ptsd Substitution Regs For Veteran Survivors

[Berta]

Survivors are often able to substitute themselves for the deceased claimant if the deceased veteran died with a claim in progress.

This is something any survivor should not overlook, particularly with so many service personnel who incurred injuries during the recent war and had a claim pending with VA, yet have died due to the complications of their service injuries.

The regs however, cover any surviving spouse and or appropriate claimant who could be legally substituted for the deceased veteran, regardless of the veteran's service period.

When the VBM went to print in 2011, NVLSP did not have the final regulations on substitution.

I believe this fast letter has already been posted at hadit before but the most recent version of the Substitution regs are in it-

http://www.scribd.co...-Claimant-09-15

VA Fast Letter # 09-15

It is on page 4, as to the new statute governing these types of claims.

Once the survivor applies for Substitution they then have to continue to develop the deceased veteran's claim for any potential accrued benefits.

ALL service officers and vet reps understand these regs and should all have the proper Substitution form which is also here at hadit and also at the VA web site under forms.

Form # 21-0847

Once received and accepted by VA the form only covers the legal requirement of substitution.

The burden of proof falls onto the new claimant ,to prove the veteran's pending claims issues.

The new claimant should obtain the veteran's C file and VA medical records as soon as they can and dig out the last letters the veteran received from the VA as well as the veteran's original VCAA letter, as these documents hold the keys to what the new claimant needs to hopefully succeed in an award for “accrued benefits”which has been discussed here at hadit for years----info

available under a hadit search.

A surviving claimant in some cases, might not be eligible for DIC or a war time death pension but could still be eligible for accrued benefits.

For example say a veteran died due to a completely un-service connectable cause.

But say the veteran had a PTSD claim pending at death.

There would be potential for the surviving spouse to substitute themselves and follow that claim through to a potential accrued award if they could not garner DIC or a death pension from VA.

In my case- they awarded for accrued PTSD comp. but continued to classify my husband's death as NSC. They subsequently awarded DIC 6 months later under 1151 and then the BVA awarded direct SC death in 2010.

These claims were separate issues however from the accrued claim and every other claim had to be supported separately with evidence.

I received accrued long before the substitution regs became available.

The claim criteria however is the same regarding any potential accrued claim.

I used manila folders specifically for the evidence and documents to prove my husband's 30% SC for PTSD on appeal when he died, should have been 100% or TDIU.

My accrued award claim took less then 3 years.

I kept the 1151, FTCA and direct SC death AO issues and folders separate from the accrued benefits claim.

When the 1151 and FTCA issues were resolved, I put those files away but needed some of them for my 2004 SMC CUE claim, which was another "accrued " award , under 1151, awarded this past January.

So it pays to keep EVERYTHING from the VA.

Accrued benefit claims that are non Nehmer 2010 ,

MUST be filed for within one year of the veteran's death.

DIC claims MUST be filed within one year of the veterans death-if the surviving wants to attain the date of death as the EED. Otherwise VA will use the date of the formal DIC claim.

There are no exceptions to the above 2 statements unless the claim falls under Nehmer and meets the Nehmer criteria specific to the AO disability.

Edited May 3, 2012 by Berta

[Pete53]

Thank you Berta for this important information.

[red]

Thanks for the info:

My question is my wife has a stroke and is incapacitated. She would not be able to handle the dic process. Now, I have a death folder that directs them , my children) what to do with the dic if I pass away. I have been 100% T&P for 11 years. Who do they need to call to start the process. I have the form to be filled out in the death folder.

I also at this point have a dept head with the va who has power of attorney on me listed for them to call, but he will retire in two years. I hope to make it longer than that, but who knows. If I do die, how long will it take for her to start drawing the dic? She is also has a&a and that I understand would be added to the a&a. Thanks as usual for your help.

[Philip Rogers]

A friend of mine died on 5/6/11. I helped his widow draft letters, within a few days, applying for DIC, death/burial benefits, a claim for accrued benefits and requesting a copy of his c-file. She started receiving her DIC within 30 days after his death. I couldn't believe how fast they moved! She's still waiting for copies of his c-file and death/burial benefits, a yr later. Both SSA and VA moved very quickly. VA even sent the life insurance disbursement within 30-45 days, without her requesting it. He was TDIU, over 10yrs, and the insurance was the VA insurance disabled vets can purchase.

pr

[Berta]

Red- I assume you mean the 21-534 application and any service office or vet rep can help the children fill that out. With 100% P & T for over ten years the DIC should not be a difficult claim, but it will take some time.

They will need a copy of the marriage license and death certificate too -lets hope that day is long from now~!

We have done an SVR show on Death files- in our archives here and I just had to add some of my internet passwords to my own death file-so my daughter can pay my final phone bill on line and cancel anything in my amazon shopping cart when I die. I don't think I would still need it anyhow.

My PC was down and I had to use a library PC and realized there were many internet passwords I still need in my file- such as my IP provider and my sattelite dish access info.

Red I sure appreciate that you are thinking ahead like this for your family- they will be so grateful too when the time comes.

.” If I do die, how long will it take for her to start drawing the dic? She is also has a&a and that I understand would be added to the a&a “

It should not really take long as Philip has stated here and they will add the A & A to the DIC amount.

SSA can move very fast when a death involves a widow qualified for survivors benefits , unless the widow already gets SSA retirement benefits, and when my husband died he had private insurance and the check came in 10 days. As soon as insurance cos get a death cert, they pay out fast.

You survivors might well need to purchase at least 10 or more death certificates,with a raised seal from the Surrogates Office.They go fast.Property deed transfers, insurance, probate stuff, VA, SSA, there is 5 right there.

There is considerable info here on the different types of DIC.

It pays to always have the spouse involved in your VA claims so that they fully understand the SC disabilities you have and why they are important to understand if you die as they impact on potential DIC awards, and also the spouse needs to know how difficult VA is to deal with. Some spouses don't fully realize that, until they themselves become VA claimants when they are widows.

In a case like Red's his spouse should have no problems with DIC at all but certainly many veteran's deaths do not quarantee DIC at all and can take years to an award of DIC, if in fact, DIC is actually warranted by the medical evidence.

I had PC problems for 2 days and decided to start an article here on the ABCs of DIC-

then I realized the whole 9 yards of DIC is all here already but has to be carefully read by survivors because it takes so long to repeat it and type it all again and again.

Since the VA intends to go paperless it also pays to make sure your spouse can handle a PC because it is almost imperative these days for all VA claimants to be PC literate.

So everything is already here anyhow - accrued benefits, REPS info, and explanations of the different types of DIC claims.

DIC claims are like vet's claim in only one respect- medical evidence is everything ...unless the vet has ten years of continuous 100% P & T and that means the medical evidence has already been established for Part 1318 of the regs to kick in.

It pays for any survivor to go over the info here already in this DIC forum before even asking a DIC question sometimes because there is so much info here already.

I just put into my death file instructions for my propane fireplace, my chimney sweeper's phone number (I burn wood too) and the specs on my oil heater and my maintenence contract with my oil company . Every once in a while I think of something else that my beneficiary will need to know.

It is sort of a pain in the butt to do it, but it also gives me great peace of mind.

Edited May 8, 2012 by Berta

[Berta]

I need to make a point to all this-

it is almost impossible to determine, in most cases, when a veteran died with a claim pending, if the survivor should"substitute" themselves as the claimant, when a simple 'accrued' claim ,noted on the 21-534 as well as followed up on formally- might be more beneficial to the new claimant that the substitution regulations ,which were not final when the VBM came out last year.

This is one more reason a veteran's survivor needs a vet rep as they can go over the deceased veteran's pending claim and then determine on an individual basis, what type of claim should be made regarding any potential benefits

that were due to the veteran in his or her lifetime.

The most recent info I have on Substitution regulations is in the Spring 2012 Veteran's Quarterly from Bergmann and Moore.

I have not had time to fully comprehend it all yet but still I have realized that there are many factors that would need to be considered for whether an 'accrued' claim or a substitution of the spouse, would be the best way to go.

For non spouse claimants, that determination would have to be an accrued claim and not substitution

Non spouse claimants...." a living person who would be eligible to receive accrued benefits under Section 5121 A, 38 USC " who is not the surviving spouse.

It is impossible for us to really make those determinations here because so much info would have to be attached to the posts by the claimant.