Sean Kendall Veterans Law Firm

Veterans law and the rights of widows and widowers progressed before the Veterans Court as the Court ruled that there is no per se legal bar to reopening a denied accrued benefits claim.  The Board found the notion of reopening an accrued benefits claim pursuant to section 5108 inconsistent with the one year requirement that a claim be filed within the year after a veteran's death.  

Generally, a widow may only claim accrued benefits based upon the evidence already in a veteran's claim file at the time of death.  However, there are circumstances where there is evidence in the possession of the VA, such as medical records, that are not in the claims when an accured benefits claim is denied by VA.  In such a case, a widow may file to reopen a previously denied claim for accrued benefits.  

The Court in the Quattlebaum Court indicated that  Thus, pursuant to this regulation, there
may be circumstances – perhaps rare but certainly possible – where documents are in the Secretary's
possession at the date of the veteran's death (and therefore are considered to be in the file at the date
of death), yet have never been presented to the Agency decisionmakers. Any such document
submitted to the decisionmaker subsequent to a denial of an accrued benefits claim would qualify
as "new" evidence pursuant to 38 C.F.R. § 3.156(a) ("New evidence means existing evidence not
previously submitted to agency decisionmakers."), and might also be material if it (along with
evidence previously in the record) "relates to an unestablished fact necessary to substantiate the

Thus, widows that have had previously denied claims for VA benefits should consult a lawyer or Veterans Service Officer to see whether they may reopen a claim for accrued benefits.
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