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,

[john999]

Does burial expense include transportation to a VA cemetary? The actual amount the VA provides seems very inadequate. What is it ....$2000 bucks. That will buy a pine box including knot holes. Most of us AO vets are going to die from AO contributory causes. Can spouses also get buried in VA cemetaries?

John

[Berta]

John, as I recall the transport to a VA cemetery is part of the funeral bill.

I hate to bring this up but my husband was an organ donor and had to be cremated due to all the organ harvests.

As I recall the undertaker brought the cremains to the VA chapel in his own vehicle and had already packed some of the ashes for me to keep.

The organ harvest required an autopsy . .At the time of the autopsy I had no idea how critical those findings would be to all of my VA claims.

Yes, if the veteran is buried at a VA Cemetery, the wife can be too.But they must be buried like the vet was- cremains or casket-as far as I know.

The VA gave me the deed to the plot there for when I expire,right after the cemetery services.

I used the NVLSP recommendation on my formal I-9 form because the VA had made a legal error in my VCAA letter.

I tried to get my former vet res to support my position on the illegal VCAA letter but they would not help me.

The BVA caught the error, but by then I had mitigated the damages myself with evidence.

We have a topic here somewhere on this boilerplate statement.

Edited January 9, 2012 by Berta

[free_spirit_etc]

Does burial expense include transportation to a VA cemetary? The actual amount the VA provides seems very inadequate. What is it ....$2000 bucks. That will buy a pine box including knot holes. Most of us AO vets are going to die from AO contributory causes. Can spouses also get buried in VA cemetaries?

John

http://www.vba.va.go...ials/Burial.pdf

How Much Does VA Pay?

Service-Related Death. VA will pay up to $2,000 toward burial expenses for deaths on or after

September 11, 2001. VA will pay up to $1,500 for deaths prior to September 10, 2001. If the Veteran is

buried in a VA national cemetery, some or all of the cost of transporting the deceased may be reimbursed.

Non-service-Related Death. For deaths on or after October 1, 2011, VA will pay up to $700 toward

burial and funeral expenses (if hospitalized by VA at time of death), or $300 toward burial and funeral

expenses (if not hospitalized by VA at time of death), and a $700.00 plot-interment allowance (if not

buried in a national cemetery). For deaths on or after December 1, 2001, but before October 1, 2011, VA

will pay up to $300 toward burial and funeral expenses and a $300 plot-interment allowance. The plotinterment

allowance is $150 for deaths prior to December 1, 2001. If the death happened while the

Veteran was in a VA hospital or under VA contracted nursing home care, some or all of the costs for

transporting the Veteran’s remains may be reimbursed. An annual increase in burial and plot allowances,

for deaths occurring after October 1, 2011, begins in fiscal year 2013 based on the Consumer Price Index

for the preceding 12-month period.

http://www.cem.va.go...ne/eligible.asp

g. Spouses and Dependents

(1) The spouse or surviving spouse of an eligible Veteran is eligible for interment in a national cemetery even if that Veteran is not buried or memorialized in a national cemetery. In addition, the spouse or surviving spouse of a member of the Armed Forces of the United States whose remains are unavailable for burial is also eligible for burial.

(2) The surviving spouse of an eligible Veteran who had a subsequent remarriage to a non-Veteran and whose death occurred on or after January 1, 2000, is eligible for burial in a national cemetery, based on his or her marriage to the eligible Veteran.

(3) The minor children of an eligible Veteran. For purpose of burial in a national cemetery, a minor child is a child who is unmarried and:

(a) Who is under 21 years of age; or,

(b) Who is under 23 years of age and pursuing a full-time course of instruction at an approved educational institution.

(4) The unmarried adult child of an eligible Veteran. For purpose of burial in a national cemetery, an unmarried adult child is:

Of any age but became permanently physically or mentally disabled and incapable of self-support before reaching 21 years of age, or before reaching 23 years of age if pursuing a full-time course of instruction at an approved educational institution. Proper supporting documentation must be provided.

Edited January 10, 2012 by free_spirit_etc

[broncovet]

Free...

I think it is telling that VBM recommends this statment in appeals, while VSO's rarely do:

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.

One would think that if the above statement helps even one Vet, the VSO's would even publish a "NOD form" and include it. They dont. The question is why dont VSO take this opportunity to help Vets?

[free_spirit_etc]

Free...

I think it is telling that VBM recommends this statment in appeals, while VSO's rarely do:

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.

One would think that if the above statement helps even one Vet, the VSO's would even publish a "NOD form" and include it. They dont. The question is why dont VSO take this opportunity to help Vets?

I agree.... even if it helps just one Vet.

[free_spirit_etc]

Okay. Now I am confused, as usual, about dealing with the VA.

I had misplaced the letter when I was writing my appeal. (I know - bad move - but it got buried during finals week at school). So I went with the BVA appeal - as I had already filed my NOD on the matter.

Now, I looked over the letter again - to make sure I got it right before I mailed my appeal - and the letter tells me that if I disagree with the decision I need to file a NOD within one year.

The letter does not include a Statement of Case. But it does state "We made a decision on your Notice of Disagreement received on July 16, 2009 about one or more of your earlier decisions."

I am not sure why they made a decision on my NOD, but did not enclose a Statement of Case - but instructed me to file another NOD if I didn't agree.

I already filed a BVA appeal on the DIC and Accured Benefits claim on Sept. 8, 2010. So that should be protected (somewhat). But now that this letter paid me $300 burial - but states it represents the total grant of benefits sought (and they bolded the word "total") - Do I start over with a NOD? (as they instructed me to....)

I thought if they made a decision on an NOD they were supposed to issue a Statement of Case.

It gets confusing when they split up your claim into many different decisions, address them one at a time, but indicate the decision covers all your claims.

Edited January 18, 2012 by free_spirit_etc