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41 Years Of Retro Under Cue


Berta

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  • 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

"ORDER

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!

http://www.va.gov/vetapp00/files1/0006555.txt

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

CUE is NOT a one shot deal.

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  • 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.

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  • 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.

http://www.law.cornell.edu/cfr/text/38/3.1000

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..

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