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namvet6567
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Posts posted by namvet6567
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The buddy statement wasn't a buddy statement but was in fact additional pages to her Statement in Support of Claim, and signed by her. She meets every requirement except for the separation from him. And the VA is required to accept her statements unless there is contrary evidence. We never resided together or cohabitated. My apartment was separate from her. I think I may have to do an affidavit for her but the M21-1 statement, plus the CUE and failure to apply 38 CFR 4,6(think that's the number Berta said).
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Anyone know if SSD has a rule like CUE??? I lost 3yrs of SSD in my claim because the lawyer I hired used a new law school graduate to do the claim. I eventually won but it took 10yrs and the judge only awarded 7yrs on appeal or reconsideration, even tho, I won my VA claim after that. Thx
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Thanks to everyone, Berta, Todd, John. Everything here should help. Just need to find the statement where the VA is basically required to accept her version, unless they have other evidence. I'm sure I've read it here, in M21-1 but sometimes have trouble finding stuff. This getting old stuff isn't good for the elderly(jmo). lol
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Berta, should she include the statement in M21-1(about I believe 'VA having to believe the spouses statement as being truthful in the absent in contrary evidence'?? And/or the "buddy statement" not in-fact being a buddy statement but being a sworn affidavit/her statement instead of the "Statement in Support of Claim" form??
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Berta, that death cert link and explanation should solve that part of the problem.
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She was listed and he was paid w/her as a dependent the whole time. I don't see any difficulty as a DIC claim, only in the way the person is processing the claim. I think you may be correct, as a CUE claim if it will expedite the process. I may be confusing CUE w/extra schedular requires. Just getting old. She has been a dependent since they were married, in 2000, received Chap 35, prior to separation and ChampVA, continued as she continued to be his dependent/spouse, tho separated.
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The ChampVA has been continued thru the whole time since original 100% P&T award, even during the separation. I'm expecting they will cut off any day now. I believe the VA received a copy from either the nursing home or SSA, when they notified the VA of his death.
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The 17 pages refers to all the appeal stuff w/forms. His first MOS was 76l10 unit supply specialist and second 95B10 military police.
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Berta, no need to explain the pension thing, as I already figured that out when I read it. The rate was correct, as I checked it. If I remember correctly 100% + married w/spouse(no children) and SMS "s" I believe. He collected for married to her up thru the date of his death. The VA has technically confirmed she is his widow by awarding her his final check(if not his widow final check would be disallowed). If she wins I know they award Chap 35 to widows, does that mean she could get more education paid for, even tho she'd previously used it as spouse. I seem to recall reading a successful case on that some yrs back. She hasn't received a penny from him since 12/2014, which was less than $200 a month, then, and had to get medicaid and food stamps, to survive. They never divorced. Thanks!
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I should've added that she needs the ChampVA as she has high medical expenses due to her disabilities. So far she still has ChampVA. Also he was a truck driver in his first enlistment(3yrs 2months), MP second enlistment also 3yrs 2 months. The death cert she was able to get had no cause of death, just that he died, when and where. That's all she could get from FL because she was not listed as the NOK on it. There is no doubt she will win, eventually. Just need to expedite if possible. I'd love a CUE Berta, if you have time. And to Todd, Thanks ever so much!! As you can see having problems figuring how to post. I don't do change well which is why I left back in 2015 after 15 or more yrs.
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1 hour ago, Berta said:
An application forDIC is always also an application for a VA Pension.
My first thought was why didnt the VA consider her for a Pension, but then again perhaps that part of the DIC form was not filled out- then again, based on what the decision says, they apparently did not need to go forwrard at all, regarding the pension, due to requesting more evidence.
I divided the $3,649 by 9 months in 2020 nd the 6 mmonths in 2021 and got a monthly amount of $243.I might be off by a month.I didnt figure in the Cola fr 2021
20 % SC is currently
20% Disability $284.93 with no dependents.
Or perhaps this is a Pension amount.
A Pension is based on Total disability and death would make that `100% P & T.
The 100% P & T does not jive with the SC rates.
However this is a valid CUE.
It is a violation of 38 CFR 4.6.
"38 CFR § 4.6 - Evaluation of evidence.
§ 4.6 Evaluation of evidence.The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."
https://www.law.cornell.edu/cfr/text/38/4.6
The VA failed to read the Divorce Decree as it pertains to you and not the veteran who is deceased.
They would need to have the Marriage license, for your ex wife's marriage to this veteran, I cannot tell if the evidence they listed is Marraige license regaring this decased veteran.and also the forms that involve the spouse's income must be filled out and sent to the VA.
The June 22, 2021 letter they reference must be complied with,and certainly any information- if he did have a service connected disability-exactly how that caused orcontributed to his death.
I do not see the Death Certificate listed at all as evidence.
Can you tell us what the Medical examiner stated as # 1 Primary cause of death and also as any secondary contributing causes of death?
Also was an autopsy done?
Where did he serve and when and what was his MOS?
The Buddy Statement- did that comply with a Buddy Statement as explained in an article I did , available here under a search?
It would help to get ahold of his C file and all inservice SMRs and his military Personnel file.The VARO has his C file and NARA holds Military records, but due to Covid, this all can take quite some time.
A valid CUE is within the decision and I can write one for you- maybe tomorrow-(the Century link outage is again affecting many of us who use the internet, slowing everything down)
It is possible that her SSA income would be more than a war time pension, but it is worth a try on that ,if she cannot attain DIC.
Herein lies some of the problems. Ok, his final check @ 100%+, & P&T, was the amount paid ($3649 or whatever it states. He was rated 100% for ptsd, plus he had bypass(SC), a couple of stents, diabetes, and according to a lady she spoke to a VA, many more SC disabilities, she couldn't tell her about, even tho she IS listed as NOK.
She can't find out what the cause of death was. Because the nursing home had his brother as NOK, and he stated there was no marriage. This may have been her husband's final action of revenge toward her for refusing to reconcile. She had ChampVA, 4yrs of Chap 35 and resided w/him for 9+yrs. He was being paid as being married(to her). She has no idea what he died of. May have been covid19.
The buddy statement must be the additional pages of her statement in support of claim, cuz there was no buddy statement. She was able to get a dd214. He had 2 dd214. 2 enlistment terms. I believe second was discharged w/bad paper but first qualified him for VA bennies. If I recall correctly he was an MP.
I think she gets about $1280+/- from SSD, after medicare is deducted. DIC would add about $1600 monthly.
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1 minute ago, namvet6567 said:
There should be 3 pages and I think I reversed pages 2&3. Pages 4&5 are the same as one (I think)
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17 hours ago, namvet6567 said:
Trying to help a spouse who was separated from her 100% P&T husband, for 10.5yrs, at time of his death. Never divorced as reconciliation was a consideration. They paid her his final check but then denied her DIC. He died in early 2020 at a VA contracted nursing home in FL. VA never notified her of his death. Also tried to look up m21-1 but found the VA may have discontinued it?????? Thx
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10 minutes ago, john999 said:
The ten year rule is really an injustice to widows. Why does VA make it so hard? I guess they want to avoid fraud where young girl marries an old vet just before he dies to get DIC. They punish all vets to save a buck.
Hi John, good to see you're still around. That's why the VA requires that marriages be at least a year and cohabitation. I believe there are some that would try to abuse this. jmo
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3 minutes ago, Berta said:
VA Fast Letter on extensions of responses to VA due to COVID:
It is VA Policy Letter 20-02.
If this vet was eligible for a VA wartime pension, then it is possible the VA would award her a Wartime pension- butwhen the VA sawarded me a Wartime Pension, prior to properly awarding me 1151 and SC DIC, when I got the award amount, Ith VA had deducted SSA benefits I received for my daughter due to her dad's death.
It was a very minimal amount of cash,with no additional $ benefit to me.
It took them so long to award it that I reeived 1151 DIC within a few monts of the pension award and that changed everything.
In 2010 I succeeded in AO IHD direct service death and also AO DMII direct service cnnected death and that too changed everything.
I dont know if this widow is actually divorced or not----
How could VA have a divorse decree if they were deparated but never divorced?
I was her first husband. We were married just under 15yrs(6/85-5/20). We divorced in 2000. So the divorce mentioned has nothing to do w/the claim(sorry, I should have edited that but wanted it to be complete). She was my tenant and we have been friends(just friends, no benefits except rent received) since she left her husband, in 2009.
Only looking for DIC info as with her SSD and his portion , she probably receives too much for pension. The VA is trying to rebut the cohabitation requirement/cause for separation and the requirement that the VA accept her statements in lieu of other evidence, of which there is none except for the death cert statement that he wasn't married. Hoping not to have to hire a FL atty. The VA files state she is his next of kin(confirmed on the phonethru the VA phone number) but the VA adjudicator is ignoring that. Thanks for everything!
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Here's the what they said/did. I will post the actual decision once I figure out how to. She is not listed on the death certificate because his brother (whom he had been estranged from for decades was the informant and stated he was not married.) Death happened in FL and FL won't allow her to change it w/o going to court. SSA has awarded her as his widow, as she has been disabled since early 90's.
Here's the VA's statement:
"We made a decision on your claim for death benefits received June 17, 2021. This letter tells you about your entitlement amount, payment start date, what we decided, how we made our decision, and the evidence used to decide your claim. We have also included information about additional benefits, what to do if you disagree with our decision, and who to contact if you have questions or need assistance. Your Award Amount and Payment Start Date Your monthly entitlement amount is shown below:
Monthly Entitlement Amount Payment Start Date Reason For Change $3,649.83 Feb 1, 2020 Eligible for Veteran's Rate Month of Death 0.00 Mar 1, 2020 Benefit Terminated Your payment for February is the rate we would have paid the deceased veteran.
What We Decided We denied your claim for dependency and indemnity compensation (DIC), death pension, and accrued benefits For the elements not met that are required to grant benefits, please see the denial reasons below.
How Did We Make Our Decision? On June 22, 2021, we wrote and asked you to send us additional information. For your convenience, we have attached a copy of that letter. Because we have not received it, we must deny your claim.
When and Where Do You Send the Information or Evidence? Please send us the information we asked for as soon as you can. If you are having any difficulty getting this evidence, call us. We may be able to help you. If we get the evidence within one year of the date of this letter, we can continue processing your claim. Information received after one year of the date of this letter, must be considered a new claim. That means any benefits you may be eligible for can't start before the date we receive your new claim IMPORTANT It is to your advantage to send this information as soon as you can.
What Evidence We Received x Death Certificate, received May 05, 2021 x Marriage Certificate, received May 05, 2021 x VA Form 21-534EZ, Application for DIC, Death Pension, and/or Accrued Benefits by a Surviving Spouse or Child, received June 17, 2021 x VA Form 21-4138, Statement in Support of Claim, received June 17, 2021 x Divorce Decree, received June 17, 2021 x Buddy statement, received June 17, 2021
Favorable Findings: Active Duty Service The Veteran had the minimum active duty requirements in order to qualify for pension. Wartime Service The Veteran had wartime service. Character of Service The Veteran’s character of service meets the requirements to qualify for pension.
What You Should Do If You Disagree With Our Decision If you do not agree with this decision, you have one year from the date of this letter to select a review option to preserve your earliest effective benefit date. The review options and their proper applications are as follows, for a(n): x Supplemental Claim, complete VA Form 20-0995, Decision Review Request: Supplemental Claim. x Higher-Level Review, complete VA Form 20-0996, Decision Review Request: HigherLevel Review. x Appeal to the Board, complete VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). Please see the enclosed VA Form 20-0998, Your Rights To Seek Further Review Of Our Decision. It explains your options for an additional review. You may obtain any of the required application by down loading them from www.va.gov/vaforms/ or by contacting us. You can also learn more about the disagreement process at www.va.gov/decision-reviews. If you would like to obtain or access evidence used in making this decision, please contact us as noted below. Some evidence may be obtained by signing in at www.va.gov. If You Have Questions or Need Assistance If you have any questions, you may contact us by telephone, e-mail, or letter. If you Here is what to do. Telephone Call us at 1-800-827-1000. If you use a Telecommunications Device for the Deaf (TDD), the Federal number is 711. Use the Internet Send electronic inquiries through the Internet at https://iris.custhelp.va.gov Write Put your full name and VA file number on the letter. Please send all correspondence to the address in the enclosed “Where to Send Your Written Correspondence”. In all cases, be sure to refer to your VA file number. If you are looking for general information about benefits and eligibility, you should visit our website at https://www.va.gov, or search the Frequently Asked Questions (FAQs) at https://iris.va.gov. We have no record of you appointing a service organization or representative to assist you with your claim. You can contact us for a listing of the recognized veterans' service organizations and/or representatives. Veterans' service organizations, which are recognized or approved to provide services to the veteran community, can also help you with any questions.
Sincerely yours,
RO Director VA Regional"
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18 minutes ago, Berta said:
I believe this would be found in M21-1MR , Subpart iii, Section B -but my reference is dated 2015 from:
https://www.archangelinitiativeinc.com/m21-1-adjudication-manual
I think the only change was when the VA stated widows/widowers could remarry after ago 57 and retain their DIC VA benefits.(2015)
I will check further because I am sure we have a more recent version of M21-1MR here-
and I will check the 2020-2021 VBM from NVLSP to see what they say.
The age 57 remarry regulations are explained here:
"Regarding Dependency and Indemnity Compensation (DIC), a remarried surviving spouse whose subsequent marriage is annulled or declared void can reestablish eligibility as a surviving spouse. However, effective September 30, 1998, the law was changed to allow a surviving spouse to reestablish DIC eligibility after termination of remarriage. Therefore, after September 30, 1998, eligibility for DIC is established in any case in which the remarriage of the surviving spouse is terminated by death, divorce, or annulment. Also, remarriage of a surviving spouse after the age of 57 does not preclude continued payment of DIC.
Regarding Death (Survivor’s) Pension benefits, the law generally requires a surviving spouse’s entitlement to be terminated if the surviving spouse remarries, regardless of age, even if that remarriage is terminated by death or divorce. However, VA regulations establish limited exceptions that generally allow entitlement to Death Pension to be reestablished if the marriage was:
• Annulled or declared void.
• Terminated by death or divorce on or after January 1, 1971, and before November 1, 1990."https://www.va.gov/survivors/faqs.asp
Thanks, Berta!!! Good to hear from you and especially your expertise! I'll post the denial once I figure out how to scan it etc.. I have her permission.
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9 hours ago, toddt said:
Thanks toddt. In particular I'm looking for "Manual M21=1, III.iii.5.E.6.a" referred to by The Vererans Benefits Manual (2018-2019). Just need to point out how the claim should be processed and not be jerked around by some VA employee trying to clear her/his desk. jmo Sign me "Flip"
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Trying to help a spouse who was separated from her 100% P&T husband, for 10.5yrs, at time of his death. Never divorced as reconciliation was a consideration. They paid her his final check but then denied her DIC. He died in early 2020 at a VA contracted nursing home in FL. VA never notified her of his death. Also tried to look up m21-1 but found the VA may have discontinued it?????? Thx
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A friend and vet PTSD group member, Gary Demag, died when he froze to death, after going outside the VA White River Junction, VT, Medical Center, some 20+ years ago. He went outside thru a fire exit, to smoke a cigarette, and couldn't get back in cuz the door locked automatically. He was an inpatient. Never heard if anyone was charged. Disgusting. It's the reason I don't use the VA hospital for other than routine outpatient visits.
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I'm going to disagree on whether the PTSD stressor must be proven. I believe it only needs to be probable. I've helped a few vets and we only needed to prove it was probable that they could have been exposed, in their MOS to that type of event. I think the same goes for women and sexual harassment claims.
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After 20yrs, plus or minus, I'm leaving Hadit.com. I wish you all success with your claims and in dealing w/the VA!!!
Philip Rogers (aka: Flip)
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If they've approved his health care, then they should approve his pension. If I recall correctly, the requirements for pension are that he be 65yrs, or more, and served during a period of war. jmo
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Questions on DIC
in Appealing Your Veterans Compensation Disability Claims NOD, DRO, BVA, USCAVC
Posted
Does anyone know if SSD has any kind of CUE regulation??? They denied me 3 addition yrs even tho I'd won my VA claim. I won my VA back in '99(after 10yrs of appeals) and SSD only went back to '92. I'm considering going after them, especially now that I've won HB. Both claims were awarded retro to my original claim date of 4/89. Both the VA and SSD have screwed me. I would have been awarded an additional $10k in the Dow/agent orange lawsuit monies and my SSD would have been awarded the additional 3yrs had the VA processed my claim properly.