DIC-AO -1151 input needed

[Berta]

We need more input here from others. I have a busy schedule for rest of this month...

http://community.hadit.com/topic/68743-non-va-medical-bills/?page=6

The Issues are

 

1.whether the veteran had an AO presumptive “respiratory” cancer that caused his death or that the lung cancer metastasized from another possible AO cancer.And what that cancer is.

( the deceased veteran;s private medical records could reveal that or a email to the doctor who had treated him, as an email response would be good evidence as to the “respiratory’'factor, to settle that right away ,which would also be in the records the VA will obtain)  but that still leaves the 30 day rule factor .

2. Whether the 30 year rule will be used against  the AO claim by the VA.

3.The spouse has to file for substitution ,as the veteran filed the AO lung cancer  claim prior to his death.

4.I don’t know if a formal DIC claim has been filed yet.I believe the DIC forms would still cover any accrued award from the pending claim the widow has to  formally substitute herself for.

The 21-534 should have an area to explain that. The veteran's 100% P & T is not for the cancer.

Survivors claims are handled by a specific VARO these days –the TVC would know where best to file the DIC claim, and substitution claim-which might have to be filed at the VARO instead.

 

5. I asked for the son to contact the TVC vet rep who apparently  might have  filed the spouse’s DIC claim to verify the above factors and to contact the doctor who would know if the type of cancer was “respiratory” and the doctor will also have to verify if the cancer metastasized into other cancers the veteran had or if the other cancers metastasized into the lung cancer., (if so what type of cancer were they …I didn’t ask that last question yet)

5. The widow states:

“The VA knew John had cancer in September of 2015 and did not tell him. He was diagnosed at Conroe regional hospital with stage 4 lung cancer June 2016. John ordered his VA medical records after this and found  five times in the Sept.2015 radiology report that he should be notified. He was never notified by the VA. “

 

If the VA never contacted him this could be a FTCA and/or 1151 issue.

I have suggested that they obtain an independent medical opinion, from an oncologist who can provide a full detailed medical rationale as to the malpractice, but needs all private and VA medical records to do that (and the Death Certificate)

I have no idea of the cost and one never knows if an IMO will support a claim. If negligence./malpractice occurred by the VA, it will be in the VA medical records.

They have a law firm involved in the potential FTCA issue but the SOL clock is ticking away.

In my 21-534 I filed for both direct SC death (awarded) and Section 1151 death (awarded.

I referred in the 21-534 to the Section 1151 claim and attached it.

No SOL for 1151 claims.

This information is very concerning:

“Wrongful death due to malpractice in finding cancer. My father was put on "Harvoni" to clear up Hep C prior to getting Bi-polar meds. Due to the cost of Harvoni, he was put through a battery of tests to determine his health in early 2015. The fact that NO issues were found and yet he suffered a Aortic dissection in Sept 2015, then was suddenly diagnosed with Stage 4 cancer a few months later is HIGHLY suspect

- Wrongful death due to malpractice in cancer treatment. My father was NEVER given chemotherapy and did not even get an appointment with the VA oncologest before he died. We tried for months to get the VA to clear "Choice" care to pay for a private care oncologist who said he should be on chemo immediately, but we were denied by the VA chief of staff.”

Still, only a real doctor, an oncologist,could determine how relevant that information here is, because they will need to have all of the private and VA medical records, if asked to prepare an IMO.

Would someone be willing to go over the whole thread to see if I left anything out? Please add to the son's thread ,anything else if you can.

 

 

 

 

 

 

[broncovet]

Berta...Im gonna give this a shot..for you...even tho I dont know much about DIC/AO.  

However, this is a bogus denial:

.  Rather, as referenced above, the Veteran was first diagnosed with lung cancer in 2003, more than 30 years after his discharge from active service in 1972.  See Maxson v. West, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. Cir. 2000).  The evidence does not suggest that the lung cancer manifested many decades earlier closer in time to the Veteran's service."

end of quote.

    This is the same denial malarky as Va used on me.  The VA is required to rate by the published criteria.  One of the criteria for service connection is NOT "time since military discharge".  

     This is a bogus denial.  Yes, I know VA would love to deny based on "too long of time since discharge", but that is non criteria, so they may as well have denied him because he had purple hair, ate Wheaties for breakfast, or because he voted for Ben Carson for president.  

      In BVA decisions, they often state the Veteran did (or did not) meet the criteria for a rating.  If you meet the criteria, you get the rating.  If you dont meet the criteria, you get denied.  The length of time since service is NON criteria, so it can not be used as a reason for denial.  

     If I have additonal time, I will work on some more issues.  

     Also, I read where the CAVC stated, to the effect, that just because BVA cited a particular case, does not necessarily mean the CAVC will agree they applied the case law correctly.  So, that "Maxon vs West" crapola is just that.  Maxon vs West does NOT state the VA can use NON criteria to deny.  

Edited January 11, 2017 by broncovet

[Berta]

The DIC claim was not denied, and the deceased veteran's claim is still pending.

The BVA references to the type of cancer are within Nehmer and the 30 year rule is within established VA case law, unless the cancer is ,in fact from AO and manifested to at least 10% not too long after service.

This is a very complex issue and many questions I asked have not been answered by the veteran's family.

I appreciate the input Broncovet.

There are multiple issues here:

The Issues are

1.whether the veteran had an AO presumptive “respiratory” cancer that caused his death or that the lung cancer metastasized from another possible AO cancer.And what that cancer is.

( the deceased veteran;s private medical records could reveal that or a email to the doctor who had treated him, as an email response would be good evidence as to the “respiratory’ factor)but that still leaves the 30 day rule factor .

2. Whether the 30 year rule will be used against AO  the claim by the VA.

3.The spouse has to file for substitution ,as the veteran filed the AO lung cancer  claim prior to his death.

4.I don’t know if a formal DIC claim has been filed yet.I believe the DIC forms would still cover any accrued award from the pending claim the widow has to  formally substitute herself for.

The 21-534 should have an area to explain that.

Survivors claims are handled by a specific VARO these days –the TVC would know where best to file the DIC claim, and substitution claim.

 

5. I asked for the son to contact the TVC vet rep who apparently  might have  filed the spouse’s DIC claim to verify the above factors and to contact the doctor who would know if the type of cancer was “respiratory” and the doctor will also have to verify if the cancer metastasized into other cancers the veteran had or if the other cancers metastasized into the lung cancer., (if so what type of cancer were they …I didn’t ask that last question yet)

6. The widow states:

“The VA knew John had cancer in September of 2015 and did not tell him. He was diagnosed at Conroe regional hospital with stage 4 lung cancer June 2016. John ordered his VA medical records after this and found  five times in the Sept.2015 radiology report that he should be notified. He was never notified by the VA. “  Possible Sec 1151 and/or FTCA is another issue here.

I believe this was the TVC rep who helped the widow....but I dont know what the TVC rep actually filed.:

 "Mathews, Tracy Veterans Counselor Texas Veterans Commission Conroe CommunityBased Outpatient Clinic 800 Riverwood Court, Suite 100 Conroe 77304- 2824 936/522-4024 936/522-4020 8:00-4:00 Houston"

https://texaswideopenforbusiness.com/sites/default/files/08/21/14/tvc_directory.pdf

Thanks but I made about 35 replies already to try to get this all clarified. I have spent a lot of time on this .

If the son does not follow my suggestions as to contact the rep himself and the private oncologist and the law firm his dad contacted to clarify some of these issues, then I will have no additional input to the posts  there.

Someone else can try to  help them. 

 

 

 

[broncovet]

OK.  My 2 cents:

1.  The cause of death, if disputed, could ? possibly be remedied with a post mortem IMO/IME.  

 

2.  I cant not answer that one as Im unaware of such a rule.

3.  Yes.  The widow would file a substitution of claimant whenever she wants to continue the claim after the Veterans death.  Otherwise, the claim dies with the VEteran.  There is a limited period of time when the widow can file substitution.

4.  Hopefully the claimant would know if DIC was filed for, or, at least the repsentative who assisted the widow should know.  This may mean a copy of the complete cfile needs ordered, but, to make sure, if its not known if substitution or DIC was filed for, file again before the deadlines.  

Its not always enough to file, as shreddergate is not some thing that just happens to "others".  You have to file and make sure VA knows and documents you filed.  If the claimant kept a copy of filing for substitution/DIC, and sent it certified mail return receipt requested, you could rebut VA's presumption of regularity.  

5.  Yes, the son or whoever is managing this claim needs to find this out.  Again, order the cfile. 

6.  IMHO, the stakes are large here and it will take a professional (ie lawyer) to resolve this.  This is frankly too complex to trust to a VSO/TVC.  However, giv en the bogus reasons and bases for denial, I think it will be easy to win a remand.  FAulty "reasons and bases" for denial is an easy remand, and almost guarantees EAJA fees.  This means the claimant wont wind up paying all the attorney fees, they will be paid by EAJA all or in part, as in what happened to my claim.  

[Berta]

Nothing has been denied yet.

I have suggested the possibility that they will need an IMO/IME.One for the DIC claim and certainly one for the malpractice claim...if they file 1151 and/or FTCA.

If you read the whole thread, the vet rep was very 'confident" the DIC claim would be granted.

I saw " landmines" on the death certificate info  and wanted the son to contact the vet rep, to be sure those landmine factors were considered.

It would be negligence on my part if I did not bring up what I feel would cause an immediate denial.Then again maybe the vet rep saw a lot more info than we did here.

The veteran before he died contacted a very well known successful malpractice firm. I have asked what the status is on that.

Some of the issues I raised could be made by a simple email or phone call to the rep and to the private oncologist.

a few basic questions....I have no idea yet if the son has followed that critical suggestion.

Email is better though than phone.....as the response could become evidence ...from the oncologist...that might even eliminate a costly need for an IMO.I got an email from a Neuro that BVA gave as much weight to as to my 4 thousand bucks IMOs.The brief email co-oborated the IMOs from Dr Bash.Dr Bash called the neuro who promptly stated the email response to me on his Neuro letterhead.

But this is all involves a very complex issue and unfortunately could happen to any AO vet's spouse here after they die........ANY AO vet's survivor.

 

Edited January 12, 2017 by Berta

[Berta]

or to any vet or to their survivor , whether AO or not

who might have gotten  piss poor heath care from the VA,so bad that it caused additional disability....or even  their death.