Call From Amc - A Bit Puzzled

[free_spirit_etc]

I am a bit fuzzy about what is going on with my claim now. I had my Board Hearing September 3, 2013. The BVA sent a decision November 19, 2014 grating service connection for the lung cancer for accrued benefits purposes, and granted lung cancer as the cause of my husband’s death for DIC purposes. I then received a letter from Chicago RO telling me they had received my claim for benefits.

I emailed Undersecretary Hickey March 5, 2015 asking to check on the status of my award. She responded she would have the director of the Chicago RO find and complete my appeal ASAP. The director then emailed me and told me she would be out of town, but the assistant director would be contacting me.

The assistant director emailed me March 11 and told me benefits had been awarded that day, that I should receive my award letter in 7 to 10 days, and to let her know if I didn’t receive it within that time-frame and she would follow up.

I emailed her on March 25^th letting her know I had not received my letter yet. She has not responded, by today I received a call from the AMC in Washington telling me they made a decision on my claim March 10 and a letter was mailed March 27. She said the BVA sent my appeal to them to process. She also said they will now send their decision to the Regional Office.

So I am confused that the RO has been following up on my claim, if it was at the AMC in Washington. I also wonder what wait is involved now for Chicago to do whatever they are supposed to do with the claim.

[free_spirit_etc]

Besides that, I am looking for some clarification. The woman at the AMC said they awarded accrued benefits, DIC, and Educational Benefits.

At first she told me my entire retro was $14,000 something. I told her that seemed very low since I am supposed to receive DIC back to 2007. She checked and called me back and said the amount she gave me was for accrued benefits only, and that I would also get a separate retro amount for DIC.

Now I am trying to figure out what I should get. It is my understanding that for DIC, I should get the amount my husband would have received for the month of death (Feb 2007) since it is more than the DIC, and then the basic rate for DIC the remainder of the time.

It is also my understanding that my husband’s accrued benefits should start the first full month after the month he opened his claim and end the month before his death (since the month of death payment is awarded to me as his widow).

I am also assuming the $218 / $225 he received for his 20% service connection during those months would be deducted from the 100% award for his cancer for those months.

What I am wondering is:

1. If I should receive the accrued benefits at the rate of a veteran and spouse for that time period (rather than veteran alone). I was not established as a dependent at the time of his death, as they don’t have dependent benefits for 20% disabled. However, there was evidence in his file as of the date of his death that he was married, as I wrote a Statement in Support of Claim (and signed it as his wife) and some of the medical records refer to his wife.

2. Since my husband had his retirement pay reduced by the amount of his 20% disability, but 100% disability was eligible for concurrent receipt in 2006 / 2007, will DFAS refund the amount they withheld from his pay during the time he is now considered 100%?

[free_spirit_etc]

And another question is: I asked the woman from the AMC about the service connected burial payment. I already got the non-service connected burial payment. The woman at the AMC told me I would have to file a new claim for the service connected burial.

But my records show I was awarded $300 for my husband’s funeral the year of his death. Then I was awarded $300 for his burial November 2011. (For some reason, it took a while to convince the RO I buried my husband).

I appealed that decision November 2012, appealing the fact that the decision indicated the $300 payment represented a total grant of all benefits sought on appeal. And I specifically stated “The decision also indicates that the reimbursement is for the burial of a veteran whose death is not service connected. As whether my husband died from a service connected condition has not been finally decided, I request to preserve the right to receive the service-related death burial benefit for my husband.”

I have not received a Statement of Case on this. But instead of opening a new claim for service connected burial, can’t I just ask the RO Director to have them issue a Statement of Case on my 2012 appeal?

Edited March 30, 2015 by free_spirit_etc

[Pete53]

The AMC often times returns a claim back to RO to finish with their instructions.

[free_spirit_etc]

Thanks Pete. I guess I will see where it goes from there.

When I get some time, I will research for some more info on the other stuff.

I would like to get this burial claim resolved without taking a lot more time.

They have evidence my husband dies, had a funeral, and was buried. Now they have evidence that his death was SC. I shouldn't have to start all over again on a burial claim. It would even save the VA a lot of time to just say, "Yes. She was paid for a non-SC funeral / burial. The death is now SC. Pay her the difference between an non-SC death and an SC-death" rather than drag this out for a long time.

[Berta]

Gee I was looking all over for what you posted here yesterday....glad I found it today.

"At first she told me my entire retro was $14,000 something. I told her that seemed very low since I am supposed to receive DIC back to 2007. She checked and called me back and said the amount she gave me was for accrued benefits only, and that I would also get a separate retro amount for DIC."

They make mistakes on accrued amounts....but there should be a audit statement in the award.

(They also forget stuff in the audits. forgot over 40 thousand they owed me in one of my audits)

"It is also my understanding that my husband’s accrued benefits should start the first full month after the month he opened his claim and end the month before his death (since the month of death payment is awarded to me as his widow)."
That is how I understand it as well.
Prior to Bonny V Principi they only paid 2 years of accrued.Now they pay all, if the accrued complies with the Bonny decision ( 38 CFR 5121 I think-I will have to look that up)
Under Nehmer however they must pay ALL accrued as well.

It is always possible an accrued award involed the Fenderson decision.....
staged ratings, more on that here under Fenderson topics.

?I am also assuming the $218 / $225 he received for his 20% service connection during those months would be deducted from the 100% award for his cancer for those months."

That is correct
"1. If I should receive the accrued benefits at the rate of a veteran and spouse for that time period (rather than veteran alone). I was not established as a dependent at the time of his death, as they don’t have dependent benefits for 20% disabled. However, there was evidence in his file as of the date of his death that he was married, as I wrote a Statement in Support of Claim (and signed it as his wife) and some of the medical records refer to his wife."

I am not sure on that. will search for the answer. Maybe someone here knows if they pay dependency rate for 20% SC.

. "Since my husband had his retirement pay reduced by the amount of his 20% disability, but 100% disability was eligible for concurrent receipt in 2006 / 2007, will DFAS refund the amount they withheld from his pay during the time he is now considered 100%? "

WOW, that is a good question..........I really hope others chime in on that.....too. I forgot he was a retiree....

I dont know how that might affect the accrued amount....

Of course DFAS would know ( I hope)
http://www.dfas.mil/

Could this affect his past IRS taxes? Not sure there either.

I will see what else I can find out Free-Spirit and I sure appreciate that you got the points I had made, regarding my current issues.

You are such a valuable asset to us all here!

They have supposed to make the burial claim issues go smoother than the olden days.....

I hope that is true.

[free_spirit_etc]

Berta -

Thanks so much! You have been such a blessing and and inspiration for those of us who followed behind along the trail you blazed!

I am glad to know there will be an audit statement -- so I can figure out what they figured out. LOL

Maybe I can find some info on DFAS. I don't think it would effect taxes anymore because you only have three years to amend your taxes.

Yes, I read the the burial claims are easier now. They aren't supposed to put you through all of the hoops like before -- BUT, it should have been easy the first time - and they messed that up in a variety of ways. (At least I didn't send them my husband, like you did...lol)

I wondered about SMC and dependent benefits. I am not sure there would be enough evidence in his file as of the date of his death to establish SMC. But there should be enough in his file to establish that he had a wife, even if he didn't have me on as a dependent. But they don't pay for dependents until you are at 30%.

This is something interesting on accrued benefits on Attig's site:

http://www.attiglawfirm.com/move/veteran-va-survivor-accrued-benefits/

3) Based on the evidence in the record at the time of the Veteran's death, the Veteran was entitled to monthly disability compensation for a service-connected illness or condition or disease. 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.

Also - for deaths after October 10, 2008, the surviving spouse can sometimes substitute on the claim, and continue to add evidence to the file for accrued benefits.

http://www.attiglawfirm.com/shoot/veteran-survivor-accrued-benefits-va/

If the Veteran dies on/after October 10, 2008, an “eligible person” may substitute as the Veteran for purpose of processing the Veteran’s "pending claim" to completion. As with any statute, interpretations of certain words and phrases are vital. An “eligible person” is defined, in the Veterans Benefits Improvement Act of 2008, as “a living person who would be eligible to receive accrued benefits due to the Veteran under 38 U.S.C. § 5121(a). The “eligible person” has one (1) year from the death of the Veteran to file a Motion for Substitution. When and where and how an “eligible person” may substitute for the Veteran is rather complicated and tricky, and beyond the scope of this informational blog post. A good case to read, if you are so inclined, is the Court of Appeals Decision in Breedlove v. Shinseki, 24 Vet.App. 7 (August 10, 2010); while not the most artfully written decision, it does provide a moderately accessible primer into the law of substitution.

Edited April 1, 2015 by free_spirit_etc