Accrued Benefits

[free_spirit_etc]

I was reading through my husband's VA claims in my spare time.... And I have a question.

When we were arguing his cancer claim -- we noticed other claims that we think SHOULD have been granted. It was recommended not to reopen or claim a CUE on them until we were done with the cancer claim.. as it could pull his c-file in all different directions.

When he died this February - the only open claim he had was for the cancer.

In regard to accrued benefits -- would the only way I could present the other claims be a CUE?

There are 3 claims:

1. Right shoulder injury -- which was claimed on his original claim at retirement (1998) in which they did find something wrong with his shoulder -- but denied the claim (RO and BVA) based on the fact his SMR did not show treatment. They said he didn't have a Nexus either -- though I am not sure what type of nexus they think you should have when you claim the disability UPON discharge --after 28 years of service. But they said there was no nexus showing that the disability the found in his right shoulder during his initial C&P exam was related to the disability he claimed at retirement. We still haven't gotten a copy of his discharge physical --to see if the right shoulder is listed on that -- but wouldn't that be a Service Medical Record. I am assuming it WOULD be listed -- as he claimed it with the VA on retirement. Could this be a CUE (presumed soundness?) --and is that the only way I could persue the claim?

2. Cervical strain - He also claimed this on retirement. SMR listed cervicle strain -- but they couldn't find a current disability --( C&P 1999 )He appealed and 2002 C&P DID find a bit of damage at C-3 c-4 -- but wasn't considered disabling enough to warrant a "current disability" (even at 0 %) -- And the VA examiner stated my husband claimed it was service related --but that the c-file didn't show that it was -- (I have no idea how he came up with this) and stated he didn't think the current nondisabling disability was connected in etioligy to the service. Then the 2003 exam he had for headaches on a Desert Storm C&P stated his headaches were CAUSED by his cervical strain c-3 c-4 --(therefore not service connected -- as they were diagnosed.

Again, when you have a neck injury in SMR -- and claim for cervical pain on retirement -- and then your neck keeps hurting -- and they keep finding that the condition is worse -- it sure looks like a nexus to me.

So could this be a CUE? - or could it be considered an INFORMAL claim to reopen cervical strain that was never adjudicated (in 2003)--and as such would STILL be pending at his death?

3. Chronic Sinutitis (yes..I saw the other thread on this). On the headache claim the examiner also stated some of his headaches were caused by chronic sinus infections -- and the examiner also noted he had several incidences in service - and that his in service x-rays had diagnosed chronic sinustitis (both SMR and C&P designated the ethmoid sinuses). Again --would this be a cue? Is that the only way it could be raised for accrued benefits? or could it be a pending informal claim for Sinus Problems -- since the VA only addressed that his headaches couldn't be granted SC because they had been diagnosed and therefore were not related to Desert Storm Illness.

Kind of odd -- Your headaches can not be Service Connected because they are caused by

1. a chronic sinus condition that was diagnosed in the service and treated repeatedly

2, the cervical strain that is in your SMRs and that you have been telling us has been hurting you since your discharge from active duty

Therefore -- we deny you service connection...

???

Free

[free_spirit_etc]

I do NOT qualify for Death PENSION:

A surviving spouse may qualify for pension, compensation, or dependency and indemnity compensation if the marriage to the veteran occurred before or during his or her service or, if married to him or her after his or her separation from service, before the applicable date stated in his section.

(a) Pension. Death pension may be paid to a surviving spouse who was married to the veteran:

(1) One year or more prior to the veteran's death, or

(2) For any period of time if a child was born of the marriage, or was born to them before the marriage, or

(3) Prior to the applicable delimiting dates, as follows:

(i) Civil War—June 27, 1905.

(ii) Indian wars—March 4, 1917.

(iii) Spanish-American War—January 1, 1938.

(iv) Mexican border period and World War I—December 14, 1944.

(v) World War II—January 1, 1957.

(vi) Korean conflict—February 1, 1965.

(vii) Vietnam era—May 8, 1985.

(viii) Persian Gulf War—January 1, 2001.

(Authority: 38 U.S.C. 532(d), 534©, 536©, 541(e), 541(f))