Widfowers And Widows Of Vets

[Berta]

I cant seem to find the fairly recent questions we had from a widow here -

It appears her husband died with a claim pending that was denied-

Accrued awards are based on pending claims-

but I raised an issue that I had given quite a bit of thought about (widow's DIC claims can be very complex) and I find that there is a case from the CAVC that confirms the info I suggested to her- as a potential way to obtain accrued benefits.

Again I have to make it clear that the VA, if they see a pending claim has been denied -will surely say that the widow or widower has no potential to get accrued.

And in some cases they are absolutely wrong-

Most vet reps are not as up as they should be on the DIC regs-

and when a member here attempted to start a widow and widower of vets site to share DIC info- they had to shut down due to porn crap and awful posts.

The husband of the widow here appears to have had a denial BUT the appealate period for NOD had not run out-I begah to think she had a valid accrued benefits claim.

I was thrilled after taking alot of time to read the 2007 VBM ( the info on DIC is extensive)

and found that Taylor V. Principi

stated that a veterans claim was still pending at time of his death BECAUSE he had died within the year NOD appellate period!

This means that if you are spouse of a vet and they were denied comp-

as long as the denial and NOD period had not run out when hey died, the accrued claim can be filed on that basis.

The actual reg is 38 CFR 3.160(D)

Also Teton V West and many other citations are in the VBM expanding on this theory.

This only involves pending claims of the veteran. Many here remember Emily and her countless attempts to get accrued benefits.

Her husband had no claim ever filed at the VA. She obtained DIC but the regs prevented her from attaining accrued benefits.

[Berta]

One other thing to add to widowers and widows DIC claims.

The claims are based on "evidence in VA's possession at time of death."

This does not mean evidence solely in the C file.

I had to raise this issue to VA in 1995 to make sure they understood this-

the evidence I had to support my DIC claim was in VA's possession at time of his death.

The evidence can be anywhere physically in the VA system and still be considered-in "VA's possession" at time of death.

[tssnave]

Berta,

You wrote: "Her husband had no claim ever filed at the VA. She obtained DIC but the regs prevented her from attaining accrued benefits." and DIC "claims are based on "evidence in VA's possession at time of death.""

This makes me wonder, if I died prior to the ten year mark of my effective date (my original claim date, in my case) for some cause other than my sc disability, could my spouse apply for DIC based on the fact that the C&P examiner, my IMO doc, and my private physcian ALL stated explicitly that my bipolar started in the military and has continued SINCE the military?

IOW, even though I only applied for VA disability 4 years ago, I have had bipolar disorder since I was in the military (was treated on active duty and regularly since then for almost 30 years - all documented in my VA claims file, all referenced by all 3 examiners, to include the VA C&P shrink) and that information is in the VA possession.

Question - Would the fact that I had sc bipolar for almost 30 years but only applied for my claim 4 years ago mean that the VA would consider me to have met the 10 year mark if I died of some non sc illness or accident or injury even though I didn't file when I got out of service?

Nobody told you back then you had a valid VA claim if you were seeing the post shrink weekly, on meds, and continued to see a shrink weekly for years and then off and on for years - no 1-800-here's a list of benefits you earned in service and no outreach. I don't plan to die anytime soon but if something did happend before the 10 year mark it would be nice to know that my spouse could draw DIC.

I just made a DIC file and have it in a green folder in my VA file cabinet and have given orders that my family log into hadit if I die for advice so DIC has been on my mind.

Thanks,

TS Snave

[Berta]

That is a good question and hard to know how VA would decide a claim like that based on what you stated:

"This makes me wonder, if I died prior to the ten year mark of my effective date (my original claim date, in my case) for some cause other than my sc disability, could my spouse apply for DIC based on the fact that the C&P examiner, my IMO doc, and my private physcian ALL stated explicitly that my bipolar started in the military and has continued SINCE the military?"

The key to 38 USC 1318 is 100% permanent and total,proven by medical evidence, for the ten years prior to death.

Your wife could obtain an Independent Medical Opinion ( as our member Emily did) to support a 100% ten year P & T SC disability.

Best to stay among the Living -TSSNAVE! for many more decades!

Still this is certainly something to think about now and see if there is a way to support any eventual claim for DIC on this basis that your wife might have.

A few weeks ago I talked to Rick Spaturo (Attorney NVLSP)

I had a question on Nehmer and I wrote to him pointing out Ron ABrams (NVLSP) had told me my present AO claim was first of its kind years ago and since then nothing like it has popped up yet.

I had a question regarding the COurt Order of Nehmer as to retro-

Upon proper SC death award due to AO the VA has to release a five figure FTCA offset to me.

I put in the letter to Rick the actual scanned statement I received opn this refund of offset from the BVA in an older claim I had there.

He didnt know the answer to my question-it was unusual but his advise to me was to make sure I LIVE long enough to get that award!

The proper award makes the question moot.

He is right- I think claims can motivate us in positive ways-as miserable as they can be-

and I have heard vets say that their claims alone provided them the impetus to not allow anything to get them down-

they viewed their claims as a goal-

and some vets told me they werent going to die just for spite- until their claim was awarded.

I think claims keep many vets going-and looking forward.

and I think it is commendable that you are thinking of your wife.

My husband mentioned DIC the day he died and said the VA would kill him and then kill me.

Hours later he was dead and he was right -wrongful death by VA-they havent killed me Yet!

But if utter frustration can kill someone-they sure have tried to.