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Standing in on disability claim for a deceased unmarried veteran


Lancerboo1990
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I am the only survivor of my father who was an unmarried veteran of Vietnam from 66-68. He had an ongoing disability appeal that he had been working on for years prior to o his death in 2010. Strangely enough about 6 months before his death something from the military showed up that supposedly had been lost and unable to produce for years. It was a exit hearing exam that my dad had requested multiple times but they always claimed it was lost. Anyway they had used this as their basis for denial of his disability. Anyway upon examination of the hearing exam it was obviously forged by the dates on the exam and the dates the doc's signed it. My dad had always insisted he was never given this test on his exit from the army. So shortly after my father died from lung cancer in 2010 ( 100 % service connected presumptive) I received a letter addressed to him stating that they had received notice of his death and because if this his appeal was dismissed and no further action was allowed . I wrote in and requested to be a stand in in his case but shortly after got an answer stating that only spouses were allowed to stand in and therefore it was denied and closed . Is this true ? Is there any instance where another can stand in if the veteran isn't married? I was the only survivor and received his service member life benefit and he died while 100% percent service connected and died in a car facility. I had to fight them for 4 years for funeral costs . He had been divorced for about 7 years at the time of death and was boots on the ground from 66-68. Thanks  G

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You need to file a "substitution of claimant", and you should be able to do that "provided that" you are an heir and mentioned in his will.  While I have not done this, it may be something that you need an attorney for.  

As far as the claim goes, once you are "substituted as the claimant", you can submit new and relevant evidence under 38 cfr 3.156 c, which is lost service records.  

 
Quote

 

§ 3.156 New evidence.

New evidence is evidence not previously part of the actual record before agency adjudicators.

(a) New and material evidence. For claims to reopen decided prior to the effective date provided in § 19.2(a), the following standards apply. A claimant may reopen a finally adjudicated legacy claim by submitting new and material evidence. New evidence is evidence not previously part of the actual record before agency adjudicators. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

...........

(c) Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

 

It may be in your best interest to solicit the services of an experienced Veterans attorney "unless" you have the time, money, and effort available to do it yourself.  

A VSO, in my humble opinon, is not going to be productive for you.  

You will need to file a substitution ASAP:  https://www.va.gov/vaforms/form_detail.asp?FormNo=21P-0847

Then you could get an attorney, or if you get one right away he could file it for you.  Again, you want a NOVA attorney familiar with VA benefits and substitution.  

 

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Since he was a Vietnam Veteran ,incountry, and had lung cancer -(in most cases but not all)i

Lung cancer is  an AO presumptive,

the Nehmer COurt Order provides for next of kin awards on a successful AO presumptive claim.*****

explained below

As Broncovet stated you need to become the substitute with the form he linked you to.

ROs  and BVA have denied lung cancer claims from Vietnam Vets due to the type of cancer -(it must be of a respiratory nature)as well as denied due  to a very  long period of time after service when the cancer developed.

Can you scan and attach here their last denial as to their rationale and the Evidence list they used?

Cover his C file and name prior to scanning it.

I am confused with your post:

I was the only survivor and received his service member life benefit and he died while 100% percent service connected and died in a car facility."

*******I am a Nehmer widow- my Retroactive award was based on accrued benefits due to the Nehmer Court Order and also due to claims I had filed as a surviving spouse.

Did your father have any other claims pending when he died?

Was the 100% he received  directly due to the SC Lung Cancer?

"I received a letter addressed to him stating that they had received notice of his death and because if this his appeal was dismissed and no further action was allowed . "

Can we also see that letter? Redact C file # and name, address prior to scanning it.

When he received the 100% award, did he also receive a retroactive payment?

My main question is what specific kind of VA benefit  or potential retroactive amount are you seeking?

If we can see the docs above, we can help more.

There is a lot to this type of situation. Lots of Nehmer info here as well.

 

 

 

Edited by Berta
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This is the Nehmer Court Order:

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

It defines Next of Kin, and Child ,etc etc- I have probably read it a thousand times since 1991-the initial Nehmer Order.

I cannot tell if you are a member of the class action, this is why we need to see those documents----

and what type of claim decision you are seeking.

The VA changed their forms for DIC, accrued, etc for survivors  not long ago, but I am not posting the form here because I don't have a clue on what you could claim under the substitution regulations.

The redacted scans of their decision will help.

 

 

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Thanks for correcting me, Berta.  Yes, if your father was a Nehmer Vet (Vietnam), you should be able to get NVLSP to represent you without cost to you.  Im pretty sure NVLSP won a settlement for Nehmer Vets which includes attorney fees to represent Veterans in a fight against VA for Nehmer benefits.  So, contact NVLSP, you may well qualify for no cost legal representation by NVLSP:   

https://www.nvlsp.org/what-we-do/class-actions/nehmer-agent-orange-lawsuit

 

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Broncovet- Yes NVLSP won the Beverly Nehmer case- a class action case-(us widows are relentless!)

That Class action  has altered the lives of thousands and their family members.

NVLSP does not handle claims, except for AO claims , to check to see if the EEDS are correct,for any vet or widow who had a AO presumptive denied and deemed NSC in that past, but now falls under the Nehmer court order.

BTW all the link says:

"Vietnam veterans and their survivors who believe that VA has not assigned them the correct effective date for the award of benefits for their Agent Orange-related disease can contact NVLSP’s Nehmer team at the team’s toll-free hotline number – 855-333-0677."

------------------------------------------------------------------------------------------------------

That applies to all 12 mile coastal limit (Vietnam)  Blue Water Navy veterans and I posted their email addy for those cases here in the BWN info at AO forum. They reviewed my EED  and those EEDS of many here after 2010 presumptives were added.

I have no idea if the VA awarded the deceased veteran ,in this recent post,in his lifetime,an accrued benefit under Nehmer.

I have no idea at all if the member here would even be considered  a member of this Class Action.

I don't mean to correct you ,in any negative way, it is just that I have had a relationship with NVLSP since 1991 and AO has been the most important issue of my life.... long before my husband and I had a dog in the fight.

When the thousands of BWN vets find out ( and their survivors) they are eligible for AO benefits ( it is not national news yet)we might get deluged with BWN vet claims and I will focus solely on that here if we do.

I posted a lot already that they will need.

I wrote the first tentative BWN AO Amendment  about 15 years ago, it was tweeked many times and they finally WON!

(I have been a member of the original BWN Vietnam Vets Association for about 15 years as well ( John Rossie's group) 

VA is definitely working on awards for many BWN vets whose EEDS can be checked by NVLSP ( II have their contact lawyer too who already has clarified my questions on those claims.

They are BWN vets denied in the past for AO presumptives, whose ship logs and/or the VA AO Ships lists I have posted  here in our AO forum can  now can get an AO rating and a Very favorable EED as well as their survivors can get ALL accrued.

 

 

 

 

 

 

Edited by Berta
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To clarify- NVLSP does not handle individual claims per se- they are involved in many Class Actions for Veterans and

https://www.nvlsp.org/what-we-do/individual-representation/

clarifies the type of individual representation they handle.

"Since the CAVC was created in 1988, NVLSP has represented thousands of veterans before the Court - all at no charge to the veteran."  Per link above.

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Not to be argumentative Berta, but yes, the NVLSP does represent individual Veterans, provideed that the Veteran's meet the NVLSP criteria.  The website which follows shows what (individual Vets) need to qualify for reprentation by NVLSP:

https://www.nvlsp.org/what-we-do/lawyers-serving-warriors/assistance-applying-for-combat-related-special-compensation?gclid=Cj0KCQjw9tbzBRDVARIsAMBplx8pVhvOwlagE1Equrk5R__T6cq25oZkGaCoquuTdMOE2OZ6LCcOpZkaAjQBEALw_wcB

There are several categories, CRSC, MST, PTSD and other instances on that page, all of which the NVLSP will consider representing you, provided that you meet NVLSP criteria.  One thing which the NVLSP is mandantory:  DD214.  No DD214, no representation.   I was personally represented by NVLSP as I simply asked them for assistance and they felt I met the criteria.  No, IM not a Nehmer, nor am I a Vietnam (in country) Vet.  

Edited by broncovet
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I certainly stand corrected Broncovet-The Lawyers for Warriors program has a vast amount of lawyers to help with claims.All pro bono.

Is NVLSP the ones who repped you recently when you finally WON???

I think this member should take your advice:

Yes, if your father was a Nehmer Vet (Vietnam), you should be able to get NVLSP to represent you without cost to you."

Phone: 202.265.8305
Email: info@nvlsp.org

 

Edited by Berta
added contact info
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NVLSP represented me, in 2014.  (They won a remand, but the remand at the CAVC resulted in virtually no additional benefits).  The NVLSP sent me a VBM (2014) because I asked them.  

(I love it when scripture is validated, as this happened.  "Ask and ye shall receive" Mat. 7:7-8)  

Most recently, I was represent by Chris Attig.  He, too, won a remand.  Upon remand, I hired Cliff parker to do a voc rehab assesment, under advisement from Chris Attig.  It was a best case senario for me, because I represented myself at the board, and eaja paid all Chris Attig's fees.  

The only thing was, VA "shorted" my retro 5 figures.  Per your suggestion I have contacted the finance department of my VARO (about 2 weeks ago), and Im pretty sure this will work out for me.  I did my homework, and created a "spreadsheet", showing, each month, how much retro was due.  (My DAV guy suggested that).  I have a DAV rep now, mostly because its tough to get rid of a POA "other than" signing up a new one.  

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GOOD for you- a spreadsheet is an excellent idea!

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 Note:

 Please ,you guys might want to put down what all these Abbreviations are?

most newby veterans that come to hadit and read these post do not know the meaning of these.

The NVLSP sent me a VBM  & Others 

And explain what a spreadsheet is?

more experience members such as ourselves knows these meanings but a newby member will not know...90%of the time and only get confused.

We must remember new veteran members that join hadit don't know the meaning of a lot of VA Abbreviations 

It just helps if you can explain what these Abbreviations mean.To save confusement.

Remember at one time in our life we never knew or had a good guess as to what all these Abbreviations Mean.

 

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https://community.hadit.com/topic/15978-acronyms-initialisms-and-abbreviations/

The list might not contain some newer acronyms.

NVLSP National Veterans Legal Service Program

VBM Veteran Benefits Manual by NVLSP

Acronyms also can be googled.

A new member used 2 acronyms I never saw before- I googled them , added military to the search, and they popped up.

Anyone here with Win 10 or Office 365, a current  Word  app., Microsoft Excel ,etc tc should have a spreadsheet program.This shows some spreadsheets:

https://www.google.com/search?q=spreadsheet+app&rlz=1C1CHBF_enUS695US695&tbm=isch&source=iu&ictx=1&fir=UcFW-t25AcHaQM%3A%2Ce361p3GO9wBJVM%2C_&vet=1&usg=AI4_-kQ-pZLsV7OWDjrehWYXNpcvCHzatQ&sa=X&ved=2ahUKEwiHltXD7K3oAhUaZc0KHawcARQQ_h0wAXoECAwQBA&biw=1707&bih=783&dpr=1.13#imgrc=UcFW-t25AcHaQM:

 

 

Edited by Berta
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Thanks, Berta, I knew there was an "acronym page", but most of us pretty much know them.  Of course, Buck is correct, and new members sometimes dont get it for a while.  I appreciate you posting the acronym page.  I agree with everything you said, but will add that you dont "have" to purchase MICROSOFT's brand of office to get a spread sheet.  There are several "open office" programs that can be downloaded for free.  (I use the free version, myself).  Here is ONE place (there are others) you can download free "open office" products.  

https://www.openoffice.org/download/

In a nutshell, there are two major "types" of software.  

1.  Proprietary software, such as Apple, Microsoft, etc.  There is usually a charge for these.  

2.  "Open" software, such as Android, Linux, Open Office.  These are free.  

      I would mention that the "pay" version is "not necessarily" better.  Example:  Windows has software for phones, but Android was so much better, Android phones have all but wiped out "Windows" phones.  Most places no longer even sell Windows phones.  

      I personally highly recommend "open" software.  I use Linux Mint for my operating system and LibreOpen Office for things like "Libre open office Writer" (its the equivilant of MS Word) and Libre Open office Calc,(aka "spreadsheet)  which is the (Microsoft Excel equivalant).  Its my opinion (and I have used both the Microsoft version as well as the open versions) that, for most purposes the office (free) is just as good.  I dont deny that someone who has spent considerable time learing, say Microsoft Office Excel, may not want to switch as there are differences.    However, Microsoft changes their software every 4 or 5 years, so you cant pretty much just learn it one time and expect not to have to learn anything else for 30 years.  

Edited by broncovet
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