Treasury Greenbook

[infantry10]

Wow!! Thats ridiculous! It should never take that long and it's a shame you had to wait for what was owed to you. Smh!

My wife's grand father passed away in Nov 2009. His wife has been receiving VA payment ever since in Full payment of what he was getting before he passed. She has contacted them several times telling them of their mistake but they've never fixed it. She's been in contact with the local VFW also and he keeps telling her to "just spend it". Her husband was a smart Marine and taught her well how the VA works. She puts the overpayment in a separate savings account every month cause she knows eventually VA is going to want it back. The VFW tells her that she should just spend it and if and when the VA wants it back, they'll take care of it. I'm glad she is smart enough to know to never listen to VSOs over common sense.

[free_spirit_etc]

The regulations on waivers on repayment on the basis of against equity and good conscious are here:

http://codes.lp.findlaw.com/uscode/38/IV/53/5302

[infantry10]

I'm not sure what a DIC is but I know I've never heard her mention it. I told her that I figured eventually they would ask her to make a repayment plan. She had thought the same thing, thats why she saved the money. 3 years of over payment is a chunk of change I imagine.

[free_spirit_etc]

If the veteran died from a condition that was service connected, the widow is entitled to monthly benefits in her own right.

I'm not sure what a DIC is but I know I've never heard her mention it. I told her that I figured eventually they would ask her to make a repayment plan. She had thought the same thing, thats why she saved the money. 3 years of over payment is a chunk of change I imagine.

[free_spirit_etc]

They should have sent her information on claiming for DIC when he died. http://www.benefits.va.gov/COMPENSATION/resources_comp03.asp#BM01

Effective 12/1/12 Basic Monthly Rate = $1215 (38 U.S.C. 1311(a)(1))

Also, yes he was 100%. He passed away due to having lung cancer that was caused by a parasite from agent orange. She has documentation from VA of what the cancer came from. He was awarded compensation for it 4 months before he passed away.

[free_spirit_etc]

infantry10,

It would be interesting to see what information she sent to the VA. They should have stopped his payments (except for the payment for the month of death) and helped her apply for DIC -- where she would get monthly benefits in her own right. (She would also be eligible for a VA home loan, educational benefits, CHAMPVA, etc.)

The VA should have also paid a chunk of change toward his burial.

But it is hard to know without seeing what specifically she reported to the VA and what specifically they sent her, where she would stand on this. In the very least - she would have to repay the benefits they paid in his behalf, and be able to start drawing benefits in her own right from the time she applies for DIC. In the very most, they would let her keep the payments they paid in error -- but she would have to show that she was not at fault (which she should be able to show) and that either she is not able to repay (which would be difficult if she has the money in savings) or that it would be against equity and good conscious to make her repay. There might also be a possibility that the way she notified them of his death could be considered an informal claim for DIC -- and if the VA did not send her the forms to apply -- it would still be pending -- and if that is the case, she could get DIC awarded all the way back to the date of his death.

But in the very least she should be able to get DIC from this point, and would be entitled to the last month payment of her husband. VA pays a month behind -- so that would mean she gets the payment he got the month he died - and the payment he received the following month (which was the payment for the month he died.) And she should be able to get around $2000 toward his funeral expenses.

She may really want to talk to an attorney. He might be able to see if she can be provided "equitable relief" if they don't accept that she had an informal claim for DIC -- where she only repays the difference between what the veteran received and what SHE would have received if the VA had done their job. Or he might be able to arrange that as an offer in compromise.

She should be able to start getting benefits in her own right -- and get the extra payments settled -- rather than just having to keep banking money they are sending her in error -- but just saving it until they decide they want it back.

[Philip Rogers]

PR,

I wouldn't count on her getting a waiver. Just showing she notified them of the death wouldn't be enough. She would most likely have to show that she didn't know she wasn't entitled to the funds, and / or that it would be a hardship to pay it back. Though I am not sure of the VA rules yet -- I imagine they are similar to SSA.

And just moving those particular funds wouldn't protect her from electronic attachment. They can attach any funds at the same bank. In my case, I had closed the account that the funds had been placed in before they did an attachment. The placed a freeze on the funds in a different account I had at the same bank -which was an account I opened in just my name after my husband's bank. So the VA can attach any funds in any account you might have at the same bank that they deposited the funds to.

In my case, a big part of the battle was that they froze the funds, but didn't reclaim them for a long time. So I couldn't spend them because they had a hold on them, but I couldn't be issued a check for the amount due, because they had never reclaimed the funds.

The key is to move them to another bank, or a safe deposit box. She could also get an atty to represent her, to bargain w/them. Maybe she thought the money was hers' because she notified them and there was no change. That would be an acceptable conclusion for someone unfamiliar w/the VA system. jmo

pr