free_spirit_etc

Thanks! I have been listening! It is very special!

infantry10, It would be interesting to see what information she sent to the VA. They should have stopped his payments (except for the payment for the month of death) and helped her apply for DIC -- where she would get monthly benefits in her own right. (She would also be eligible for a VA home loan, educational benefits, CHAMPVA, etc.) The VA should have also paid a chunk of change toward his burial. But it is hard to know without seeing what specifically she reported to the VA and what specifically they sent her, where she would stand on this. In the very least - she would have to repay the benefits they paid in his behalf, and be able to start drawing benefits in her own right from the time she applies for DIC. In the very most, they would let her keep the payments they paid in error -- but she would have to show that she was not at fault (which she should be able to show) and that either she is not able to repay (which would be difficult if she has the money in savings) or that it would be against equity and good conscious to make her repay. There might also be a possibility that the way she notified them of his death could be considered an informal claim for DIC -- and if the VA did not send her the forms to apply -- it would still be pending -- and if that is the case, she could get DIC awarded all the way back to the date of his death. But in the very least she should be able to get DIC from this point, and would be entitled to the last month payment of her husband. VA pays a month behind -- so that would mean she gets the payment he got the month he died - and the payment he received the following month (which was the payment for the month he died.) And she should be able to get around $2000 toward his funeral expenses. She may really want to talk to an attorney. He might be able to see if she can be provided "equitable relief" if they don't accept that she had an informal claim for DIC -- where she only repays the difference between what the veteran received and what SHE would have received if the VA had done their job. Or he might be able to arrange that as an offer in compromise. She should be able to start getting benefits in her own right -- and get the extra payments settled -- rather than just having to keep banking money they are sending her in error -- but just saving it until they decide they want it back.

They should have sent her information on claiming for DIC when he died. http://www.benefits.va.gov/COMPENSATION/resources_comp03.asp#BM01 Effective 12/1/12 Basic Monthly Rate = $1215 (38 U.S.C. 1311(a)(1))

If the veteran died from a condition that was service connected, the widow is entitled to monthly benefits in her own right.

Buzz, take a look at my previous message(i just edited it to try to make it more clear). I think you are right to worry about the incorrect statement(but dont stress out over it). I agree - Under the Privacy Act an individual should be able to expect that the information a Government agency keeps on them is timely, complete, and accurate. People should not have to tolerate having inaccurate information in a record a Government agency keeps on them. Even if it doesn't affect the decision on THAT claim - they should have the right to have inaccurate information corrected.

The regulations on waivers on repayment on the basis of against equity and good conscious are here: http://codes.lp.findlaw.com/uscode/38/IV/53/5302

"I had filed a claim for urinary dysfunction and radiculopathy based on bulging discs in my thoraco-lumbar spine. In the same claim, I was asking for SC and a rating for my cervical spine secondary to the thoraco-lumbar dysfunction due to misalignment. The question to the examiner was did my cervical spine injury cause the urinary dysfunction and radiculopathy. In the exam she stated that it was not caused by my cervical spine, I informed her the claim was submitted as secondary to my thoracic and lumbar spine. She indicated she could not deviate from the guidlines/questions she was to answer from the VARO." Geez.....

There is a bit here on VA debt: http://blog.rosslawllc.com/2012/06/21/-the-va-giveth-and-taketh-away-va-overpayments.aspx I am not sure about the equity and good conscious part for the VA - I know with SSA it is more along the lines that you were not "at fault" for the overpayment, that you did not realize you were overpaid, and that relying on the belief that the money was yours, you put yourself in a worse financial position (i.e. you spent money you wouldn't have spent otherwise, or made financial commitments you wouldn't have made otherwise). As far as hardship -- you have to prove it would place a hardship on you for you to repay the funds. With against equity and good conscious you don't have to show you are unable to repay, just that you have placed yourself in a worse financial position relying on the agency's error.

And the VFW never told her to apply for DIC?

PR, I wouldn't count on her getting a waiver. Just showing she notified them of the death wouldn't be enough. She would most likely have to show that she didn't know she wasn't entitled to the funds, and / or that it would be a hardship to pay it back. Though I am not sure of the VA rules yet -- I imagine they are similar to SSA. And just moving those particular funds wouldn't protect her from electronic attachment. They can attach any funds at the same bank. In my case, I had closed the account that the funds had been placed in before they did an attachment. The placed a freeze on the funds in a different account I had at the same bank -which was an account I opened in just my name after my husband's bank. So the VA can attach any funds in any account you might have at the same bank that they deposited the funds to. In my case, a big part of the battle was that they froze the funds, but didn't reclaim them for a long time. So I couldn't spend them because they had a hold on them, but I couldn't be issued a check for the amount due, because they had never reclaimed the funds.

Except that is kind of about inflammation of the bone. I found one article, but am not finding it again, that said they have to carefully consider whether to remove the bone because of how it effects the mobility of the big toe. If you look up the mechanics of walking, you pronate, then supinate - and the supination moves you to roll off the big toe. I wonder if your big toe doesn't do it's part of the game, you just kept right on supinating...

Okay.. I have diagnosed you... I am not a orthopedic doctor, but I do have a Bachelor's in Psychology and Speech Communication and a Master's in Speech -- which is dang close by VA standards for C&Ps... https://nwfootankle.com/foot-health/drill/3-Problems/34-Sesamoiditis Sesamoiditis may cause you to limp or walk on the outside aspect of your foot to help remove pressure from your painful involved area. Gait changes are a problematic compensation for this health problem, as they may cause pain and disability in one of your other joints, such as your knee, hip, or low back joints or some other part of your foot. You should always seek treatment as soon as possible if you suspect you have sesamoiditis.

http://www.va.gov/healthbenefits/resources/publications/IB-10-442_Dental_Benefits_for_Veterans_4_13.pdf Apply for dental care within 180 days of discharge or release (under conditions other than dishonorable) from a period of active duty of 90 days or more during the Persian Gulf War era. One-time dental care if your DD214 certificate of discharge does not indicate that a complete dental examination and all appropriate dental treatment had been rendered prior to discharge.* Class II IB It doesn't seem like that should have taken years to never get granted....

http://www.va.gov/vetapp05/files5/0529097.txt "Though the June 2005 examiner could not distinguish among the several factors enumerated as causes of the veteran's erectile dysfunction, including service connected disability, when it is impossible to separate the effects of a service- connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the claimant's favor and such signs and symptoms must be attributed to the service- connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998)."

Inquiring minds want to know... Are you wearing your own shoes today?

"Free: I guess the BVA is daring the Vet to go to the courts in these cases.... its crazy!" Well.. sometimes they remand it BACK to the RO and say the specifically requested a __ doctor and the remand must be followed. That adds a lot of time to the claim too. So the veteran has to wait while the RO does what they were told to do in the first case. In these cases, I don't understand why if the vet has an IMO they even play that game. If the VA had the stronger opinion, they sure wouldn't put it off another year waiting for the veteran to get a stronger opinion. They would deny it. To me, remands seem to tangle things up sometimes. As part of my husband's claim when he retired, he asked for ONE TIME dental care. If you didn't get dental treatment within a certain amount of time of your discharge, then they are supposed to provide you with one time dental care AFTER you discharge. So basically, they fix everything one time (that should have been fixed while you were still in the service.) Believe it or not - he never did get it. The RO kept saying his teeth were not injured in service. He kept saying he wasn't applying for an SC condition - he was applying for his ONE TIME dental treatment. It should have been that easy... But it had to go to the Board. The Board remanded because they said his DD214 wasn't in the record. They couldn't have HIM send ANOTHER copy. They remanded the dang thing, just for that. So that used up another year. When it got back to the Board, he again told them he only wanted the one time TREATMENT he was entitled to. They looked at his records and decided he MIGHT have been injured and their MIGHT be a SC condition - so they remanded back to the RO to develop that. Meanwhile, they didn't approve the treatment (as they hadn't made a decision...). So then he had to go to a dental C&P, which, of course, found no injury (that he never claimed in the first case). So he was denied AGAIN at the RO and had to wait for the case to go to the Board. The Board upheld the denial for SC - and somehow they lost track of the fact that he was just trying to get treatment. Remands can sometimes get crazy because everyone can forget what the claim was for in the first place.

"Findings indicate moderate to moderately-sever HFSNHL AU with good discrimination Today’s hearing loss is NOT a direct result of military noise exposure. Overlying factors such as Aging, genetics, medications, disease, occupational, recreational and /or environmental noise along with what role if any the military may have had in today’s hearing loss without resorting to mere speculation or a review of the Vet’s military medical records assuming hearing test results are present. Same with tinnitus." If he can't separate out what role any of the factors played in the hearing loss (without resorting to speculation...) couldn't that kick in http://www.va.gov/vetapp07/files4/0732329.txt "The Board also notes that when it is impossible to separate the effects of a service-connected disability and a non-service-connected disability, reasonable doubt must be resolved in the veteran's favor and the symptoms in question attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998)."

This is kind of what I am talking about: http://www.va.gov/vetapp07/files4/0732329.txt "In pertinent part, the veteran is service-connected for lumbar strain with degenerative disc disease, with a 60 percent disability evaluation assigned effective June 7, 1993. The Board notes that the October 2006 VA examiner attributed the veteran's erectile dysfunction in part to this service-connected lumbar strain with degenerative disc disease. The Board also notes that when it is impossible to separate the effects of a service-connected disability and a non-service-connected disability, reasonable doubt must be resolved in the veteran's favor and the symptoms in question attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). In light of the Mittleider decision and the VA examiner's opinion that the veteran's erectile dysfunction is more likely than not due to multiple causes, to include his service-connected back disability, the Board finds that the weight of the competent medical evidence is at least in relative equipoise on the question of whether the veteran's diagnosed erectile dysfunction is proximately due to or the result of service- connected lumbar strain with degenerative disc disease. Resolving such reasonable doubt in the veteran's favor, the Board finds that the criteria for service connection for erectile dysfunction as secondary to service-connected lumbar strain with degenerative disc disease have been met. See 38 C.F.R. § 3.310(a)."

This is on a different condition - but I like the statement: http://www.va.gov/vetapp13/Files3/1327776.txt "The law does not require evidence of an in-service disability; rather, there need only be a basis for attributing the current disorder to an injury in service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); see also Hensley v. Brown, 5 Vet. App. 155, 159 (1993)."

I know I have read some cases where people have been granted claims because the cause could not be ruled out. I saw it mostly when I was researching asbestos claims. But if the veteran had in service exposure, and post-service exposure, and smoked -- if the doctor stated that ALL of those contributed the the cancer and one couldn't be singled out and there was no way of knowing how much each contributed -- then it kicked in the rule where if it is impossible to separate the effects of multiple contributing causes - then all of it had to attributed to the service connected condition. This isn't easy -- and you will need to research and get clear on how it has to be presented. But it is still an idea. I think the same concept should apply to MANY conditions. In fact, I ran across it on asbestos cases -- but I think it originally started with mental claims. It is different than a doctor saying that it can't be ruled out (because that is just saying it is possible). It is where the doctor says there may be more than one cause that contributed, but this is more likely than not also a contributing cause -- and the effects of each cause can't be separated.

OMG Infantry10! I just looked it up and it took me over two years to get my money. I just kept getting the run-around -- but when I wrote my Congressman and he forwarded my letter to them, I got paid pretty quick.

They are wanting you to show chronicity. But it is ironic that if the car wreck happened after service, they would jump on saying that caused it. But keep in mind your doctor doesn't have to be certain. More likely than not, or as least as likely than not works. Possible, may have, might be are NOT good words in an IMO. Do you have any records of treatment since that time, even if not a direct follow up? Also -- do you have family members or friends that might be able to write statements that you have complained of back pain? That would not be instead of an IMO -- but just could add some more support.

infantry10, I am so sorry to hear that. So you have been waiting since May for the VA to straighten out a computer error? It sure would be nice if they had people who could just fix things that are easily fixed. I had a battle with the VA over freezing funds in my bank account after my husband died and then reclaiming the money even though they had noted I was entitled to it. Every time I got in contact with them, they promised to send it to the department who took care of those things. I finally wrote and asked my Congressman for assistance. I got my check FAST! And they even wrote a letter and actually ADMITTED it was an error.

I am not real familiar with CUES. But there are several people on here who are.

You're welcome....