tdiu The Principle Of Substitution

[Pete53]

Berta:

I wanted to discuss this issue. Your post to me that mentioned that a Spouse can substitute themselves into their Veterans Claim that is open by asking and providing a copy of the death certificate.

At the time of my brothers death he was suffering from psoriatic arthritis. He had an existing rating of 10% for arthritus and 10% for psoraisis and according to regs based on meds he was taken and symptoms he should have been rated at 60% and when he retired should get 100% TDIU fairly easily.

I also think that she has a pretty solid claim for a tort or 1151 claim whichever is better.

In Feb I plan to go to El Paso and spend some time with her working on Mike's claim.

Although I was not aware of substitution I certainly want to learn more about it.

[Berta]

As long as they formally send in the 21=534 within one year after death and as long as the veteran had a claim that was pending at time of death. I think you mntioned you had been working on his claim for many years.

I posted the info I have in another post- couldnt remember where I read your question-

and cannot find the regulations yet in 38 CFR or M21-1

but my source ,NVLSP, is solid.

The claim could have been in any state -at time of death- pre determination, post determination, rating board etc- as long as it was still an open active claim.

Edited January 16, 2010 by Berta

[broncovet]

Wow, Berta

I am not doubting you, but I really did think somewhere it says that a Veterans claim dies when he does. Is this just the VA wanting us to believe that so we dont "substitute"?

[JamesBreckenridge]

For a long time, that's how it worked, Bronco. But now, if the widow jumps through the appropriate hoops, she can continue her dead husbands claims. Not just the accrued claims still pending before the rating board, but also the appeals to the DROs, BVA, and CAVC, all while preserving the effective date.

[Berta]

Broncovet-I heard this too from the DAV but they forgot to add that the survivor can resurrect the pending claims.

This was an erroneous mantra that vet reps used for years because they were either too lazy to pull out the 534 forms or they simply didnt know how to handle DIC claims. However it is part of their training to become a NSO.

After reminding this rep in front of the DAV's attorney-here in NY -I whipped out my award letters (he didnt believe in either claim and even told me the SSA award for PTSD would not help the accrued PTSD claim-what a dope)

I think he realized he could not treat widows this way anymore by giving them advise that does NOT reflect established VA case law.

I often wonder how many widows and widowers of vets were told this BS and never even filed a DIC claim for accrued benefits in time.

Accrued benefit claims that derive from a pending claim the deceased veteran had filed themselves MUST be filed Or subsotution requested) with one year after death of the veteran.

As long as vet reps could stall survivors for a year or more-with deception in misrepresenting the accrued benefits regulations -then the VA would not have to pay accrued $$$$ at all.

(Unless the survivor fell under the Nehmer Class Action lawsuit.)

[carlie]

Berta,

I believe as you posted this holds true for any claims

pending filed prior to the veterans death, is this correct.

I maybe wrong on this in my thinking but I think it does not

apply to new claims made after death.

Someone please straighten me out on this one.

Thanks,

carlie

[Berta]

http://www4.va.gov/vetapp09/files3/0921976.txt

This BVA decision shows how accrued benefits work and how they can be denied.

I believe akwidow raised the CUE issue for accrued-I am sure glad she did- this BVA case also shows how that could potentially work too- a CUE claim for accrued.

These benefits depend on established medical evidence.

For my accrued claim years ago I sent in plenty of evidence- as this was based on my husband's PTSD claim pending and in the rating board at time of his death.He was rated at 30% and appealed for higher rating.

But I mainly used the established medical evidence and highlighted it as to prove he should have been rated higher. He also had filed the TDIU form which the VA never acknowledged at all.

I was awarded his comp- 2 years of accrued benefits due to regs at that time- 100% P & T -less the amount of 2 years of his 30% comp for the two years that had accrued prior to his death.

Although his EED was 3 years prior to death in the award decision I tried to figure out the amount a little more than 37,000 with the historic rate table and it appeared they chose the cheapest 2 years and not the most recent 2 years as the COLA would have made that amount a little higher.

My accrued claim is now open again due to my Nehmer award.VA has to make an award under Nehmer as to SMC.

I sure dont think it will bring the additional year of PTSD comp as accrued but it will be interesting to see how VA handles all of his as yet unrated direct SC disabilities due to AO.

SMC is also part of an accrued benefit of a deceased veteran if the medical evidence warrants it.