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

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    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

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Berta

ACCRUED Benefits for survivors

Question

This has cropped up here recently and I wanted to bring the subject up, although it is searchable here.

The VA fact sheet is basic:

"What Are Accrued Benefits? Accrued benefits are benefits that are due to the beneficiary based on an existing decision on a claim for benefits or evidence in the Veteran’s claim file at the date of death, but not paid prior to death."

http://www.benefits.va.gov/BENEFITS/factsheets/general/accrued.pdf

There are explained in more detail here:

https://www.hillandponton.com/va-benefits-for-qualified-survivors-accrued-benefits-and-substitution-basics/

Accrued benefits derive from a pending claim, and depend on evidence in the Claims file at time of the veteran's death.

Nehmer III ( August 2010) is the only exception:

https://www.law.cornell.edu/cfr/text/38/3.816

The full explanation of accrued under Nehmer III is found under 38 CFR 3.816 (f) (iv)

And the full explanation of the most unique part of Nehmer III (august 2010) is found here at hadit under a search regarding Footnote One, specifically

in many posts I made to include this one:

"Rick Spataro, Head Nehmer lawyer of NVLSP, explained Footnote One to me this way in email as soon as the Regulations were being prepared for the 3 new AO presumptives in 2010:

 

“As for your second question, if the VA should have coded IHD in a rating decision, the claim that resulted in the rating decision could be considered a claim for benefits for IHD under footnote 1 of the Final Stipulation and Order in Nehmer. It basically depends on the timing of the claim, rating decision, and evidence received while the claim was pending. It may also depend on the rules in the Manual M21-1 regarding coding that were in effect at the time of the claim.

Typically, though, the following example would be accurate: A veteran filed a claim for SC for a low back disability on May 1, 1990. The VA obtained medical evidence showing a diagnosis of IHD in the development of that claim. The VA issued a rating decision on April 1, 1991, but does not code IHD (list IHD as “NSC” on the code sheet of the rating decision). Under footnote 1, since the condition should have been coded in the April 1, 1991 decision, the May 1, 1990 claim should be considered a claim for SC for IHD under Nehmer. “

As I mentioned here before I was a Footnote One Nehmer claimant."

I have no idea yet on whether the VA will add new presumptives to the AO list. We should all know by Novermber .

I don't know if there will be a Footnote One scenario if there is a Nehmer IV. In any event , I can explain it all here when and if it happens and will access Rick Spataro ,if we need a further exdplanation , and I will attach his email response here.

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Berta posted, from Rick Spartaro:

Quote

A veteran filed a claim for SC for a low back disability on May 1, 1990. The VA obtained medical evidence showing a diagnosis of IHD in the development of that claim. The VA issued a rating decision on April 1, 1991, but does not code IHD (list IHD as “NSC” on the code sheet of the rating decision). Under footnote 1, since the condition should have been coded in the April 1, 1991 decision, the May 1, 1990 claim should be considered a claim for SC for IHD under Nehmer. “

When Rick Spartaro talks, I listen.  With a possible exception of Mr. Ken Carpenter, its very difficult to find a more knowledgeable Veterans attorney than Mr. Spartaro.   He is the chief attorney at NVLSP, and helps author the VBM.  However, while I agree with Mr. Spartaro's statement, posted above, this would appear to apply to all claims, not "just" Nehmer when the VEt timely appeals the effective date(s).  

In other words, I beleive the effective date is the later of the facts found or the Veterans "first" claim for that benefit.  It isnt the Veterans fault the Vet applied for benefits and the VA, for whatever reason, blew the Veteran off and never adjuticated the issue but simply put it coded as "NSC" Often the VA tells the Vet, "re apply".   Its a violation of 38 CFR 3.103, where the VA owes the Veteraan a written decision along with a reasons and bases for decision.    While the VA gets away with allowing an absolutely "indefinate" amount of time to process the claim, I still think this claim is pending and a "closure", or the VA issuing a decision on another issue and coding this one "NSC".  If the claim is "pending", then, as long as the doctor "finds facts" that are consistent with the date of claim, this earliest effective date should be the effective date.  However, watch Va pull a fast one, here.  If you re apply, then VA will often use the new effecitive date and "forget" your claim was already pending when assigning an effective date.  

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Adding to this, I think what Mr. Spartaro is saying is there there is a claim for IHD because its a presumptive, and the Vet need not apply for it specifically.    In other words, the effective date would be the "facts found", because the effective dates are determined by Nehmer class.  Maybe Berta can chime back in and explain "footnote 1".  

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I posted another Footnote One topic today in the AO forum , under Footnore One Nehmer.

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