Failure Of Duty To Assist - Accrued Benefits

[free_spirit_etc]

Does anyone know anything about this?

http://www.attiglawfirm.com/blog/va-benefits/veterans-disability-benefits-accrued-benefits-veterans-spouses-and-survivors-often-miss-this-claim-for-additional-compensation/

"if the Veteran would have provided that evidence to prevail in his or claim but for a failure in the VA’s Duty to Assist, then it is possible that an “accrued benefits” claim can be reopened for submission of additional evidence."

[Berta]

The award mentioned at Chris Attig's site was a Nehmer accrued award.

Nehmer accrued is different from non Nehmer accrued and that is all explained in in the Nehmer Training Guide.

In a different post her I caught this that you posted:

“But – as a widow, CUE is not an option. “

In some cases it is.

I won an accrued award under CUE for SMC accrued last year. The whole story is here in the CUE forum .

It was included in my Nehmer decision but was not regarding a Nehmer claim at all.

I filed that specific claim 10 years after the veteran died.

The VA had made 3 legal errors in my DIC award and on the rating sheet.

Have you contacted Chris Attig?

I had to technically “re -open' my husband's pending claims when he died.

You might fall under the newer “substitution” regulations. They are explained here at hadit.

In any event, I had to continue to support my older 1995 accrued claim with evidence. I saw my old accrued award the other day. I always said here that took 3 years but it only took a little over 2 years. It was the DIC claim that at took 3 years.

If your DIC claim succeeds, it could impact on the accrued claim you have pending.

I do find it odd that Attig mentioned a violation of “Duty to Assist” regarding the widow who won .

"if the Veteran would have provided that evidence to prevail in his or claim but for a failure in the VA’s Duty to Assist, then it is possible that an “accrued benefits” claim can be reopened for submission of additional evidence."

But I believe he said it regarding the veteran (who had filed his claims post VCAA)

[Berta]

I will contact Chris and make sure we are on the same age here as to the VCAA and this veteran's pending claim.....

[free_spirit_etc]

The award mentioned at Chris Attig's site was a Nehmer accrued award.

Nehmer accrued is different from non Nehmer accrued and that is all explained in in the Nehmer Training Guide.

In a different post her I caught this that you posted:

“But – as a widow, CUE is not an option. “

In some cases it is.

I won an accrued award under CUE for SMC accrued last year. The whole story is here in the CUE forum .

It was included in my Nehmer decision but was not regarding a Nehmer claim at all.

Thanks. I am sorry. I should have been more clear. I know I would have the opportunity to file a CUE if the VA made a clear or unmistakable error on MY decision for MY claim (for DIC and accrued benefits). But as a widow, I cannot claim a CUE in regard to my husband's claims (i.e. I cannot claim I am entitled to accrued benefits on the basis that the VA committed a CUE on one of HIS claims)

I filed that specific claim 10 years after the veteran died.

The VA had made 3 legal errors in my DIC award and on the rating sheet.

Have you contacted Chris Attig?

No. I have not. I just ran across the information a couple of days ago.

I had to technically “re -open' my husband's pending claims when he died.

I wasn't clear on that. I know harleyman suggested I reopen my husband's claims. But I thought the only claims I am entitled to accrued benefits on are claims that were pending.

You might fall under the newer “substitution” regulations. They are explained here at hadit.

I don't think I fall under those. My husband died in 2007. I think the law that allows a widow to substitute for the veteran (and continue developing the claim) went into effect in 2008.

When I was searching for a VSO after my claim was certified to the Board, I ran across a VSO who insisted that my husband's claim died with him, and that if I had not filed to substitute myself on his claim within the prescribed period I did not even have a claim. He was treating me as stupid, while he was providing me with incorrect information in regard to MY claim (pre-2008 death) and so I figured he wasn't the VSO for me.

In any event, I had to continue to support my older 1995 accrued claim with evidence. I saw my old accrued award the other day. I always said here that took 3 years but it only took a little over 2 years. It was the DIC claim that at took 3 years.

I guess this is where I am stumped because the regulations at the time my husband died said the decision is made based on the evidence in the file as of the date of death. So I am not clear about what additional evidence can be considered in support of the claim. However, as my DIC claim and the accrued benefit claim for cancer are intertwined - I can submit all the evidence I want to - and the VA can sort it out. But as the regulations state accrued benefits claims are based on the record at the time of the veteran's death, I like to keep pointing out that the new evidence substantiates the evidence that was already submitted.

If your DIC claim succeeds, it could impact on the accrued claim you have pending.

Thank you. I know that, but I was wondering about the duty to assist issue in regard to an earlier effective date, as well as for accrued benefits for other conditions.

I do find it odd that Attig mentioned a violation of “Duty to Assist” regarding the widow who won .

"if the Veteran would have provided that evidence to prevail in his or claim but for a failure in the VA’s Duty to Assist, then it is possible that an “accrued benefits” claim can be reopened for submission of additional evidence."

But I believe he said it regarding the veteran (who had filed his claims post VCAA)

My husband filed his initial claim for cancer in 2001, which was after the VCAA.

[Berta]

I emailed Chris Attig and will post his response

"My husband filed his initial claim for cancer in 2001, which was after the VCAA"

You are right, the VCAA overcame the Duty to Assist regs.

Failure of Duty to Assist is no longer an option for any claimant ,in my opinion, to even think about when appealing a claim these days.

A Violation of the VCAA,of course, would be, and it was a factor in my BVA case.

But probative evidence can mitigate detrimental legal errors in an illegal VCAA letter.

Any good VSO or rep should go over VCAA letters carefully.

If they dont, and the letter is deficient, in any way to the veteran or survivor, the rep or the claimant should raise Hell with the VARO.....ASAP!..

unless the claimant wants the BVA to remand the claim for the legal violations of the VCAA, and that adds many years to any claim.

[free_spirit_etc]

I emailed Chris Attig and will post his response

Thanks! I wasn't sure what he meant, but I found the idea interesting.

You are right, the VCAA overcame the Duty to Assist regs.

Failure of Duty to Assist is no longer an option for any claimant ,in my opinion, to even think about when appealing a claim these days.

I am not quite understanding that. There are still quite a few cases where they discuss the duty to assist, like this one http://search.uscourts.cavc.gov/isysquery/82393366-c470-4761-8adb-26558e6a12ba/7/doc/

A Violation of the VCAA,of course, would be, and it was a factor in my BVA case.

But probative evidence can mitigate detrimental legal errors in an illegal VCAA letter.

Any good VSO or rep should go over VCAA letters carefully.

If they dont, and the letter is deficient, in any way to the veteran or survivor, the rep or the claimant should raise Hell with the VARO.....ASAP!..

unless the claimant wants the BVA to remand the claim for the legal violations of the VCAA, and that adds many years to any claim.

That is why I would want to see if I could get granted DIC and accrued benefits FIRST, and then file for an earlier effective date (if, in fact, I have a basis to do that) - which is why I asked in a different thread if the BVA awarded accrued benefits, if I could file with the RO for an earlier effective date. If I could, then I would prefer to just get SC granted at this point - and wait the years for the rest to be adjudicated.

BUT, if the only way to challenge the effective date would be to appeal to the CVA (if the Board granted accrued benefits, but with a different effective date than I wanted) then I would need to place those issues before the Board at this time (in order to have a basis to appeal).

Actually, what I would have to do is to weight the costs and benefits of doing so. As long as I get DIC granted, that is the most important part. Accrued benefits for the cancer would also be nice. I don't think I would want to put those at risk, or at the risk of adding several more years before they are even granted, in order to establish a possible earlier effective date at this time.

BUT I still like to explore the issue and so I can make a fully informed decision about how to proceed.

Edited October 5, 2013 by free_spirit_etc