Appeal - Suggestions Welcome

[free_spirit_etc]

I have been out of the loop for awhile, so I am rusty on the NOD / Appeal process. I welcome any feedback concerning my proposed appeal. This would be an attachment to a Form V9.

Thanks in advance!

In Reference to: xxxxx

January 5, 2012

I am appealing the decision dated November 21, 2011 indicating the payment of $300 toward my husband’s burial plot represents a total grant of benefits sought on appeal.

I take exception to and preserve for appeal ALL errors the VARO may have made or the Board hereafter might make in deciding this appeal. This includes all legal errors, all factual errors, failure to follow M21-1, all due process errors and any failures to discharge the duty to assist as violation of basic VA laws and regulations within 38 USCS and 38 CFR.

Some of the specific errors of facts / law on the most recent decision which I disagree include, but are not limited to:

The decision indicates the $300 payment toward my husband’s burial plot represents a total grant of benefits sought on appeal.

I disagree that this decision represents a total grant of benefits sought on appeal, as the decision did not address:

• My claim for Dependency & Indemnity Compensation (DIC) (appealed September 8, 2010)
  
• My claim for Accrued Benefits based on my husband’s claim for service connection for his lung cancer, as well as any other benefits that were reasonably raised by the record at the time of his death, including increased rating for his other service connected conditions. (appealed September 8, 2010)
  
• My claim / my son’s claim for Helpless Child Benefits. (BVA Form 9 submitted November 29, 2011)
  

The decision also indicates that the reimbursement is for the burial of a veteran whose death is not service connected.

As whether my husband died from a service connected condition has not been finally decided, I request to preserve the right to receive the service-related death burial benefit for my husband.

Respectfully submitted,

[carlie]

free,

It sounds real good to me but I want to send a shout out to an expert

in this area.

[Philip Rogers]

I think you've got it nailed, perfectly. It appears to protect your rights. I feel anytime the VA uses the line, or a similar line, ie; "this decision addresses any and all issues before the VA," that it should be appealed, to protect that issue, plus any others that may be pending. jmo

pr

[free_spirit_etc]

Thanks PR and Carlie!!!

And thanks for pointing out that I need to preserve my right to get the service-related burial benefit (in another thread). That thought had slipped right past me.

[Berta]

"The decision also indicates that the reimbursement is for the burial of a veteran whose death is not service connected.

As whether my husband died from a service connected condition has not been finally decided, I request to preserve the right to receive the service-related death burial benefit for my husband".

I personally see no need to appeal the $ 300 NSC burial payment.You can include it in the main appeal if you want to but this is my experience as well as that of other widows.....

In 1995 VA sent me the 300 buck burial fee.

I proved Sec 1151 death but that came with no ancillary benefits.Award in 1998 but no further burial amount due me.

Then I proved in 2009 that my husband died directly due to an AO disability.

I sent the burial expense application , along with copy of the award letter,and copy of paid funeral bill to the Philadelhia VARO that handles these claims.

They sent me the difference between the SC death funeral expenses and the 300 I already had received under the NSC regs.I think it was $900.00.

Usually they will send a survivor a new application for the funeral expenses they can pay, as soon as they generate the SC death award letter so no need to appeal the NSC burial payment.

"I take exception to and preserve for appeal ALL errors the VARO may have made or the Board hereafter might make in deciding this appeal. This includes all legal errors, all factual errors, failure to follow M21-1, all due process errors and any failures to discharge the duty to assist as violation of basic VA laws and regulations within 38 USCS and 38 CFR."

.This is what NVLSP recommends in the VBM to state on the formal I-9,so it is good you used that for the formal appeal .

I sure used it on my I-9, and pointed out the errors VA Buffalo had made in my claim for direct SC in 2003.

[Wings]

Good Letter/NOD.

I have never seen this "boilerplate" language before --and have made a personal note to save for future use!

Good Luck! ~Wings

"I take exception to and preserve for appeal ALL errors the VARO may have made or the Board hereafter might make in deciding this appeal. This includes all legal errors, all factual errors, failure to follow M21-1, all due process errors and any failures to discharge the duty to assist as violation of basic VA laws and regulations within 38 USCS and 38 CFR."

[free_spirit_etc]

Thanks Berta! Thanks Wings!

Berta,

I had not thought of appealing the death benefit before. I had assumed that once SC could be established, I could file for the additional burial expenses. But I thought the suggestion to appeal it was good (since I had to appeal anyway). I would rather appeal unnecessarily, than not appeal and find out I should have - especially as I have not kept up with current changes

Wings! Hello! Good to see you

Berta is correct. The boiler plate language is suggested in the Veteran Benefits Manual. It is pretty much supposed to somewhat protect you and keep open the possibility of bringing up issues that you may not have discovered until after the 60 days had passed.