually two TYPES of headaches with two disctinct causes: 1. The headaches that started in the forehead were caused by chronic sinutitis which started in service. My husband didn't claim for sinutitis - but the doctor specifically stated that his sinutitis was clearly diagnosed in service - as he was treated for it repeatedly - and his x-rays in service showed changes in the ethmoid sinuses - and he was DIAGNOSED with chronic sinutitis in service. The doctor also did another x-ray - and confirmed the diagnoses. 2. The headaches that started in the back were caused by the damage to his cervical disks in his neck. The doctor took xrays and drew arrows to the exact region of the neck that was causing the headaches. Of course, when my husband CLAIMED cervical strain several years earlier - the VA admitted he was injured, but said there was no CURRENT disability. They did find a SLIGHT change in that region, but said it was not disabling. Therefore they denied him SC, rather than giving him zero percent. But the area the C&P doctor pointed out was the SAME area...the area they denied SC for because it wasn't disabling. But - the RO merely said they couldn't grant SC for headaches, in that they were a diagnosed illness - diagnosed as headaches - totally ignoring that the C&P examiner had given two distinct service connected causes for them. Free

The BVA might have dropped the ball on it then, as I don't recall they mentioned it in the remand. If the RO denied headaches - and you filed a NOD and a Form-9 on them, then the BVA should have had jurisdication - I think it just got lost... Are you still within the time-frame to appeal the BVA decision? Or can you ask THEM to review their decision, as they failed to adjudicate the headache claim that you had timely appealed and should have been before them? It is quite possible if they are the ones that dropped the ball on it - they can open the decision back up and grant it. Free

I have considered THAT before - and maybe should consider it again. The problem I found with trying to get a Social Security attorney was that attorneys generally specialize in Social Security or don't handle it. The ones that DO handle it - and there are MANY - handle disability claims. There isn't a big market for handling survivor claims. Survivors don't usually get denied. Or if they do - it is based on the law and regulations. There isn't as much play room (as a general rule) in survivors claims - it is more a factual thing. You are either their child or you are not. You are either taking care of your child or you are not. Not much room for opinion. I think in my case, there is just a lot of posterier covering going on. Anyway, back to the attorney thing. I called several WAY back - but they didn't even seem to know how to discuss survivor benefits. They had a one size fits all intake form asking all about my disabilites (which I don't have). Perhaps I need to search again.. I have hoped to avoid getting an attorney on my son's claim - as his eligibility is actually pretty clear cut. In fact, they KNOW he is eligible - which is why they have danced all around and not addressed the fact that he is my husband's legally adopted child. I have realized I might need to get one for my claim. I just got frustrated with people I told I was not disabled asking me all kinds of questions about my disabilities. Wasn't quite sure how much they could help - Free

The way it is adding up - it does look like you each get one half of his added to what you got before. But it is most likely a recalculated PIA for him - and then you each get your share. Sounds like a good idea to get the SSA disability started. As once you file, those quarters without earnings won't keep ticking against you. And again, they should calculate your benefits each possible way, once you are declared disbled by them, and let you choose which benefit you want to receive. Free

I would ask them to send you a copy. It probably does not exist. It doesn't make sense that they would deny your claim March 23, accept your NOD (as they admitted they did), send you a Supplemental Statement of Case on July 12 (denying the headaches) and then send you ANOTHER letter the NEXT day telling you that they received your NOD on the March 23 decision. My bet is: They denied on March 23 You sent a NOD - and a letter to withdraw some of the other claims. They sent you the letter July 13 acknowledging both the NOD and the withdraw of the other claims. They NEVER sent any SOC or SSOC (actually, as you had already filed a NOD - it would have been a SSOC)as they had no reason to pull the headache claim out and decide that independently of the anxiety claim - They played their close this -reopen that, this isn't a final decision crap until even THEY didn't know what was going on. They lost the headache claim in the shuffle. You might ask them to send you a COPY of the denial they are referring to. But here is another question - if THEY didn't re-decide your headache claim, and thus, the BVA did not address it - should you appeal the BVA decision - in that it did not address your headache claim? Are you still within the time frame for this? (Though you should be able to show good cause for late filing. You can also write and ask for an EXTENSION of time to file an appeal - in that you are trying to findout whether the headache claim is still open, or if they get to dismiss it merely by failing to address it, despite the OBVIOUS evidence in the record If they can't come up with a copy of the letter - and proof that they sent it to you - You might want to ask the RO & / or BVA to call a cue on themselves for failing to adjudicate the OBVIOUS claim for SC for headaches. Free

Oh - I DO now... I didn't get the April 4 appeal date stamped, but I have evidence they received it. The June 5 appeal they acknowlege receiving - and it WAS timely - but as they are calling the May 27 decision a supplemental notice (though it was CLEARLY an initial decision)- they can PRETEND it was not timley. I got the August 8 decision DATE STAMPED by the local office. The August 8 appeal specifically addressed Mr. Ssss decision to NOT file my April 4 appeal - so IT never got filed either (But I DO have a date stamped copy). I took our December appeals to ANOTHER local office and got THEM date stamped. I imagine they sent it to MY local office - as IT didn't get filed either. So I have all the EVIDENCE of my appeals being timely. That is the "evilness" of their Oct. decision. They knew if they dismissed my appeals as being untimley - the decision is final and not open to appeal. So instead of my info being sent on for higher level review - they can keep getting it right at THEIR desk - as I lost the "right" to appeal - so the only decision that can be made is whether to "reopen" - which is made by them. Finding my way around the block - Congressional inquiry - and filing a misinformation claim, based on if they say I lost all right to appeal in April - and the local office didn't allow me to file for Mother's Benefits until May - then Social Security employees prevented me from filing my application until the deadline they now maintain the decision had to be appealed is past. Free

I am also not clear on the remark that you are getting one-half of your husband's benefits and your child is getting one-half of them. One-half is usually the amount that can be paid in LIFE cases. In death cases - the amount goes up to three-fourths. Even if this is reduced somewhat based on the Family Maximum, your daughter and you combined should be drawing MORE than 100% of the benefits your husband drew. The family maximum ranges from 150% to 180%. Were you drawing benefits before your husband's death? They should have recalculated for survivors benefits after he died. And Pete is right - if disabled - (and over 50) you could draw 100% of what your husband's benefits were. Or 100% of your own. Whichever is higher, or which ever works better for your family situation. Social Security should figure out all the possibilities for you - and let you choose which way to get paid. In a round about way - you do KIND of draw both if you draw on your own - as an offset against what you are drawing off him. Say your husband's benefit was 800 a month - and the family maximum was 1200 a month. On your husband's death, both your daughter and you could receive 600 per month each - which is 3/4 of HIS PIA (Primary Insurance Amount) - and falls within the family maximum. However, if based on disability - you could start drawing 100% of his benefit - your daughter benefit would be reduced, because 800 and 600 would put you above the family maximum. BUT if you also have work credits - where you could earn, say 500 a month on your own record - It should be calculated where you were actually getting 500 from your OWN benefits, and 300 from your husband's (to take you up to the maximum HE was paid). Since part of your 800 would be 500 of YOUR own - and you were only using 300 of HIS - Your daughter should be able to receive her FULL 3/4 - or 600 a month - as the 300 (You) and 600 (her) you are drawing from HIS benefits is under the family maximum. If you are under 50 - I don't think you qualify for 100 percent of his benefit yet, even if disabled. But you could still establish disability - and draw the greater of 3/4 of HIS or 100% of YOURS - (His being contingent on having a child in care.) Or again, a combination of the two (NOT FULL pay of both - but drawing FROM both records, as in the situation above) with them offsetting each other. But once you turn 50 - then the eligibility to 100% of HIS would kick in. In answer to your question - if you draw your own benefits, will your daughter get the half of your husband's benefits that YOU are now drawing? No. A child does not receive 100%. Only the spouse can do that. But the child can receive 3/4 of his benefit. But again, you SHOULD each be drawing MORE than one-half NOW. And the Social Security office should figure out the different amounts that would be paid under different means of entitlement - based on your disability - and let you draw the BEST one. Free