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

[free_spirit_etc]

This is a 2007 death I know the rules changed since then.

[Berta]

Just to clarify Free Spirit:

“Berta,

It looks like in your accrued benefits claim for an earlier effective date you presented VA records.”

I didnt have a accrued PTSD claim for an earlier effective date. Maybe you mean the 1151 claim.

Per the regulations I had to file for accrued benefits within one year of Rod's death and I stated that on the 21-534 and followed the form up with a regular accrued claim ( in case they didnt get it from the DIC form.) both both pending claims he had...1151 and PTSD claims.

“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. “

All of the medical records that warranted a 100% PTSD SC rating were in VA's possession.Some of them I had to find out as to where the exact possession was.

Some were still in Buffalo VAMC ,and in Syracuse VAMC when I filed my claims ,but most where here in the local Bath NY VAMC and some were still in his shrinks office at Bath VAMC.

My prime evidence was his SSA award for PTSD that VA had in their possession but kept ignoring Also they did not have ,in the med rec file, his VA shrink's stuff.

I went over to the VAMC and asked his shrink if he would give me copies of the VA shrink stuff. This doc had given him multiple psychiatric tests, hypnosis therapy,numerous sessions over his stressors and anger problems, and had approved him for the 21 day PTSD inhouse program at VA Buffalo ,which he attended shortly before he died.

The inhouse program records were never mentioned by VA either but they had those records.

I asked the shrink to write a letter to VA verifying he had been awarded SSDI solely for PTSD ,retro to 1991. I had the SSA letter with me.I submitted the med recs the shrink gave me,that VA had ignored so we assumed they were not in the formal med rec files,.and the Doc wrote the letter and mailed it to my VARO that same day.

Within about 4 weeks later VA awarded me retro accrued for 2 years of 100% PTSD SC.,but the actual EED was for 3 years EED on paper.

However the law at that time only awarded 2 years of accrued.I was satisfied with the decision and had no appeal basis.

Accrued benefits for survivors are not contingent on any other matters ,such as DIC etc.

They require having a claim filed by the veteran with the VA ,that is still pending at time of the veteran's death.The accrued claim must be filed within one year after death.

The survivor these days must formally substitute themselves as the claimant.

I however had to re open the pending claims in my name and support them with evidence.

My husband had 2 pending claims at death:

a Section 1151 claim

and a PTSD higher rating claim (from 30% SC) claim)

I then became the claimant after he died . The 1151 DIC was resolved in 1998 and then the SMC 1151 CUE claim as accrued was filed in 2004 and awarded in 2012.

This was a 1151 CUE issue for accrued, far different from the SC PTSD accrued claim.

I presently have with a RO specialist ,a CUE claim I filed on that award.

IBut it wasn't for a earlier effective date, it was for 18 or more months of additional 100% retro 1151 for his 1151 stroke rating.

The VA awarded 6 months at 100% under 1151 and then gave him accrued SMC for the residuals and paid me those amounts.last year.

However the evidence in VA's possession at time of his death warranted 100% for almost 2 years prior to his death. Plus the SMC Housebound award.

The evidence, a VA Neuro's statements, a letter from then UnderSecretary Vogel, his student loan waiver signed by a VA doctor, and SSA for his original SSDI award, stated quite clearly that he was 100% P & T by a NSC stroke.

He had 2 SSDI awards ......

First for NSC stroke, then I filed reconsideration and SSDI awarded a better EED with more retro and awarded him SSDI solely for his SC PTSD.

The NSC stroke finally became an 1151 stroke this past 2012.Rod had claimed the VA might cause his death by improper treatment of his heart disease and stroke in his original 1151 claim, thus I was eligible for accrued. Although it took me 20 years and a CUE claim involving, 3 legal errors ,to get it.

He had the stroke in 1992 so that was a big victory for me to get that properly addressed after 20 years..

I have yet to file for the AO IHD award under 1151.They only paid me for Nehmer direct SC AO IHD but they finally rated the IHD so now I can file under 1151 as well as file CUE on it.His undiagnosed heart disease had never been acknowledged by the VA before except in my DIC and FTCA awards.

I needed an acknowledgement and a rating in order to pursue that further. The Nehmer decision awared the IHD.There are no time limits on 1151 claims nor on CUE claims.

The regs are clear that 1151 awards are separate from and in addition to SC awards.

But the 2012 award letter was wrong as to what they owed me in accrued and they will have to pay the proper retro,about 18 months of 100% SC under 1151.when they correct their clear and unmistakable error.

Edited October 29, 2013 by Berta

[free_spirit_etc]

Thanks for clarifying that Berta.

But then that takes me back to my original question of evidence in the file as of the date of death for accrued benefits claims. From what I am finding so far, it is looking like even medical opinions solicited / submitted after the death cannot be used in support of a claim for accrued benefits.

I will keep looking. But that is where my searching is leading right now...

[free_spirit_etc]

This whole issue can actually be pretty complex.

But I found this case: http://veteranclaims.wordpress.com/2011/12/page/2/

and it is making differing distinctions at differing times. At one point they allowed submission of evidence that identified, verified, or corroborated evidence in the file. From another precedent on a somewhat different issue (O.G.C. Precedent 6-93)- evidence submitted after death could not be used in support of a claim, but could be used to guide "logical reasoning" about the evidence in the file on the date of death.

But that changed to the submission of evidence that supports, verifies, or corroborates the death certificate.

I haven't fully read the decision, but many of the changes seemed to take place in 2000, 2002.

There is also a big difference between VA evidence authorized by the Secretary and other evidence. For example, if the VA authorized a report to be written by a VA provider, that could be considered to be constructively in the file as of the date of death, though it had not been reduced to writing.

VA autopsies can also be accepted (or at least they were at one point). However, there is no mention of private autopsies being permitted, as far as accrued benefits claims.

It gets pretty deep....on many levels.

Edited October 29, 2013 by free_spirit_etc

[free_spirit_etc]

But this case -- the veteran died in 2006 and the VA sought an opinion in 2012 for accrued benefits. http://www.va.gov/vetapp12/Files5/1231007.txt

[free_spirit_etc]

But......

http://www.va.gov/vetapp12/Files4/1223040.txt

"The Board remanded this claim in February 2012 for the RO/AMC to refer the TDIU claim for a medical opinion by a specialist to determine the effects of his service-connected acquired psychiatric disorder including a mood disorder and PTSD, bilateral hearing loss, and tinnitus on his ability to obtain and maintain employment.

Upon further research, the Board has determined that it erred in requesting a medical opinion in this case. As such the evidence developed by this remand will not be considered by the Board in its determination. While there are some exceptions to the rules regarding additional evidence subsequent to a Veteran's death in accrued benefits claims, VA opinions, if obtained after the death of the payee, are not among the exceptions, since this evidence is not "in the file" at the time of death. It is possible, that a VA opinion had been sought in order to clarify evidence. In such a case, while the opinion may have been requested to obtain clarification of the medical evidence of record, in retrospect the opinion request should not have been made because newly obtained evidence cannot be used in adjudicating a claim for accrued benefits under 38 U.S.C.A. § 5121(a) and 38 C.F.R. § 3.1000(a); simply put, the opinion cannot legally be used in deciding the claim for accrued benefits.

In Ralston v. West, 13 Vet. App. 108, 113 (1999) it was stated that "n his motion for clarification, the Secretary correctly states that entitlement to accrued benefits must be determined based on evidence that was either physically or constructively in the veteran's file at the time of his death. See 38 U.S.C. § 5121(a); Hayes v. Brown, 4 Vet.App. 353 (1993) (certain records deemed to be in file at time of death). The Secretary then argues that this statute prohibits the Board from securing additional evidence as the Court had ordered in its memorandum decision. The Secretary essentially requests that, notwithstanding the inadequacy of the record, the Court reconsider its decision and remand the matter to the Board without ordering it to secure a medical opinion. After reviewing the evidence, the Court will accept the Secretary's concession that a remand is appropriate for the Board to provide adequate reasons and bases for its decision without securing a medical opinion. See Hayes, supra."

Edited October 30, 2013 by free_spirit_etc