Questions on DIC

[namvet6567]

Trying to help a spouse who was separated from her 100% P&T husband, for 10.5yrs, at time of his death.  Never divorced as reconciliation was a consideration.  They paid her his final check but then denied her DIC.  He died in early 2020 at a VA contracted nursing home in FL.  VA never notified her of his death.  Also tried to look up m21-1 but found the VA may have discontinued it??????  Thx

[Berta]

Flip- it sure is an interesting question-on SSDI and CUE-and technically I proved that SSA had committed a clear and unmistakable error in their initial award to my husband.

The initial award was for his 1992 1151 stroke.

What I mean is this-he had listed his disabilitis as 30% SC for PTSD and the stroke was T & P, per the evidence I had sent to them ( the VA had not yet determined his two pending claims- one was for a higher PTSD rating and one was under 1151 for the stroke- no rating in his lifetime.

He was surprised that the SSDI award did not mention the PTSD at all.

I spent a whole day at the SSA office, and asked them if I could read their disability manual- they said yes, but it was like getting the VBM from NVLSP- if one has never read the VBM before, it is OVERWHELMING-but I was determined to see if the SA had broken one of their mandated regulations.

I found what I needed, they allowed me to copy a few pages and I prepared the reconsideration request that was based on a violation  their own regulations.

SSDI ,at that time, and I have no idea if this changed- probably not- was supposed to consider every disability an applicant had listed on their SSDI application.

Although my husband was only at 30% for PTSD and had no rating yet on his stroke,under 1151,

I knew my husband had a good case, but we wasted our time at the lawyer's office because he would not even consider the evidence I had for the higher SC rating.But hopefuly he meant what he said- and would view PTSD claims differently in the future.

The result of the reconsideration ( the stroke EED had been August 1992)

as a SSDI award solely for his PTSD with Nov 1, 1991 as the EED, thus the $ 18,000 retro SSA.

After he died the RO refused to obtain the SSDI information. Of course I prevailed and I got it.

I was the claimant at that point and he had incurred considerable other VA PTSD records in the two years after his stroke, regarding PTSD.

The VA then ,almost 3 years after he died, awarded him 100% P & T for PTSD postthumously, and also , when I won my wrongful death case with the OGC, they cncurrd with the 1151 claim and awarded me DIC under 1151.

I subsequently have had 2 additional awards for direct SC death both on his malpracticed conditions- DMII due to AO and IHD due to AO.

My long point here is Every government entity we deal with such as VA and SSDI, have manuals similar to M21-1MR and also VA has a separate Physician;s Guideline M21 version.

If they violation those guidelines they have committed what we call CUE if the error was detriment to the veteran (or civilian in many cases).

At VA aclaimant can file a CUE at any time- no deadlines at all.

But I have no idea what the SSDI regulations reveal on that.

I bet their Manuals are on ine these days- they werent when I prepared my husband's reconsideration request.

NOTHING is impossible.

I rattled this off before here many times- but it might help somene out there today-

After dealing with discriminatin complaints ( 17 of them) for years.under the so called Vietnam Veterans Rehabilitation Act, the ADA became law of the land.ADA ( Americans with diabilities Act.)

I had already prepared myy husband's complaint with evidence-I had collected on the Federal Contractor who discriminated against him.

I waited for the loocal Post Office to open that day the ADA became law, and about 3 -4 months later the main ADA lawyer called and told me my husband had won the first ADA case here in NY and the Federal Contractor would have to be contacted to settle with him.They settled.

At that time I knew of two other Vietnam Vets who had been discrimnated against by the same place-they too had filed complaints with DOL, and lost those cases.

The Vietnam Veterans Rehabilitation Act was a useless document, that employed hundreds of DOL people to simply deny those complaints,filed under that Act  and I helped my husband file 17 complaints aainst them.They all contained evidence I again had to re copy for the ADA complaint.

Neither veteran however was willing to file under the ADA.

They could have used some of the evidence I had- I had proved this Federal Contractor had hired only 2 disabled veterans in many years, and many disabled vet applicates never even got an interview  and one they fired- one of the vets I knew-who had given them 19 1/2 years of service.

They didnt need a lawyer to file under ADA and it only cost me gas money to Corning SSA , xerox copy fees, and priority mail postage. 

But they had given up.

We must NEVER GIVE UP when we are RIGHT!

The ADA has changed ,with amendments , and has gotten stronger since those days, when my husband won, and it is explained here:

https://www.eeoc.gov/publications/ada-your-responsibilities-employer

https://www.eeoc.gov/publications/ada-your-employment-rights-individual-disability

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[namvet6567]

On 9/12/2021 at 7:04 PM, namvet6567 said:

Trying to help a spouse who was separated from her 100% P&T husband, for 10.5yrs, at time of his death.  Never divorced as reconciliation was a consideration.  They paid her his final check but then denied her DIC.  He died in early 2020 at a VA contracted nursing home in FL.  VA never notified her of his death.  Also tried to look up m21-1 but found the VA may have discontinued it??????  Thx

This should cover it.  We'll use CUE, 38CFR4.6 along with the help I've gleaned here from all you folks. Thx.

 

CFR § 3.53 Continuous cohabitation.
(a) General. The requirement that there must be continuous cohabitation from the date of marriage to the date of death of the veteran will be considered as having been met when the evidence shows that any separation was due to the misconduct of, or procured by, the veteran without the fault of the surviving spouse. Temporary separations which ordinarily occur, including those caused for the time being through fault of either party, will not break the continuity of the cohabitation.

(b) Findings of fact. The statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. If the evidence establishes that the separation was by mutual consent and that the parties lived apart for purposes of convenience, health, business, or any other reason which did not show an intent on the part of the surviving spouse to desert the veteran, the continuity of the cohabitation will not be considered as having been broken. State laws will not control in determining questions of desertion; however, due weight will be given to findings of fact in court decisions made during the life of the veteran on issues subsequently involved in the application of this section.

[41 FR 18300, May 3, 1976, as amended at 59 FR 32659, June 24, 1994]
 

[Berta]

Her statement might well be enough:

https://www.va.gov/vetapp19/files2/19108483.txt

[namvet6567]

On 9/16/2021 at 10:20 AM, pacmanx1 said:

Very good and interesting question. As far as I know and if anyone has better insight, please correct me but from what I found out is that the SSA goes by the EOD (ESTABLISHED ONSET DATE), but they will only go back as far as twelve months prior to your last application. That means if you applied in 2009, get denied by an ALJ in 2011 and then file a new application in 2012 and then it takes the ALJ (ADMINISTRATIVE LAW JUDGE) to get your claim in 2014 the SSA will only go back as far as 2011. 

In some ways the SSA is like the VA whereas, you can file a claim in 2009 and it goes all the way to an ALJ and gets denied but told you can file a new application. Then when  you file a new application in 2012 and wait another two years and then finally win your claim but the new decision will not reverse the old ALJ decision  even though they may state that your EOD was 2009, they will not back pay, or retro pay that far. The 2011 date is twelve months prior to your last application and the SSA will not back/retro pay any further.  If I am wrong or off, please correct me.

When you won your SSDI, what did your attorney say about the effective date or the EOD?

My atty was happy with the date, as she got here full pay, allowed by SSDI.  I was happy at the time.  Previously whenever I got denied either at the VA or SSDI I would file a new application, just in case.  

[namvet6567]

So this is what I got from my group member:   When a claimant files a disability claim and is initially denied they have appeal rights. In some reprocity states like NH their case goes to the ALJ(JUDGE) if the claimant wishes . Then any facts or evidence not submitted or discovered is reviewed. That applies to about 5 US States for reprocity. Maine and VT does not apply. Those states they have to submit a recon(reconsiliation) claim. Which is one DDS reviewer reviews anothers work. If that claim is denied then it also gets the appeal rights to see the judge. In either case if the ALJ disapprove their cases appeal rights are offered whether in person or on CC TV are offered to forward to the Appeals Council in Falls Church VA. That is where one judge reviews another judges work. Each time any new evidence or undiscoverable evidence arises is reviewed. The final step is appeals rights to go to the States Supreme Court to sue SSA.  By this time it takes numerous years...Sometimes 5 or more years. Hope this helps...

 

So it looks like I'm going to pursue my claim . . . 

[pacmanx1]

There is a time limit as to when an applicant can file for a review of their decision. I may be wrong, but I think they only give you about 60 (sixty) days from your decision and that is the last/final stage.