Jump to content
  • 0

41 Years Of Retro Under Cue



  • HadIt.com Elder

I found this by accident while searching the BVA today:

Better than a daisy CUE, this one is a beautiful Rose Garden

And, like my SMC CUE, it grew out of a Section 1151 issue.

very unusal to find 1151 CUE awards


The veteran's motion to revise a June 1959 Board decision on
the basis of clear and unmistakable error is granted. The
veteran's motion to revise an August 1998 Board decision on
the basis of clear and unmistakable error is denied as moot."

(It was a 1959 decision and BVA correctly denied the other moot CUE claim because they properly awarded this one, with 41 years retro!


Also this goes to show what I say here from time to time ...

CUE is NOT a one shot deal.

  • Like 5
Link to comment
Share on other sites

Recommended Posts

  • 0
  • HadIt.com Elder

If you analyze it, it was one of the biggest screwups in VA's checkered history. He really wasn't entitled to it by rights but once you open Pandora's Cookie Jar, it's hard to moonwalk it back. It's one of those decisions that makes you smile-then bust out laughing. Shinseki filed to overturn the Court's decision and took him up to the Fed. Circus. There,their oral argument went along the lines of " Well, your Honors, what we propose to do is remand it back to his RO for a de novo decision." The justices queried the OGC dude as to whether that might not result in his losing his CUE claim. The VA's litigator, with a straight face, said "Well, we can't possibly know that yet until it happens." The Court decided that once you announce that win, it's all over except for the sound of the cash register opening.

  • Like 2
Link to comment
Share on other sites

  • 0
  • HadIt.com Elder

This veteran was obvious alive at time of this decision because,otherwise the decision would have been far different,if the BVA knew the veteran had died.

Nehmer claimants all had survivor benefits , meaning as in my case, I had to name my beneficiarys when I filed for AO IHD Nehmer, in case I died during the adjudication of my claim.

Nehmer beneficiaries are eligible for ALL acrrued benefits solely due to the AO issue.

However the accruied benefit regulations contain a codicil:

"Accrued Benefits

Accrued benefits are defined as "periodic monetary benefits . . . authorized under law administered by [VA], to which a payee was entitled at his or her death under existing ratings for decisions or those based on evidence in the file at the date of death, and due and unpaid . . . ." 38 U.S.C.A. § 5121(a) (West 2014); 38 C.F.R. 3.1000 (a) (2014) (as amended 71 Fed. Reg. 78368 (effective Jan. 29, 2007)). Moreover, an "[a]pplication for accrued benefits must be filed within one year after the date of death." 38 C.F.R. § 3.1000©.

If not filed for within one year after the vetern's death, they are NOT payable ( unless under Nehmer provision)

"Based on the foregoing, the appellant does not fit into any of the categories listed under 38 U.S.C.A. § 5121(a)(2) through (5), or equivalently under 38 C.F.R. § 3.1000(a)(1) through (4). The evidence of record shows that while the appellant is the adult daughter of the Veteran and his spouse (the decease beneficiary), she is not a "child" as defined in 38 C.F.R. § 3.1000(d)(2) and 38 C.F.R. § 3.57. Thus, the evidence of record shows that the appellant is not an eligible payee under 38 U.S.C.A. § 5121(a) and 38 C.F.R. § 3.1000(a), as she is not the Veteran's spouse, "child" (as defined by regulation), or dependent parent.

Under 38 U.S.C.A. § 5121(a), the only category under which the appellant may fall is that of 38 U.S.C.A. § 5121(a)(6), or equivalently 38 C.F.R. § 3.1000(a)(5); that is, "all other cases". Under that provision, the operative rule is that only so much of the accrued benefits may be paid as may be necessary to reimburse the person who bore the expense of the last sickness and burial. 38 U.S.C.A. § 5121 (a)(6); 38 C.F.R. § 3.1000(a)(5). The Board finds that under the law governing reimbursement to the appellant from accrued amounts due a deceased beneficiary, the appellant is not entitled to payment, as there is no evidence that the appellant herself bore any expenses of the beneficiary's last sickness or burial. The appellant has specifically indicated that the beneficiary's medical and burial expenses were prepaid. All other utility bill and tax receipts and bank statements submitted by the appellant showed that claimed expenses were not for the beneficiary's last sickness or burial and are not expenses to be considered."
http://www.va.gov/vetapp12/Files2/1209749.txtThe claimant was the adult daughter of both the decased veteran and his deceased spouse but she did not fit into the 5121 regulations

This is the 5121 , 38 USC reg mentioned in this BVA decision that grew out of, as I recall, the Bonny V Principi decision.


The entire regulation has to be carefully read to determine if the surviving non spouse is a qualified recipient and if the claim for accrued was filed within one year after death.

It is a complex regulations but I bet many survivors dont know of it.

BUT, as long as the accrued benefit claim was timely filed, they should know of it, as VA would determine their eligiility based on receipt of that claim.

Because VA had my accrued benefit claim, filed over 20 years ago, I am still eligible for accrued under my pending claim and was eligible for an accrued payment under 1151, in addition to accrued payment from my Nehmer award.in 2012,

22 years after my husband had incurred that specific 1151 disability, but only because I had filed the accrued claim under 1151 20 years ago as part of my DIC application..

Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.
Note: Your post will require moderator approval before it will be visible.

Answer this question...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

  • Ads

  • Ads

  • Ads

  • Our picks

    • I already get compensation for bladder cancer for Camp Lejeune Water issue, now that it is added to Agent Orange does it mean that the VA should pay me the difference between Camp Lejeune and 1992 when I retired from the Marine Corps or do I have to re-apply for it for Agent Orange, or will the VA look at at current cases already receiving bladder cancer compensation. I’m considered 100% Disabled Permanently 
      • 20 replies
    • 5,10, 20 Rule
      The 5, 10, 20 year rules...

      Five Year Rule) If you have had the same rating for five or more years, the VA cannot reduce your rating unless your condition has improved on a sustained basis. All the medical evidence, not just the reexamination report, must support the conclusion that your improvement is more than temporary.

      Ten Year Rule) The 10 year rule is after 10 years, the service connection is protected from being dropped.

      Twenty Year Rule) If your disability has been continuously rated at or above a certain rating level for 20 or more years, the VA cannot reduce your rating unless it finds the rating was based on fraud. This is a very high standard and it's unlikely the rating would get reduced.

      If you are 100% for 20 years (Either 100% schedular or 100% TDIU - Total Disability based on Individual Unemployability or IU), you are automatically Permanent & Total (P&T). And, that after 20 years the total disability (100% or IU) is protected from reduction for the remainder of the person's life. "M-21-1-IX.ii.2.1.j. When a P&T Disability Exists"

      At 55, P&T (Permanent & Total) or a few other reasons the VBA will not initiate a review. Here is the graphic below for that. However if the Veteran files a new compensation claim or files for an increase, then it is YOU that initiated to possible review.

      NOTE: Until a percentage is in place for 10 years, the service connection can be removed. After that, the service connection is protected.


      Example for 2020 using the same disability rating

      1998 - Initially Service Connected @ 10%

      RESULT: Service Connection Protected in 2008

      RESULT: 10% Protected from reduction in 2018 (20 years)

      2020 - Service Connection Increased @ 30%

      RESULT: 30% is Protected from reduction in 2040 (20 years)
        • Thanks
        • Like
      • 58 replies
    • Post in New BVA Grants
      While the BVA has some discretion here, often they "chop up claims".  For example, BVA will order SERVICE CONNECTION, and leave it up to the VARO the disability percent and effective date.  

      I hate that its that way.  The board should "render a decision", to include service connection, disability percentage AND effective date, so we dont have to appeal "each" of those issues over then next 15 years on a hamster wheel.  
        • Like
    • Finally heard back that I received my 100% Overall rating and a 100% PTSD rating Following my long appeal process!

      My question is this, given the fact that my appeal was on the advanced docket and is an “Expedited” appeal, what happens now and how long(ish) is the process from here on out with retro and so forth? I’ve read a million things but nothing with an expedited appeal status.

      Anyone deal with this situation before? My jump is from 50 to 100 over the course of 2 years if that helps some. I only am asking because as happy as I am, I would be much happier to pay some of these bills off!
        • Like
      • 18 replies
    • I told reviewer that I had a bad C&P, and that all I wanted was a fair shake, and she even said, that was what she was all ready viewed for herself. The first C&P don't even  reflect my Treatment in the VA PTSD clinic. In my new C&P I was only asked about symptoms, seeing shit, rituals, nightmares, paying bills and about childhood, but didn't ask about details of it. Just about twenty question, and  nothing about stressor,
  • Ads

  • Popular Contributors

  • Ad

  • Latest News

  • veteranscrisisline-badge-chat-1.gif

  • Fund HadIt.com

    $5,723.00 of $1,500.00 Donate Now
  • Advertisemnt

  • 14 Questions about VA Disability Compensation Benefits Claims


    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
    Continue Reading
  • Most Common VA Disabilities Claimed for Compensation:   


  • Advertisemnt

  • VA Watchdog

  • Advertisemnt

  • Ads

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

  • Create New...

Important Information

{terms] and Guidelines