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Berta

Smc As An Accrued

Question

When I filed my SMC CUE claim in 2004 (presently being considered under Nehmer)

I realized there were very few similar claims like it at the BVA.

Even my former vet rep questioned the 1998 decision I cued but never advised me to NOD it and it took years for me to read the decision again and realize it was wrong.

Due to the new AO presumptives it is very possible that some surviving spouses of AO vets whose claims were decided long ago could have a potential basis now for an accrued SMC claim.That depends on many other factors but this case makes some good legal points that survivors cannot overlook.

This is not a Nehmer claim but this widow did receive SMC accrued yet questioned other periods of time she felt she was eligible for.This claim was denied but gives a good review of what these claims can involve.

“The appellant is seeking an earlier effective date for grants

of SMC for accrued benefits purposes. By law, the proper

effective date of a grant of SMC for accrued benefits

purposes is the date of claim or the date entitlement arose,

whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.

As discussed below, the Board finds in this case that

entitlement to SMC for accrued benefits purposes did not

arise prior to December 5, 2000, the date assigned by the RO.”

And:

“Periodic monetary benefits (other than insurance and

servicemen's indemnity) under laws administered by VA to

which an individual was entitled at death under existing

ratings or decisions, or those based on evidence in the file

at the date of death (referred to as "accrued benefits")

and due and unpaid for a period not to exceed two years,

shall, upon the death of such individual, be paid to the

veteran's spouse. 38 U.S.C.A. § 5121(a) (West 2002);

38 C.F.R. § 3.1000 (2003).”

from:http://www4.va.gov/vetapp04/files3/0423730.txt

( For AO surviving spouse Nehmer covers payment of ALL accrued arising from the deceased veteran's Agent Orange disabilities as explained here:

http://cfr.vlex.com/vid/816-nehmer-caused-presumptively-herbicide-19775958 and the 2 year accrued reg in this claim does not apply to AO survivors.)

Maybe this will help someone.

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