free_spirit_etc

I get your point... to a point. But I think an important thing to keep in mind is that the BVA still generally needs a doctor to state the nexus. In my case, I was pretty sure the BVA couldn't deny the claim, but if I did not provide an IMO, they would most likely remand for a medical opinion. That would: 1. Add a lot more time to the process. 2. Give the VA one more opportunity to get a medical opinion that was against the claim that was a bit stronger than the ones they already had. The claims I researched that were similar to mine that had IMOs were usually granted. The claims that did not have IMOs were generally not granted. On a couple claims the BVA sought a medical opinion and it was favorable to the claimant. But in many cases, the opinion the BVA obtained either said they could not tell without resorting to speculation (which resulted in a denial) or gave some weak reasoning against the claim (which resulted in a denial). In one case where the widow was saying her husband's cancer started in the service, the medical opinion the BVA obtained actually said the medical community considers cancer started when it is diagnosed. What kind of BS is that? Why have early screening if cancer doesn't even start until it is diagnosed? BUT, with that being the only opinion the BVA had to work with, and the widow not providing an IMO, she lost the claim. The doctor who wrote my IMO was appalled that I had to seek an outside opinion. He said ANY doctor would know my husband's cancer could not have started after he retired. My husband had always thought our evidence was strong enough, and that if the BVA sought an opinion it would have to be in our favor. I didn't trust that. That would only happen in a world where people play fair. My research showed me that people who went in without IMOs rarely did well in the hearings. Doctors hired by the VA find all kind of ways to avoid favorable opinions. For example, the VA doctor who issued the opinion after my husband's death, side-stepped the whole issue of when the cancer started, and just talked about whether my husband's viral respiratory problems in service were an early manifestation of his cancer. I pointed that out in my argument, but I still needed a doctor to come right out and state, "It is more likely than not that his cancer started in the service." And the VA doctors were not going to say that, even if they had to just avoid answering the question to do so. Personally, I was more comfortable getting the IMOs and so I knew what cards I had to play. I wasn't comfortable letting the VA draw another card from their own deck to decide my fate.

This will work in your favor. They have played a poor hand and given the BVA very little to work with.

In my case, I had a pretty good idea at my hearing. What scared me was that my VSO would mess it up. The judge asked me if I had obtained the IMO, I told him yes. He asked what the IMOs said. I told him they said his cancer started in service. The judge then explained the 3 parts required. He explained my husband already met two parts, and all that was left was a nexus between the two. He laid his hand on my IMO and told me that might well provide the nexus I needed. He referred to it as the missing piece of the puzzle. I felt positive about his response until I talked to the VSO who didn't seem encouraged at all. My VSO seemed very nervous with that judge. But then, again, he was a pretty sucky VSO. I fired him a few weeks later.

Sometimes the key to winning is paying close attention to what they ignore. They ignore those things for a reason. In my husband's case, they ignored my husband's initial claim that his cancer started in service. His initial decision stated "Lung cancer to include due to asbestos exposure." After that they re-characterized it to merely lung cancer due to asbestos exposure. They just sidestepped addressing when the cancer started, despite my husband's repeated requests that they address the issue. They knew damn good and well it most likely started in service, so they just ignored that part of his claim. Luckily, the BVA saw through this, stating: "The March 2002 VA negative etiological opinion is entitled to less probative weight, as it does not specifically address whether lung cancer had its onset in service. Similarly, the October 2007 VA opinion is entitled to less probative weight, as it concentrated on whether the Veteran's in-service respiratory complaints were an early manifestation of his lung cancer and not the growth rate of the disease and whether the asymptomatic tumor was present in service."

Saints, Every time I try to open those files I just get a little spinning thing. Is anyone else able to open them. In my case, I realized early on that the RO was not my friend, and I did not expect to be granted benefits at the RO level. I didn't even submit an IMO to the RO and give them the opportunity to twist it around. I just let them play their hand and stopped expecting them to play fair. Then I went to the BVA and played my hand. The drawback is that takes a LONG time.

I agree. They wasted a lot of time and money on that.

The VA deposited my accrued benefits and my DIC retro in my bank account yesterday. Today was our wedding anniversary. That was a VERY nice present. And the timing lets me know my husband is still looking out for me.

Saints and Rootbeer, My husband died in February 2007. As my husband was retired AF I was entitled to $300 for his funeral and $300 for his burial for a non-SC death. The VA lost the burial claim a couple of times. They were nice enough to call me and tell me they lost it, but really??? After resubmitting the burial claim, they paid $300 for his funeral but denied the $300 for his burial. They said there was no evidence that my husband was buried, despite the fact I submitted bills that included the grave opening, transportation to the cemetery, a vault, a deed for the burial plot that was purchased right after his death, etc. I thought that my evidence was pretty solid. Most widows would not pay for cemetery plots and grave openings, have their husband's body transported to the cemetery, and then fail to bury them. But the VA denied. I had to appeal send the SAME evidence AGAIN. I was finally paid the $300 for the burial almost 5 years after my husband died. So yes, they can ignore solid evidence and make completely ludicrous decisions, all while acting like they are caring for him who has borne the battle and his widow and his orphan....

I think it depends on why it went there. I think it can be a black hole for some remands. In my claim, the BVA granted benefits, and apparently the AMC is the one that put the BVA decision into play. The BVA granted SC for my husband's lung cancer for cause of death (DIC) and for accrued benefits. The AMC called and told me they granted my husband 100% SC for the cancer, and told me how much retro I should get and what I will get each month. They also told me they granted educational benefits (though I have not officially applied for them yet).

Saints13 - My suggestion is to follow the premise of "First, do no harm." I know you re frustrated, aggravated, etc. etc. - and with good cause. But you don't have to decide RIGHT NOW whether to drop the claim or pursue it. Right now, you can just take some time to regroup and decide later what you want to do. If you don't withdraw the claim now, you can always withdraw it later if you want to. But if you withdraw the claim now, though you can always reopen the claim later, the effective date would take a big hit. So you might want to try just "coasting" a while - not actively pursuing the claim and not actively withdrawing it. Give yourself some time to decide - and in the meantime, do nothing. JMHO

One thing that would make my husband angry was if I backed down in an argument when I knew I was right. He would always snap, "Don't you back down!" This came in handy when dealing with the VA after his death. Sometimes when I got so frustrated I wanted to just give up and live like a "normal person" (i.e. not spend every spare moment studying the how to win the VA game in the so-called non-adversarial system), I would hear my husband's admonishment - "Don't you back down!"

What single word did they find? Good point!

I see we already discussed the Duty to Assist vs VCAA in accrued benefits claims here:

http://www.veteranslawlibrary.com/files/CAVC_cases/2011/Castellano_09-3386.pdf

In regard to DFAS, and CRDP http://www.veteran.com/content/va-retro-program%3A-retired-and-annuitant-pay-retroactive-payment

Now this is downright interesting: http://www.attiglawfirm.com/shoot/veteran-survivor-accrued-benefits-va/

Berta - Thanks so much! You have been such a blessing and and inspiration for those of us who followed behind along the trail you blazed! I am glad to know there will be an audit statement -- so I can figure out what they figured out. LOL Maybe I can find some info on DFAS. I don't think it would effect taxes anymore because you only have three years to amend your taxes. Yes, I read the the burial claims are easier now. They aren't supposed to put you through all of the hoops like before -- BUT, it should have been easy the first time - and they messed that up in a variety of ways. (At least I didn't send them my husband, like you did...lol) I wondered about SMC and dependent benefits. I am not sure there would be enough evidence in his file as of the date of his death to establish SMC. But there should be enough in his file to establish that he had a wife, even if he didn't have me on as a dependent. But they don't pay for dependents until you are at 30%. This is something interesting on accrued benefits on Attig's site: http://www.attiglawfirm.com/move/veteran-va-survivor-accrued-benefits/ Also - for deaths after October 10, 2008, the surviving spouse can sometimes substitute on the claim, and continue to add evidence to the file for accrued benefits. http://www.attiglawfirm.com/shoot/veteran-survivor-accrued-benefits-va/

Thanks Pete. I guess I will see where it goes from there. When I get some time, I will research for some more info on the other stuff. I would like to get this burial claim resolved without taking a lot more time. They have evidence my husband dies, had a funeral, and was buried. Now they have evidence that his death was SC. I shouldn't have to start all over again on a burial claim. It would even save the VA a lot of time to just say, "Yes. She was paid for a non-SC funeral / burial. The death is now SC. Pay her the difference between an non-SC death and an SC-death" rather than drag this out for a long time.

I kind of get that - and am all for supporting her. I am sure more numbers will help as far as staff is concerned - but more important is staff that cares, that are fair, and that don't play games. The VA wastes far too much time playing games. They don't always deny claims because they didn't take the time to read the file. They also deny claims because they look past the obvious to dig deeper to find something they can twist around and deny.

I think the scariest thing is that once this avenue is over, it will go back to business as usual. I debated contacting Undersecretary Hickey. I could have waited a few more months to see if the RO processed the BVA decision eventually. But looking back, I saw how it took them several years to pay the $300 for my husband's burial. It over two years (and Congressional intervention) to finally get them to return the $225 month of death payment they had taken from my bank account in error after my husband died. Every time I contacted them they informed me they were forwarded my concern to whomever was supposed to handle it. These were simple matters that should not have taken years to resolve. And then there is the certified appeal they refused to acknowledge, despite the fact I sent them an IRIS when I mailed it telling them the certified receipt number and what I was appealing, and despite the fact I had a signed return receipt from them. Luckily, Shreddergate opened the door back up where they had to processed the resubmitted appeals. And so much more.... So my fear was if I didn't move now when I had the chance, I could be stuck in limbo for several more years. My husband died eight years ago. I think I have been patient.

And another question is: I asked the woman from the AMC about the service connected burial payment. I already got the non-service connected burial payment. The woman at the AMC told me I would have to file a new claim for the service connected burial. But my records show I was awarded $300 for my husband’s funeral the year of his death. Then I was awarded $300 for his burial November 2011. (For some reason, it took a while to convince the RO I buried my husband). I appealed that decision November 2012, appealing the fact that the decision indicated the $300 payment represented a total grant of all benefits sought on appeal. And I specifically stated “The decision also indicates that the reimbursement is for the burial of a veteran whose death is not service connected. As whether my husband died from a service connected condition has not been finally decided, I request to preserve the right to receive the service-related death burial benefit for my husband.” I have not received a Statement of Case on this. But instead of opening a new claim for service connected burial, can’t I just ask the RO Director to have them issue a Statement of Case on my 2012 appeal?

Besides that, I am looking for some clarification. The woman at the AMC said they awarded accrued benefits, DIC, and Educational Benefits. At first she told me my entire retro was $14,000 something. I told her that seemed very low since I am supposed to receive DIC back to 2007. She checked and called me back and said the amount she gave me was for accrued benefits only, and that I would also get a separate retro amount for DIC. Now I am trying to figure out what I should get. It is my understanding that for DIC, I should get the amount my husband would have received for the month of death (Feb 2007) since it is more than the DIC, and then the basic rate for DIC the remainder of the time. It is also my understanding that my husband’s accrued benefits should start the first full month after the month he opened his claim and end the month before his death (since the month of death payment is awarded to me as his widow). I am also assuming the $218 / $225 he received for his 20% service connection during those months would be deducted from the 100% award for his cancer for those months. What I am wondering is: 1. If I should receive the accrued benefits at the rate of a veteran and spouse for that time period (rather than veteran alone). I was not established as a dependent at the time of his death, as they don’t have dependent benefits for 20% disabled. However, there was evidence in his file as of the date of his death that he was married, as I wrote a Statement in Support of Claim (and signed it as his wife) and some of the medical records refer to his wife. 2. Since my husband had his retirement pay reduced by the amount of his 20% disability, but 100% disability was eligible for concurrent receipt in 2006 / 2007, will DFAS refund the amount they withheld from his pay during the time he is now considered 100%?

I am a bit fuzzy about what is going on with my claim now. I had my Board Hearing September 3, 2013. The BVA sent a decision November 19, 2014 grating service connection for the lung cancer for accrued benefits purposes, and granted lung cancer as the cause of my husband’s death for DIC purposes. I then received a letter from Chicago RO telling me they had received my claim for benefits. I emailed Undersecretary Hickey March 5, 2015 asking to check on the status of my award. She responded she would have the director of the Chicago RO find and complete my appeal ASAP. The director then emailed me and told me she would be out of town, but the assistant director would be contacting me. The assistant director emailed me March 11 and told me benefits had been awarded that day, that I should receive my award letter in 7 to 10 days, and to let her know if I didn’t receive it within that time-frame and she would follow up. I emailed her on March 25th letting her know I had not received my letter yet. She has not responded, by today I received a call from the AMC in Washington telling me they made a decision on my claim March 10 and a letter was mailed March 27. She said the BVA sent my appeal to them to process. She also said they will now send their decision to the Regional Office. So I am confused that the RO has been following up on my claim, if it was at the AMC in Washington. I also wonder what wait is involved now for Chicago to do whatever they are supposed to do with the claim.

Also - look up the cases that the sources you find cite.

Even the first C&P says apparently you were treated adequately for the condition as a child. It is amazing that you get treatment in service for your low back and hips (bilateral) and they can concede that something occurred that was enough to injure your low back, but deny the same thing also effected both hips, though you got treatment for those too. Perhaps the hip condition isn't an aggravation of Leggs-Perthes. Perhaps it is a hip injury that had nothing to do with the Leggs-Perthes. Maybe they are just using Leggs-Perthes and an out. But even then, to say that a pre-existing condition in one hip just happened to "naturally progress" (very rapidly) and effect BOTH hips at precisely the same time you injured your back -- seems like a real stretch of logic.