Accrued Benefits - Evidence In The Record

[free_spirit_etc]

With the standard for accrued benefits for Veteran's dying in 2007 being what was in the record as of the date of death - I am assuming that means other evidence I submit for my DIC claim (for lung cancer) can't be used in determining entitlement for accrued benefits (for my husband's pending lung cancer claim).

However, from some cases I have read it looks like the BVA sometimes still seeks a medical opinion on accrued benefits claims. So does this mean that they can ask one of their examiners to offer an opinion based on the evidence that is in the record, but I am not allowed to refute the opinion, or submit an IMO?

Edited September 27, 2013 by free_spirit_etc

[Philip Rogers]

You can refute their opinions.

pr

[Berta]

Yes, PR is right.....anything can be appealed regarding accrued benefits.

Also you asked :

“So does this mean that they can ask one of their examiners to offer an opinion based on the evidence that is in the record, but I am not allowed to refute the opinion, or submit and IMO? “

Yes, they should do a formal posthumous C & P exam.

There were so many issues my husband's death involved that VA did many posthumous C & P exams on his med records, ,last one was 19 years after his death , for the AO Nehmer claim I had.

In my accrued case (I will try to dig that out to see if it would help you) I had a letter from my husband's VA shrink. VA was fighting me over both of the pending claims ( Sec 1151 claim and PTSD claim for higher rating)and ignoring the evidence in my husband's C file and med recs at time of his death. I was so fed up I went right over to the local VAMC and asked his shrink for a letter I could send to the VA. Part of the problem was many psychiatric tests this shrink gave my husband were not in the actual medical record for some reason.The doctor not only told me he would prepare the letter (and 2 days later I got it in the mail ) ,he also gave me copies of the testing results he had which were nowhere in the VA med recs copy I got and told me Rod was completely unemployable due to his PTSD. I said , yeah I know and showed him my husband's SSA award solely for PTSD that VA had refused to consider.(long story and battle there) The doctor stated to VA also that I had showed him the SSA award letter for PTSD while I was in his office.

Upon receipt by the VARO, of this letter and copies I made of the psychiatric test results and the doctor's assessment statement (all done in my husband's lifetime and technically all in VA's possession) my award for Accrued benefits to include my CHAMP VA award (with a very favorable 6 year EED prior to the award date)and my DEA Chap 35 award arrived here very fast after that.

I dont know if your husband's last treating doctors would do a letter like this for you......these days you might have to get an IMO. But I sure learned this is all a war game and we MUST be aggressive in covering any possible avenue of attack. I had another evidence ace up my sleeve too, but the award letter arrived before I even needed to send that.

We have a lot of info here on accrued benefits in the DIC forum and elsewhere here. I want to just run down the regs again for anyone reading this.

Also this is a BVA decision from 2013 ,

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp13/Files2/1316146.txt

that also shows how they apply the rules for accrued.(for non Nehmer claims) The widow was denied but denials have as much info as awards from the BVA do.I have learned plenty from BVA denials.

DIC claims (non Nehmer) filed within one year of the veteran's death, have the date of that death as the EED on a successful DIC award.

Nehmer accrued is different and is explained in our AO forum here and also in the Nehmer Training Guide here dated 2010 from NVLSP.

A Non Nehmer claim could certainly become a Nehmer claim and has for many survivors under the 2010 Nehmer regulations.

Non Nehmer accrued claims are explained in detail here:

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&ved=0CDUQFjAC&url=http%3A%2F%2Fwww.benefits.va.gov%2Fwarms%2Fdocs%2Fadmin21%2Fm21_1%2Fmr%2Fpart8%2Fch01%2Fch01.doc&ei=gIdFUoWDOcfi2AXPgIEY&usg=AFQjCNEy3ejEN3pjLdexy1REMEialZWHlg&bvm=bv.53217764,d.b2I

Evidence is described in above link as:

“Evidence in VA’s possession means evidence physically located at any VA facility, including, but not limited to

• VA regional offices

• VA insurance centers

• VA medical centers

• VA outpatient clinics

• Vet Centers, and

• the Records Management Center.

Note: Evidence in VA’s possession does not include Federal court records.”

Also important for non Nehmer accrued:

“On the notification document, state the

• approximate amount of accrued benefits due and payable, if known, on the notification document, and

• time limit in which the application (VA Form 21-534 or 21-535) must be filed.

Reference: For more information on the required time limits for application for accrued benefits, see M21-1MR, Part VIII, 2.1.d.”

accrued benefits are payable other than

• to hospitalized veterans under 38 CFR 3.1001, or

• as returned checks under 38 CFR 3.1003

the application must be filed within one year of the veteran’s death.

And

“A separate claim for accrued benefits is required if a claim cannot be initiated on

• VA Form 21-534, or

• VA Form 21-535.

Note: Issues on appeal to the Court of Appeals for Veterans Claims (CAVC) at the date of any claimant’s death are in a pending status and accrued benefits applications must be sent to the proper person or persons.

Reference: For more information on when to send accrued benefit applications, see De Landicho v. Brown, 7 Vet. App. 42 (1994).”

source : M21-1MR, Part VIII, Chapter 2

I mention all of above in case anyone sees here that the date of your husband's death was in 2007.

Meaning he had to have a claim pending at that time with the VA and that you re-opened his claim within one year of his death, which is usually done by surtvivors as part of the 21-534 DIC application.

And that you have continuously been prosecuting the DIC and accrued benefits claim ever since.

The citation to 38 CFR 3.1001 above does not apply, as far as I can tell to your case.

[free_spirit_etc]

Thanks. Since the decision is supposed to be made upon the evidence that was in the record (or in the VA's constructive possession) on the date of his death - I wasn't sure if they sought medical opinions or if it could only be made on exactly what is in the record. But it looks like they can seek medical opinions, asking the VA examiners to offer an opinion based on the evidence in the record. So maybe it just means I can't submit more private medical records, buddy statements, etc. etc.

So I guess the IMOs I submitted for my DIC claim don't have to be considered for the accrued benefits claim - as they were submitted after his death? But if they seek a VA opinion, then I have the right to submit an IMO that refutes that opinion (of the opinion isn't favorable)?

[free_spirit_etc]

This case is one where I questioned the medical opinion for accrued benefits

http://www.va.gov/vetapp11/Files2/1119220.txt

In this case, the veteran died in 2005 with an active claim for lung cancer. The widow was granted DIC based on the VHA expert's 2011 opinion. However, she was denied accrued benefits because the record as of the date of his death did not support the claim. They didn't consider the VHA expert's opinion to affect the accrued benefits claim. I guess because it was issued after his death.

So I was still unclear whether medical opinions submitted after death would be considered evidence (i.e. if they are submitted after the death - they don't count for accrued benefits) or considered part of the duty to assist (i.e. the VA obtaining an opinion, if necessary, to help them decide the claim).

[free_spirit_etc]

Berta,

It looks like in your accrued benefits claim for an earlier effective date you presented VA records. So that would mean that even though those were not actually IN his record at the time of his death, they were in the "constructive possession" of the VA at the time of his death.

[free_spirit_etc]

Okay.. I looked at the link you provided http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp13/Files2/1316146.txt

and it says:

"Generally, the Board would remand this case to obtain an adequate VA examiner's opinion; however, because this claim is solely for the purpose of accrued benefits, the Board is not permitted to undertake development subsequent to the Veteran's death. Therefore, based on the evidence of record at the time of the Veteran's death, the Board finds that the preponderance of the evidence weighs against a finding of service connection for a psychiatric disorder, to include PTSD, for accrued benefits purposes."

So I am still not sure that the VA will seek or use an medical opinions obtained after his death for accrued benefits -- even an opinion they seek (i.e. for DIC).

I am really trying to figure this out to see if I need to build an argument for the case that the evidence in the record at the time of his death also supports the claim.