ptsd Poopsy Woopsy

[Poopsy Woopsy]

My husband was 70% PTSD and had three claims pending; Unemployability, AO, A&A. but before they were awarded. the VA killed my husband.

I was awarded DIC, as it was an easy case having a letter from an outside cardiologist stating the reason he died was neglect on the VA's part. 

I checked the status of the pending claims. and the person said you just have to wait. I said, are they just waiting for me to die too! AND, his 

answer was, Yeah, kinda looks that way! He also mentioned there was no Unemployability on the claim. I have a copy of the paperwork

that the Va rep sent in. So I have proof it "WAS FILED" He was suppose to get back to me about it not being there, but I never heard.

I am now stuck on DIC because I am suffering from several maladies that all came to light right after my husband passed away.

I can't work because of them and am looking at surgeries.

I was asked to come see the VA rep at local congressman's office. He did some checking and told me you have no claims open.

HOW CAN THAT BE. No letter stating such. Nothing!. It was definitely news to me, after waiting all this time.

He said, I should have filed a TORTE claim after it was found that the VA was responsible for my husbands death.

How can you do something you are not aware of. and Damn sure the VA won't tell you about!!

 I have passed the statute of limitations, as it will be 3 yrs. this coming May!! 

Am I dead in the water. and if so. How could that be possible as I was not informed or aware of any of it!!

My grief is  insurmountable and the physical has taken any quality of life I might of still had. but now I am stuck with not enough to live on. 

How is that even possible if they (The VA)  are in the wrong? What recourse do I have? Do not tell me "NONE" They made choices. and that

means I have choices!!  They don't know the "Wrath I can bring as a grieveing wife to get things "DONE" 

[Poopsy Woopsy]

On 4/5/2017 at 4:45 AM, broncovet said:

Hopefully, someone suggested you file a "substitution of claimant" which is required when the VEteran dies.  

In other words, the claim dies with the VEteran UNLESS you file a substitution of claimant.

There is a time limit for that to happen.  

According to this site, this must happen within a year of the death of the claimant.  

https://blog.eldercounsel.com/does-a-va-pension-claim-die-with-the-claimant

Naturally, if you were represented by an attorney the attorney should have explained this for you.

If represented by a VSO, its hit and miss, more miss than hit.  

If there is a large potential retro, then you should consider legal representation.  I have had a claim in since 2002, and the VA's MO is just like you said...they delay you until you die, then they begin delaying the spouse all over again.  

Since it would appear the severity of your late husband's injuries is not an issue after death, then it boils down to service connection and effective dates.  (for retro). 

Since you have gotten DIC, it sounds like this must have been SC.  Or, your husband passed 10 or more years after he was rated 100% (that is another way to qualify for DIC).  

You may be eligible to file on your late husbands social security.  Check with social security about that.  

Now, on to effective dates, since that may be your primary issue, that is, you are trying to get IU on your deceased hubby.  

YOu want to resubmit those TDIU forms pronto.  Explain those were previously submitted on xx-xx-xxx (date submitted claim for tdiu).  

The effective date for your retro will be the later of "the date filed" or "facts found", which is the date the doc said your hubby became unemployable.  

Check his medical records to see if a doctor said your husband was "unable to maintain SGE" due to his service connected condions.  

You will also need to file the TDIU form on the correct form.  Previously this was not required, but dont take chances here..file it on the correct form, after substitution, of course.  

Unless you are amazingly persistent, organized enough to keep copies of all documents, and great at researching and sorting out case law, you should likely consider an attorney.  

I explain this over and over, but an attorney often costs less than you think, sometimes zero.  Here is why:

When you go to the CAVC and are represented by an attorney, he or she should apply for compensation under EAJA.  The EAJA fees are regurlarly awarded, and that amount will be deducted from any attorney fee you pay.  Example:

I recently went to cavc on an appeal, represented by an attorney, Julie Glover at Glover Luck in DAllas texas.  

My attorney won a remand, and 6000 in attorney's fees.  This means, when/if I do get my retro, the first 30,000 in retro will have no attorney fees.  In other words if my retro is less than 30,000 my attorney fees will be zero.  I will pay 20 percent to any retro ABOVE 30,000.  My attorney charges 20 percent, so 20 percent of 30,000 is 6000.  That is why Im unlikely to pay any attorney fees, and I will be smiling even if I do pay attorney fees, since that would mean I get over 30,000 in retro.  So, if my retro is 35,000:

35,000 times 20% equals 7000

But EAJA paid                -6000

So I would owe 1000 to the attorney and would collect 34,000 in retro.  

I am just that!!

Amazingly persistent, Organized and have records, dates and times of early on..

I don't trust the Va reps here as they have made mistake after mistake. 

I am concerned about missing something. No matter how much homework I do, it may not be enough. but not willing to try lawyer yet

Oh and yes I filed a substitution of claimant. One of the things the Va rep forgot to tell me about.. I got it within "ONE" day of the cut off date

 

Edited April 6, 2017 by Poopsy Woopsy
forgot to tell about substitution of claimant

[Poopsy Woopsy]

On 4/5/2017 at 6:15 AM, Berta said:

By CHAMPVA , I mean the Civilian Health and Medical Program from the VA.

If a spouse is qualified for CHAMPVA they must also obtain Medicare Part A and Part B when they are 65.

CHAMPVA would help you a lot . Save all of your medical bills because some  of them could possibly be refunded retroactively----that all depends on the EED that an award letter determines that makes a survivor eligible for CHAMPVA.

I see the AO IHD as your main issue but also the PTSD claim is Very important too,as our situations as similar and it was the PTSD award from 30% to 100% P & T that awarded me Chap 35 and CHAMPVA.

In those days I had to start from day one on my husband's pending claims.

He had a PTSD award from SSA, Voc Rehab records,2 VA PTSD hospitalizations and multiple psychological tests tests done in his lifetime ( after a battle) and the VA gave a very favorable EED for that accrued award 

but they could have awarded it all in his lifetime yet chose to ignore the evidence( and lied to my Senator and 2 Congressman about the SSA award)so that claim took 3 years.

It is the PTSD claim you have that will depend on how soon after death the accrued /substitution claim was filed.

I am sure that wont be an issue in the AO IHD claim but will have to read over all the Nehmer info here.

I know this is all a lot to digest, and grief and anger can cloud our thinking.

And worse yet , we can get poor advice from vet reps and VSOs who do not have a clue ,but will act like they are omniscient.

 

 

 

Thank You, 

hope I don't get too clouded as my grief is immeasurable, but now is my driving force. 

WE were living on his 70% PTSD so i guess that can't be changed, except that the IU and AO should have reflected on that. The Va rep checked the status (He said he went right to the top) and the "TOP" said I have no claims in.. Thats where is lies with me. How can that be! We have been waiting for almost 2 years before he died. and it has been three years since his death., I am at a total loss for "WHY" and what the heck I DO NOW!!

[Poopsy Woopsy]

20 hours ago, broncovet said:

Remember, VA losing your claim is VA's favorite next to denial or delays.  They "lose" claims on purpose, as they have done mine.  Its called "shredding", and, yes its alive and well.   More and more VEts are having claims "mysteriously disappear".  This should not be possible with electronic claims filing, but VA must have figured out how to shred the stuff electronically also.  

The VA gets away with this, over and over, simply because there is no accountability.  With a new VASEC, you should certainly let him know this.  

However, you need documetation from your "VA rep", which I presume is a VSO, that is was filed.  Your VA rep may have been the one to drop the ball.  Its not good he (apparently) wont return your calls, but I think about one in 10 VSO's return calls.  

Hi broncovet! Thanks but I guess I should be more accurate. They didn't loose my claim. They just said I didn't even have one in!! Is that the same? It's been in and have been working on it. 

Can't figure out why this time I called (after getting letters that they have been working on it) that now they say "I don't have a claim in!) Does getting DIC eliminate any and all other claims on file. was looking for IU, AO, AA, for 100% and accrued or back pay, as this is all tied together.

[broncovet]

Hopefully you kept those letters that said, "They are working on your claim".  You see, they will doubt every word you say, and make you prove EVERYTHING.  Im having to re Prove my dependents!    But, they dont doubt one word of anything they say!!!  So, you can hold them to what they "say" in writing, that is.  In other words if they said they were "working on your claim", then you should be able to take them for their word.  

Oh, and yes, "They lost your claim".  That is, if you had a claim in, and it magically disappeared while in VA's possession, then they lost/shreded it, by defination.  Sometimes, VA just "closes" an open claim without deciding it.

This is a violation of 38 CFR 3.103, which states:

§3.103   Procedural due process and appellate rights.

(a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3.

(b) The right to notice—(1) General. Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice shall clearly set forth the decision made, any applicable effective date, the reason(s) for the decision, the right to a hearing on any issue involved in the claim, the right of representation and the right, as well as the necessary procedures and time limits, to initiate an appeal of the decision.

(2) Advance notice and opportunity for hearing. Except as otherwise provided in paragraph (b)(3) of this section, no award of compensation, pension or dependency and indemnity compensation shall be terminated, reduced or otherwise adversely affected unless the beneficiary has been notified of such adverse action and has been provided a period of 60 days in which to submit evidence for the purpose of showing that the adverse action should not be taken.

(3) Exceptions. In lieu of advance notice and opportunity for a hearing, VA will send a written notice to the beneficiary or his or her fiduciary at the same time it takes an adverse action under the following circumstances:

(i) An adverse action based solely on factual and unambiguous information or statements as to income, net worth, or dependency or marital status that the beneficiary or his or her fiduciary provided to VA in writing or orally (under the procedures set forth in §3.217(b)), with knowledge or notice that such information would be used to calculate benefit amounts.

(ii) An adverse action based upon the beneficiary's or fiduciary's failure to return a required eligibility verification report.

(iii) Evidence reasonably indicates that a beneficiary is deceased. However, in the event that VA has received a death certificate, a terminal hospital report verifying the death of a beneficiary or a claim for VA burial benefits, no notice of termination (contemporaneous or otherwise) will be required.

(iv) An adverse action based upon a written and signed statement provided by the beneficiary to VA renouncing VA benefits (see §3.106 on renouncement).

(v) An adverse action based upon a written statement provided to VA by a veteran indicating that he or she has returned to active service, the nature of that service, and the date of reentry into service, with the knowledge or notice that receipt of active service pay precludes concurrent receipt of VA compensation or pension (see §3.654 regarding active service pay).

(vi) An adverse action based upon a garnishment order issued under 42 U.S.C. 659(a).

(Authority: 38 U.S.C. 501(a))

(4) Restoration of benefits. VA will restore retroactively benefits that were reduced, terminated, or otherwise adversely affected based on oral information or statements if within 30 days of the date on which VA issues the notification of adverse action the beneficiary or his or her fiduciary asserts that the adverse action was based upon information or statements that were inaccurate or upon information that was not provided by the beneficiary or his or her fiduciary. This will not preclude VA from taking subsequent action that adversely affects benefits.

(c) The right to a hearing. (1) Upon request, a claimant is entitled to a hearing at any time on any issue involved in a claim within the purview of part 3 of this chapter, subject to the limitations described in §20.1304 of this chapter with respect to hearings in claims which have been certified to the Board of Veterans' Appeals for appellate review. VA will provide the place of hearing in the VA office having original jurisdiction over the claim or at the VA office nearest the claimant's home having adjudicative functions, or, subject to available resources and solely at the option of VA, at any other VA facility or federal building at which suitable hearing facilities are available. VA will provide one or more employees who have original determinative authority of such issues to conduct the hearing and be responsible for establishment and preservation of the hearing record. Hearings in connection with proposed adverse actions and appeals shall be held before one or more VA employees having original determinative authority who did not participate in the proposed action or the decision being appealed. All expenses incurred by the claimant in connection with the hearing are the responsibility of the claimant.

(2) The purpose of a hearing is to permit the claimant to introduce into the record, in person, any available evidence which he or she considers material and any arguments or contentions with respect to the facts and applicable law which he or she may consider pertinent. All testimony will be under oath or affirmation. The claimant is entitled to produce witnesses, but the claimant and witnesses are expected to be present. The Veterans Benefits Administration will not normally schedule a hearing for the sole purpose of receiving argument from a representative. It is the responsibility of the VA employee or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position. To assure clarity and completeness of the hearing record, questions which are directed to the claimant and to witnesses are to be framed to explore fully the basis for claimed entitlement rather than with an intent to refute evidence or to discredit testimony. In cases in which the nature, origin, or degree of disability is in issue, the claimant may request visual examination by a physician designated by VA and the physician's observations will be read into the record.

(Authority: 38 U.S.C. 501)

(d) Submission of evidence. Any evidence whether documentary, testimonial, or in other form, offered by the claimant in support of a claim and any issue a claimant may raise and any contention or argument a claimant may offer with respect thereto are to be included in the records.

(e) The right to representation. Subject to the provisions of §§14.626 through 14.637 of this title, claimants are entitled to representation of their choice at every stage in the prosecution of a claim.

(f) Notification of decisions. The claimant or beneficiary and his or her representative will be notified in writing of decisions affecting the payment of benefits or granting relief. All notifications will advise the claimant of the reason for the decision; the date the decision will be effective; the right to a hearing subject to paragraph (c) of this section; the right to initiate an appeal by filing a Notice of Disagreement which will entitle the individual to a Statement of the Case for assistance in perfecting an appeal; and the periods in which an appeal must be initiated and perfected (See part 20 of this chapter, on appeals). Further, any notice that VA has denied a benefit sought will include a summary of the evidence considered.

Edited April 7, 2017 by broncovet

[Buck52]

Poopsy

check this site out from Jim Stricklands VA Watch-Dog...

even though regualtions  says that you only have 1 year to file the substitution of Claimant   after the veteran death ...>you should file anyway and see what hey say ( jmo)

https://www.vawatchdog.org/substitution-of-claimant.html

Edited April 7, 2017 by Tbird
Updated Link

[Berta]

Thanks for your detailed replies --it will take me time to go over them but these 3 things  concerns me:

1."My husband had 70% PTSD. 4 out of the list of 10 for AO and was in the waters but not boots on ground. Secret mission, so makes it difficult to get info,"

If his ship is on the VA's AO's ship's list due to AO exposure , that will help...

What ship was he on?  And what type of boat, landing craft, LST, any amphibious craft he was on in "waters" of Vietnam? Was he  in Danang Harbor ( legislation on that presently being discussed in Congress-and the radio show last night gave an update on that)

 

2."Secret mission"- my daughter was Top Secret-Classified ( USAF INTEL) and still is TS Classified as a civilian.

USAF INTEL told her the classified status would not be an issue if she ever filed a VA claim.They an lift the classification status very fast. Although she is not a Vietnam war veteran, she was in Vietnam twice for the USAF,under INTEL.

What was his MOS on his DD 214?

 

3. "I got ChampVA. and I have to have medicaid pick up what ChampVA doesn't pay."

You mention the 70% PTSD and a TDIU claim but I am wondering how you received CHAMPVA....

they do not award CHAMPVA under 1151 so maybe they did bring his SC PTSD up to 100% P & T when he died???   

I will go over all the info again here,after you an answer those questions because the answers could change everything I posted here before in this thread.