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A READ First for accrued claims from survivors


Berta

Question

http://www.uscourts.cavc.gov/documents/Quattlebaum_09-3557_published_opinion_1-5-2012.pdf

This is established VA Case Law- and works this way:

"The Board found the notion of reopening an accrued benefits claim pursuant to section 5108 inconsistent with the one-year requirement of section 5121(c), reasoning that "accrued benefits [claims] cannot be reopened once the [one-year] time period expires." R. at 7. Succinctly stated, however, we see no such inconsistency. On its face, section 5121 in no way indicates a preclusion 4 of reopening accrued benefits claims. Similarly, section 5108 on its face allows the reopening of any previously disallowed claim. Read together, an accrued benefits claim must be filed within one year after the veteran's date of death pursuant to section 5121(c), and an accrued benefits claim can be reopened upon the presenting of new and material evidence pursuant to section 5108."

and 

"In sum, as long as an accrued benefits claimant submits a claim within one year of the date of death of the veteran, the claim is timely. Once timely submitted and thereafter denied because accrued benefits are deemed not warranted, it is subject to being reopened if the claimant submits new and material evidence. Accordingly, we hold that the Board's determination that an accrued benefits claim cannot be reopened more than one year after the veteran's death is not in accordancewith law and will be reversed. See 38 U.S.C. § 7261(a)(3)(A) (Court shall hold unlawful and set aside decisions and conclusions "not in accordance with law"). B. Prejudice As noted above, Mrs. Quattlebaum asserts that she was prejudiced by the Board's misunderstanding of the law. We agree. By improperly concluding that the statutory scheme prohibited a claim to reopen a prior denial of accrued benefits, the Board did not adjudicate whether she was entitled to accrued benefits, either via the 2001 original claim or the 2006 claim to reopen, and adjudication may lead to a successful outcome for Mrs. Quattlebaum. See Arneson v. Shinseki, 24 Vet.App. 379, 388-89 (2011) (finding prejudice where error could have made difference in outcome); see also supra note 1"

Conclusion

"Upon consideration of the foregoing, the finding of the June 11, 2009, Board that an accrued benefits claim cannot as a matter of law be reopened more than one year after a veteran's death is REVERSED, and the decision of the Board denying Mrs. Quattlebaum's attempt to reopen her accrued benefits claim is SET ASIDE and the matters REMANDED for further development and readjudication consistent with applicable law and this decision."

http://www.uscourts.cavc.gov/documents/Quattlebaum_09-3557_published_opinion_1-5-2012.pdf

My husband had a Section 1151 claim and a claim for higher rating of his PTSD (at 30%) when he died.I applied for accrued and

I applied for DIC under the 1151 claim as well as direct SC DIC within the first year after he died.

Years after I applied the VA developed their 2000 VCAA enhanced DTA regs. For both claims I filed after 2000, however, the VA violated my VCAA rights twice.

In the original claims I had, I also had to support them with evidence. I didnt need or get any DTA assistance.

The result was 100& P & T for SC PTSD and DIC for 1151, with a very favorable EED,  as well as DIC as direct service connected death.

 

Same for my subsequent claims. But this is because I have been a claimant and advocate for over 24 years.And all I had 24 years ago was the annual VBM by NVLSP and a highly limited internet-the Best weapon we have for any type of VA claim.

The best place for a surviving spouse to be is here.

One claim I had, the most important one- with considerable monetary awards, in addition to my FTCA settlement, my former vet reps said -it did not have a chance.

20  NY lawyers in 1995-96 also told me my FTCA case would never succeed. Two of them were actually in the law library when a lawyer I know,due to a different situation,  asked me about my FTCA case against the VA 

I told him I won. Those 2 lawyers were shocked.

They were all wrong.  But if a survivor does not know how to use a PC or to get good info here, their claim will be doomed.

Some of us like Mrs Quattlebaum, and of course Beverly Nehmer, refused to put up the crap the VA can dish out to survivors.They know we are grief stricken and the claims process can become quite overwhelming, and the VA knows the chances of a survivor getting a good vet rep to help them is practically nil.

 

 

 

 

 

Edited by Berta
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  • Content Curator/HadIt.com Elder

Now if they would just get rid of the one year window across the board

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