Is a VSO organization held responsible for not filing a NOD when requested and received

[Persistant]

I am a surviving spouse of a VietNam veteran receiving DIC.  In the request for DIC I also requested any back payment due my late husband and because there wasn't a formal claim made by him prior to his death it was denied.  The DIC was approved.  There were additional facts about his health that we tried to add to his rated conditions, but were told by VSOs from 2 different organizations that he couldn't go above 100% and they wouldn't help us file a claim for it. We also asked the VA doctors he saw and were told they didn't know how.  He was rated for ischemic heart disease, diabetes and neuropathy....equaling 100%.  Then he went into kidney failure and was on daily dialysis at home for 5 years before passing of his heart condition. He would have at least qualified for housebound and aid and attendance in addition to loss of use of his kidneys.  I don't know what else.  After the first 2 years of treatment, VA wrote saying they would be paying for it going forward. We hadn't applied for their help.  Of course, VA had records of paying for it and it was many times referenced in his 6 month checkups with the VA doctor as well.  But as I said, no one could tell us how to add it to his rated conditions.  Several months before he passed we found out about SMC online.  We engaged a lawyer's help to determine what to claim for in the SMC tier and by the time they got the C file and reviewed it to advise us, my husband passed. They advised me to apply for additional $ owed along with my DIC form.  But beyond that they weren't involved.  After the denial, I began putting together claim information by myself.   I filed a NOD with a DAV rep, in person, at the local VA hospital to give me more time to finish.  Many months later I found out it was never filed due to a direct instruction NOT to.  The person giving that directive was in an authoritative position so it was obeyed.  No one ever told me until I called to see why VA didn't have it.  And on the phone was told what had happened.  Of course that ended my opportunity to show reason for back pay.  Also during that time there was a change in the VA procedure that they could no longer use material evidence of a condition, such as their records I referenced above, to prove they knew about the dialysis, but never put anything in the C file about it.  So then my records couldn't be honored anyway.  

 

[brokensoldier244th]

What directive is that? I get Capri records on every veteran I build a claim for because it’s required under duty to assist. I have to show proof of all attempts, and negative responses if there aren’t any. It’s been that way for years. 

[broncovet]

Sorry for your loss.

The important question is, "did you file a substitution of claimant", and, if not, you should.  

https://www.vba.va.gov/pubs/forms/VBA-21P-0847-ARE.pdf

The above form needs to be filed within a year of death. 

 

[broncovet]

If you have timely filed substitution of claimant (your attorney should have informed you of this necessity), then you should be able to get "accrued benefits". 

In regards to SMC a "claim is not necessary", (to establish effective date), but, instead, VA should have awarded same "when he became eligible for this benefit".  

If he did not get SMC, and you think he was eligible, then you should be able to get back pay.  

Im unfamiliar with "liability" as far as your VSO goes, but, if you had an attorney, then, since you can only have ONE POA, you did not officially have a VSO in the same period.  

When you signed a POA with the attorney, it automatically cancels the previous POA with your VSO.  (In reference to Veterans benefits, of course).  

I know someone who is familiar with DIC and widows benefits.  I may be able to ask this person about you.  

 

[broncovet]

Check this thread, for some answers to your question, back in 2017, which likely still apply here:

Also check this thread which probably contains some answers, too:

 

Edited December 31, 2022 by broncovet

[Vync]

On 12/30/2022 at 2:44 PM, broncovet said:

If you have timely filed substitution of claimant (your attorney should have informed you of this necessity), then you should be able to get "accrued benefits". 

In regards to SMC a "claim is not necessary", (to establish effective date), but, instead, VA should have awarded same "when he became eligible for this benefit".  

If he did not get SMC, and you think he was eligible, then you should be able to get back pay.  

Im unfamiliar with "liability" as far as your VSO goes, but, if you had an attorney, then, since you can only have ONE POA, you did not officially have a VSO in the same period.  

When you signed a POA with the attorney, it automatically cancels the previous POA with your VSO.  (In reference to Veterans benefits, of course).  

I know someone who is familiar with DIC and widows benefits.  I may be able to ask this person about you.  

 

@PersistantI wanted to start by offering my condolences on the loss of your husband. My father is also a Vietnam boots on the ground vet with some worsening health issues.

I agree with @broncoveton this. Once you hit 100%, SMC is handled in a special way. The VA relies on laws that state for regular claims, you must file a claim and state the requested benefit.  SMC, as far as I know, is supposed to be based on evidence of eligibility. Keep in mind I am not an accredited representative, but based on what I have read previously, I really hope you win.

I also had a recent situation where my VSO literally dropped the ball by saying they would do something and, without notification, completely failed to do anything. In my case, it is just a minor issue, but I am calling them out on it. A few years ago, the VA changed a longstanding policy (unrelated to my issue) which gave VSO's 48 business hours to review VA decisions and kick them back for obvious errors. The VA eliminated this policy to improve their claim completion numbers and put newer AMA claims into the new claim appeals system. Additionally, if DAV is your POA VSO, contact them and ask to speak with one of their staff attorneys. I did this with my VSO a few years back (not the DAV) and was able to get some direct answers to obvious errors that their team had missed.

Edited January 3, 2023 by Vync

[Persistant]

To further clarify, our connection to the attorney was during the last 9 months of my late husband's life and was a time of evaluation of his C file to advise us of what he qualified for in making a claim for his kidney failure (which occurred 4-5 years prior). When he passed away there was no longer a client relationship with the attorney. He did advise me to file for DIC AND accrued benefits which I did within the 1 year time limit....it was another year later (just before the time limit for filing a NOD that I gave the NOD to the DAV to file for me which I had prepared. The rep received it and said it would be filed immediately as the date limit was only a couple days away.  I found out about it not being filed almost another year later when I called the DAV to see why the VA didn't have it as ever been received.  To clarify the other question about qualifying for SMC...that should have happened when he was declared 100% disabled P&T Service Related...but we didn't know about it's existance at that time and it's written in his claim decision that they didn't consider it for him because he was gainfully employed.  HE WASN'T and hadn't been since before his first disability claim.  We included in his claim information that he was on SS Disability and was unable to work in any capacity he had training for or could be trained for. That was referred to in later claims as well in trying to get the SS decision paperwork added to the C file.  It seemed to me after his death, when I understood SMC and what had been mistakenly written in his earlier claim decision that an error like that could be fought...however submitting all the pertaining paperwork to several VA attys (including NVLSD) every one of them said if he was still alive it would be an open and shut case - easy...but because no claim was started before he died they didn't see it having any chance. 

 

Edited January 10, 2023 by Persistant