Update On

[Berta]

I certainly didn't want to file NOD on the May 13th 2009 award letter I got-

and I bypassed the RO in getting my ancillary benefits processed.The REPS application went smoothly as well as my Chapter35 refund request and funeral bill application.

That still left the SMC accrued benefits claim and also refund of my FTCA offset.Something else too-I forget what-

I wrote to District VA lawyer and we also had a long phone call to determine-since the FTCA settlement was handled by them if they were the ones who actually had to determine the offset refund. He referred me back to the VARO and sent me and the VARO a letter as to that affect. I was disappointed I had to deal with the RO on this matter-the same RO which never read 6 years of my medical evidence.

Suddenly I learned today that the RO has prepared a SSOC to correct the award letter I claimed was clearly and unmistakably erroneous.I dont think they want this claim to go into another year without a full and proper resolve.

Part of the problem was that the VA wanted to continue my DIC under 1151. I want it under the correct award-direct SC.

Under 1151 I was not eligible for considerable other benefits that a direct SC award generates-as well as the offset refund.

Maybe this will help someone out there.

If a vet or widow is successful in a direct SC claim or DIC claim - No FTCA offset can be withheld and is not applicable to their SC comp or SC DIC.

This is established VA case law and the BVA even made this point to me in a prior BVA decision I received in 2000.

'If the widow succeeds in direct SC death, there appears that there should be no offset money from her FTCA claim to her DIC.' or words to that affect-I sent the whole decision in as evidence and also the applicable offset regs from M21-1 and NVLSP.

By challenging the VA as to suggesting they made Clear and unmistakable error- I am still aware of my NOD timeframe-but within 3 months they have prepared a response and not taken over a year as my past NOD on this took for response.

Sometimes this works.

If the VA seems to have made a clear and unmistakable error in a decision they send to you-you can question the decision on this type of basis.

Watch out for the NOD clock however and make sure you understand fully all the nuances a CUE has.

Asking them to CUE themselves

(I did this successfully before as well and it generated a new DRO review in 2005 very quickly )in 1996 I did this too on other matter and got award letter straightened out in 3 weeks.)

can be done during the appellate process .This type of request does not depend on a final VA decision.

A vet or widow that could possibly use this method of obtaining a better decision should make sure they fully understand the CUE criteria here at hadit and can prove that the VA did in fact make a clear and unmistakable error-with legal citations to the regs they broke.

[LarryJ]

Good posting, Berta.

[john999]

Berta

You are busting their &^%$#! Heh, heh. They deserve it and spouses and vets don't deserve being put through this hell just to get their evidence read.

[carlie]

That still left the SMC accrued benefits claim and also refund of my FTCA offset.Something else too-I forget what-

Berta - Since all this has happened and now Rod's death has been adjudicated as

direct SC then heck yes they (by regs) should allow you to recoup all funds

they withheld as an offset, (you missed out on) from any tort funds you received.

I wrote to District VA lawyer and we also had a long phone call to determine-since the FTCA settlement was handled by them if they were the ones who actually had to determine the offset refund. He referred me back to the VARO and sent me and the VARO a letter as to that affect. I was disappointed I had to deal with the RO on this matter-the same RO which never read 6 years of my medical evidence.

Berta - that RO spent decades screwing Rod out of the funds owed his dependent's.

I feel the District VA lawyer should be handling the correction of the offset.

If not them - can you request them to issue a memo to the VSCM of your RO,

that the VSCM be completely responsible to work directly with the finance

department and come to a (dollar to dollar) agreement with you, on what additional funds you should be in receipt of, due to the offset?

The VSCM I believe has full authority to do this.

Remember that DRO's have the authority to do just about anything at most levels,

we tend to forget that the VSCM has equal authority.

I think this could help cut through some red tape for you.

Suddenly I learned today that the RO has prepared a SSOC to correct the award letter I claimed was clearly and unmistakably erroneous.I dont think they want this claim to go into another year without a full and proper resolve.

Berta - I think it's just another wall they are putting up to block

expeditious payment. It will be interesting to see how long it takes for you to recieve this additional SSOC and just what the heck (crap) they have to say at

this point.

Part of the problem was that the VA wanted to continue my DIC under 1151. I want it under the correct award-direct SC.

Under 1151 I was not eligible for considerable other benefits that a direct SC award generates-as well as the offset refund.

Berta - yes, ONLY accept it under direct SC, as they have now admitted to this.

I feel this should also be addressed by either the District VA lawyer, or directly by your RO's VSCM.

Also, won't you and you daughter be entitled to either

1) a new date for Chapter 35

2) additional Chapter 35 educational credits

3) a refund of educational credits that you had to pay to continue

A vet or widow that could possibly use this method of obtaining a better decision should make sure they fully understand the CUE criteria here at hadit and can prove that the VA did in fact make a clear and unmistakable error-with legal citations to the regs they broke.

Berta - as we all pretty much know,C&UE must be researched inside out and

upside down BEFORE someone files it.

I feel about the most important issue in filing for a C&UE is preparing it.

If one has ANYTHING in the wording of a request for C&UE not exactly right

by the regs. then I feel it will be shot down from the get-go.

carlie

[Berta]

Carlie=yes the VSM prepared the SSOC. I told them many times the exact amount which is in my settlement papers.

"Also, won't you and you daughter be entitled to either

1) a new date for Chapter 35

2) additional Chapter 35 educational credits

3) a refund of educational credits that you had to pay to continue"

YES! You are correct here too Carlie-I already got my new Cert of eligibility and might return to AMU this winter-

They allowed me to pick one of 3 dates for the eligibility to start.

Yes- they sent me about 700 bucks for 2005 tuition when my past Chap 35 ran out and the owe me about 5,000 more and are working on that.My school VA counselor had to send them proof of the tuition payments from 2005 to 2007.

You are 1000 % right here too Carlie:

"Berta - as we all pretty much know,C&UE must be researched inside out and

upside down BEFORE someone files it.

I feel about the most important issue in filing for a C&UE is preparing it.

If one has ANYTHING in the wording of a request for C&UE not exactly right

by the regs. then I feel it will be shot down from the get-go."

Yes- and legal evidence is what is needed-the medical evidence has to be well established before one attempts CUE.

[WHOLESALE]

Replying with a CUE can be pretty straight to the point if it's an obvious error. One or two lines that are right to the point are sometimes better than a two page letter explaining this and that.

franky

[Berta]

In the sense that a vet or widow can ask them to CUE themselves.

Yes-short and sweet is the best way to go with references to the regs they broke when they prepared the decision.

Carlie- my daughter has not heard from Chapter 35 VA yet- I wrote to them as she too is entitled to a new Certificate of Eligibility as well as me- she moved since getting her last Certificate so I gave them her new address.

When they straighten out her eligibility I will let all know here how they handled that -as this situation might apply to others out there.