free_spirit_etc

That is a very good point to make! Sometimes when I have read the BVA decisions -- the rules seem unjust and unfair. But that is because I am reading them from the slant the BVA interpreted them to deny the claim. And you start to get the message that 'These are the rules that Congress made to keep people from getting these benefits" But if you read the actual rules as they are written - and read some of the Congressional history - You really see they really ARE IN FAVOR of giving Vets the benefits. That can be shown by the number of laws they have passed in response to the VA using other laws they passed in a way that doesn't favor the Vet. But I have really noticed too - the VA are really very literal in their applying of many of the rules. I notice a lot of appeals where the appellant tries to argue that the rule should not be applied because of ____ and those arguments do not succeed at all. Though the rules even say that "equity" can be granted -- I haven't seen that much. The BVA says that only the SECRETARY can grant that.

So five month waiting and benefits the 6th month. But they can also go back up to one year from the time you filed the claim - if you can show you HAVE been disabled. I think my husband filed in May 06 - But they were able to take his claim back to August 05 (he was earning too much before then) and count those as waiting months - so he got benefits from January 06. They processed his claim pretty quickly - and he went to the bank one day and found out he had over $7,000 extra in the bank. He got his approval letter the NEXT week. He was finally able to retire his car that had 249,000 miles on it. Free

Do you have copies of your C&P exams? I think they get a lot of the stuff from those. In looking through my husband's files I see where he would write and tell them how bad his shoulder hurt - then they would send him to a C&P - and amazingly the doctor reports that he said his shoulder didn't bother him hardly at all. Now why would someone insist repeatedly that something hurt - and then deny it to the doctor. Or the C&P doctor even said that my husband had said his shoulder was a "Non-player" - which the doctor said meant that it didn't really bother him.) To me if someone said their shoulder was a non-player - I would think they meant that they didn't use it very much - or it wasn't very useful. My husband did NOT try to claim depression. He didn't think he was depressed. He claimed fatigue. But over and over the doctors kept stating he was depressed. Odd that when you TRY to claime depression - you aren't depressed. But when you try to claim something else - it is all about depression. Free

Is the delay in SSDI payments until September because of your 6 months waiting period? They were able to count months my husband made below the substantial gainful amount as waiting months - though he was still employed. Though I think this might have had something to do with him being declared "terminal" as his cancer had spread to his aorta. If they determine your condition will probably result in your death - then you don't have to prove you can't work. Free

Ed - You can also ask for the companies to waive your co-pays. We didn't have to do that with my husband's chemo and radiation - because Tri-Care covered them well. But when did when he needed the home medical equipment. We got doctors orders for LOTS of stuff - but he had me call and ask if they could waive the co-pay. At first I was told they couldn't - but then we talked to the finance office - because the company kept calling wanting to deliver equipment - and we only let them send what we absolutely needed and couldn't borrow - because those 20% co-pays add up fast. They HAVE to charge a co-pay UNLESS they give you a waiver - with a financial statement on file. but the financial statement just asked "What do you make?" What do you spend on --and it listed about 10 things and "Other". Totally simple form. I went by and turned it in - and the finance manager came down a couple of minutes later and told me we were approved for the waiver. In the case of the equipment - they weren't making anything on what we didn't get - so they were pretty motivated to work with us. Free

Oh..by the way..I am wishing you much luck and success in your battle against the cancer - and your battle with the VA. B) Free

It seems like the VA has set that up though - when they tell you - if you have any questions call 1-800... Or in the case of survivor benefits --"If you are the surviving spouse call 1-800..." It even says on had it to call the toll free number to get an appointment - but when I called - they told me I have to request an appointment in writing - and that it takes about 6 months to get one. IRIS said I need to request an appointment in writing also. I guess that is one way of weeding people out --but I sure hope it doesn't take six months. But the toll-free incompetence is not unique to the VA. I have been dealing with all kinds of agencies, companies, etc - and they all have toll-free numbers -- and they will tell you just about anything --and tell you that the last person that told you something shouldn't have told you that. Or "You shouldn't have faxed it to ____ (where you had been told to) -- you should fax it to ___" ACK!! The toll-free numbers are a hassle because no one is accountable for what they tell people. I have found I get much better results writing to the companies. Free

You can also use the IRIS system at the VA website - where they have to respond in writing. I have found that the people on the phone will often tell you anything. They told my husband to send his evidence in and they would send it on to the BVA - and didn't bother to tell him that his case had been closed and wasn't being sent to the BVA. They told me that my husband's file was in Privacy - and they were going to send ME the copies he had requested before his death -and that I would recieve them in 30 days. After waiting - I have found that they do NOT send the widow the copies the Vet requested - they were NOT sending them when the person told me they were - and I have to fill out a NEW request - which will now be delayed because of the time I spent waiting to recieve the copies they said they were sending. They told me I was entitled to keep the payment for the month of death - and that I just had to send in a Form claiming it and a copy of our Marraige License - and now they are sucking it out of my bank account and telling me that there is no "evidence" that I am his widow. (I have no idea what evidence they would need beyond our Marraige License and me being listed as his wife on the Death Certificate.) So be careful trusting what they tell you on the phone. Free

Hmmm - My husband didn't file the CUE claims because the prevailing thought was to go ahead and get the SC for the lung cancer through first - and then go back and file the CUE claims - to keep the CUE claims from holding up the SC for the lung cancer. And since they never got around to making a decision in the lung cancer - the CUE claims never got filed. How sad that the system is so inefficient that a vet doesn't file all the claims for which he is entitled because to file such claims will put his case in VA limbo for a longer period of time. And then the right to file such claims dies with him. Free

http://www.va.gov/vetapp06/files2/0609605.txt Here is another case where they denied the CUE claim in regards to accrued benefits The appellant was granted service connection for the veteran's cause of death in April 1998. Her claim for accrued benefits was denied in May 1998, and a timely notice of disagreement was not filed. Accordingly, that determination became final. In June 2004, the appellant, through her representative, filed a claim for CUE with the December 26, 1996, RO rating decision, which granted a 10 percent evaluation for the veteran's service-connected COPD. Except for a claim for death benefits, a surviving spouse has no authority to collaterally attack a rating decision made during the veteran's lifetime unless the veteran himself had so challenged that decision and it was pending at his death. The record reflects that the appellant filed the CUE claim in June 2004. However, the appellant lacks standing to pursue a claim of CUE in the prior disability compensation claim of the veteran because there was no CUE claim pending at the time of the veteran's death. Id. So I am wondering why they told the Supreme Court that Pursuant to 38 U.S.C. 5121 (Supp. II 1996), petitioner herself was entitled to file a timely application for accrued benefits, claiming that the earlier denial of benefits was based on clear and unmistakable error.1 See, e.g., Shields v. Brown, 8 Vet. App. 346 (1995)." Free

I have read quite a few CUE claims filed by widows - where they are alledging an earlier denial was based on a CUE. Usually they are seeking to have the veteran declated totally disabled at an earlier date. The BVA dismisses the cases based on Haines vs. West - that a veteran's claim does not survive his / her death. But in the case of a widow filing a CUE claim that was NOT filed by the veteran -they BVA claims that the widow can not file the CUE because she was not a "party" to the orginal denial. However in their Response in Opposition to the Supreme Court in Haines vs. West they state : "Instead, she merely contends that if a CUE claim does not survive the claimant's death, an erroneous decision may stand, "subvert[ing] systemic fairness, thereby undermining the credibility and reliability of the entire adjudication process." Pet. 9. In fact, however, the allegedly erroneous determination was not forever insulated from review. Pursuant to 38 U.S.C. 5121 (Supp. II 1996), petitioner herself was entitled to file a timely application for accrued benefits, claiming that the earlier denial of benefits was based on clear and unmistakable error.1 See, e.g., Shields v. Brown, 8 Vet. App. 346 (1995)." SO in that - they are saying it is appropriate for the widow to file for accrued benefits BASED on a CUE. Is this a catch-22 here? Or are they just denying the CUE claims filed by widows AFTER the Vets death because they are filing them properly? Hoppy was talking about their red herring arguments. And I can kind of see them in some of these decisions. I get aggravated when the BVA "discusses" things and says something like: The appellant didn't claim such and such (so then you wonder if they HAD claimed such and such - would they have won?) But then the BVA sometimes goes into great depth DISCUSSING what the person did NOT claim. "However, even if they would have claimed such and such - that wouldn't matter..because blah blah blah.." I am thinking! ACK! People are DYING waiting to get a spot on the docket and here they are going into hypothetical details about something the person didn't even claim. Free

I knew I read something about this somewhere. It was right on the Home Page of Had it!! B) http://www.hadit.com/ DEMOCRATIC PRESS RELEASE May 29, 2007 AKAKA PRAISES VA AGREEMENT TO NOTIFY INJURED VETS OF POTENTIAL MEDICAL EXPENSE REIMBURSEMENT WASHINGTON, D.C. – In response to a letter that U.S. Senator Daniel K. Akaka (D-HI), Chairman of the Veterans’ Affairs Committee, sent to VA Secretary James Nicholson, VA has announced will be revising veterans’ compensation award notification letters to include disclosure that, as a result of the award, medical copayments may be reduced or eliminated. Veterans have the right to request reimbursement from VA for care received prior to a decision on a compensation claim, but many veterans are not aware of this benefit. “Given that over 25 percent of veterans seeking compensation are waiting more than six months for their claims to be adjudicated, I am pleased that VA is now fulfilling its legal responsibility to provide service-connected medical care. The out-of pocket costs paid by veterans during that waiting period can be considerable and they deserve to be compensated,” stated Akaka. VA will inform veterans that they may contact their medical centers regarding potential refunds of out-of-pocket medical expenses, or reduced copayments, based on grants of service-connection or increased evaluation. These revised award notification letters will begin going out to veterans next month.

I would keep on them about expediting the claim. They were supposedly expediting my husband's claim...starting in July of 2006. The only movement we noticed was several form letters telling us they were "working on" his request for copies of his C-file. He requested the copies in August 06 and died in Feb 07 - without so much as having his request for records taken care of. So much for their expediting. Free

I got a semi-lightbulb moment. Though they said my husband had no respiratory problems in service - he did - but had not been attributed to cancer. He mostly had chronic sinutitis and chronic bronchitis. I have NO idea why he didn't claim these when he retired. He claimed about everything that had happened to him -- but NOT the respiratory conditions. Of course, as a smoker he had a tendency to underplay the amount that he coughed and attribute his cough to smoking -- and most of the doctors seem to do that to. But I am still puzzled why he never claimed the two conditions that had already been diagnosed as chronic conditions. I think smokers like to shy away from the repiratory things...and don't even go to doctors for coughing. Anyway - the bronchitis might be a piece of the puzzle. Part of my research shows that the coughing from lung cancer is often misdiagnosed as bronchitis - and other research shows that repeated bronchitis can be an early symptom of lung cancer. The American Cancer Institute lists repeated bronchitis as an early symptom of lung cancer. So there might be a key there. He started being seen for bronchitis in the mid 80's. When he went to the doctor the coughing seemed to be pretty pronounced -- spells lasting 45 minutes - or episodes lasting several weeks. There was also a SMR report in which he got an x-ray to rule out lung cancer in 1996 (two years pre-retirement and 4 years before diagnosis) because he had a coughing spell that was so bad his left side ached for months. I am sure the VA would point out that the 1996 x-ray ruled out lung cancer. Apparently the cancer was not detectable yet. However, if I point out he DID display symptomology prior to discharge in the coughing - before my research - the VA could just write it off as "Yes. But that was bronchitis" But now - I don't think it could be written off as easily...because of the connection to bronchitis and lung cancer. It isn't the strongest connection in the world. But it is still something - especially when he had coughing fits that were bad enough - and left rib pain (the cancer was in the left lower lobe) that cancer had been SUSPECTED - even though it was not detected before his retirement. Free

Odd that they expected YOUR doctor to address EVERY record - even though they were not relevent. But their doctors don't have to. We did point out the the VA in our argument last year (asking that they declare the C&P inadequate) that the doctor only stated he reviewed the Service medical records. Wouldn't it seem like if the disease was diagnosed POST service - that reviewing the post service records would also be beneficial? Free

I wasn't aure whether to argue the point - or wait to see if they held it against him. There isn't much rhyme or reason for them awarding claims sometimes. I actually read a case where they got some expert at a University to state that the onset of cancer is considered to be the date it is diagnosed. So the BVA denied the claim -- You are lucky you have perserverence -- and the ability to see through their logical fallacies. Heck. They couldn't even see there was any evidence I was my husband's spouse --though I sent in the Wedding License and I am listed as his spouse on his Death Certificate. Hey! It lists me as the "Informant" --and then wife. Maybe I gave them the info... I think he was just refering to the approximate amount of time my husband had been treated. Free

Yes. My husband was a smoker. And I think that had something to do with it. They didn't mention the evidence where his military physician indicated that the risk of developing lung cancer was 8 times with asbesos alone, 10 times from smoking alone and 80 times with the two combined. If your risk is boosted from 10 percent to 80 percent --that is a pretty significant risk. The doctor just had it in his notes - and didn't give medical rationale --but medically sound principles support that conclusion - and even the VA's own manual - states that the risk of cancer from asbestos exposure is significantly increased in smokers. I have seen the VA use that to grant connection too. Instead of saying "well - he smoked" - they indicate that the manual says the risk is higher among smokers -so the smoking is actually used to the Vet's benefit, rahter than their detriment. And the doctor stated he had empyhsematic changes -- which further linked the cancer to smoking. The doctor didn't mention he had pathology proven interstitial fibrosis though. From what I can see - it looks like the only thing the doctor looked at was the path report from the lung cancer surgery - and the only thing the Ro looked at was the C&P report. The doctor stated that there was no evidence he was exposed to asbestos because he wasn't part of any occupational screening (those programs were STARTED about 5 years after my husband changed fields and was no longer exposed). And that he didn't have any unique conditions that could be attributd to asbestos exposure. That totlly disregarded the fact that he had interstitial fibrosis - and that both his pulmonogit and oncologist had documented in his medical records that he had been exposed to asbestos while working as an electrician in the Air Force. So yes.. I think it was just a thing against smoking. They just saw that he smoked and breezed right through the decision. However - they at least addressed the asbetos exposure... not adequately --but at least they addressed it. And they had medical evidence (slight --but evidence none-the-less) that countered the evidence already in the record 9whcih they didn't read anyway). Free

For my husband's claim for service connection for lung cancer. He retired from the Air Force after 28 years on Sept 30, 1998. He was diagnosed with lung cancer after a 3.1 cm tumor was detected on August 7, 2000. This was about 10 months past his presumptive period. We have built our case around evidence that due to the growth rate - the cancer was most likely in place approximately 12 - 15 years before it was detected. The Death Certificate gives approximate interval between onset and death as 8 years. If taken literally - that would take it back to February 1999 - which is within his presumptive period. But I don't think this helps our case as: section §3.307 © states: “No presumptions may be invoked on the basis of advancement of the disease when first definitely diagnosed for the purpose of showing its existence to a degree of 10 percent within the applicable period.” So the 8 year remark might harm more than help - as it doesn't put it within his service time - or account for the slow growth rate. I have no idea where the doctor came up with the time frame - probably from the amount of time he thought my husband had been treated. This was not my husband's oncologist. Actually, this was the MD that just treated him while he was in the hosptial the last few weeks. But I don't know whether to point anything out about it -- or just wait and see IF and HOW the RO interprets it -- and be prepared to deal with it IF they use it as evidence to deny the claim. Free

I got my letter on my DIC claim today. They are wanting evidence of my son being a "helpless child" EEK! I wish they would get a little more politically correct with their terminology. And evidence that my husband died from a a service connected illness. It lists what they already have: Death certificate Marriage License DD214 Claim form Do I have to RE-SUBMIT all the info we already sent in with HIS claim for my DIC claim? Or can they / will they just pull it from there? He had a pending claim for lung cancer at the time he died from lung cancer. Like should I send a short summary of what we have already submitted - and ask for them to review HIS claim file? Free

I was reading somewhere where it said you could just file one NOD. I guess you can write other things. But only one counts as a NOD. Can we all chip in and send Berta to Law School? Free

Hoppy. You have been very helpful. I teach a Public Speaking class - and so many students get upset if someone questions their logic. I just keep telling them - WELCOME the opportunity that someone questioning your argument presents. They are giving you the keys to making your argument stronger. They are only hearing what you are actually saying - and don't have access to all the information you hold in your head. So they hear what you are actually putting out there. Putting together a decent argument is fine. But when the stakes are high - you need something stronger than a decent argument. I honestly don't think they read much of anything in my husband's claim EXCEPT the so called C&P. I have looked through all my husband's other claims - and though I see some errors the RO made - they at least addressed the issues. They have a way of mimicking back some of the things you said to show that they read it. And they would bring up some of the evidence and discuss it. Even though I couldn't agree with some of their logic - they at least provided some. However the SOC he got for this claim was just plain shoddy. They didn't mention ANYTHING that was NOT in the C&P report... and they acted like he had a C&P exam - when he did not. The examiner clearly stated: "The purpose of this examination to evaluate the Veteran for a claim of service connection for cancer of the lung. Specificaly, the Veteran reports that he believes this is secondary to an asbestos exposure in service. It is requested to offer an opinion after the review of the records whether there is a relationship beteen his currently detected lung carcinoma and exposure to asbestos in the service, or to opinion as to any other etiology." Nothing about when the cancer may have started. Also - the guy NEVER saw him - yet stated that he had NO apparent residuals from the lung cancer (though he had a lower lobe removed, an 11 inch scar from the surgery, the same day the VA examiner indicated he reviewed my medical records – a pulmonary function test done the SAME DAY at the VA noted he had dyspnea on hills and stairs, frequent wheezing, and decreased FVC (73% predicted) and decreased FEV1 (69% predicted His DLCO was 51%. My husband never got a copy of this report until we started trying to build his claim last year. My husband's ORGINAL letter to the VA to add the claim stated that he had orginally been misinformed and told the cancer was small cell - which can have a rapid growth rate. However, on his annual follow up - upon reviewing the path report - they discovered that the cancer was nonsmall cell - adenocarcinoma. He reported that the doctor had explained the doubling time - and told him that to be the size it was when it was discovered and removed - it would have been in place for at least 12 years, and more likely 15 years - which would have placed in somewhere in the middle of his unbroken 28 year military career. THAT was his claim. He sent along the sheet where the doctor had written out the doubling times, and how they are calculated, and at what time frames the cancer would have been what size. He ALSO sent another attachment that said - to further support my cancer claim - I am attaching evidence of asbestos exposure while I worked as an electrician. The physician notes in the record also support his report --The doctor noted - the patient was misinformed about the type of cancer. It is NOT small cell. It is adenocarcinoma. Important differences explained to the patient. Yet the VA ONLY addressed the asbestos part. They did not even ASK the C&P examiner to issue an opinion on the approximate date of onset. When my husband got his denial - His NOD again focused on "I am CLAIMING that the cancer STARTED during my military career!" He went into the details again. The DRO just restated what the original denial said. And BOTH of them just looked like they had just read the C&P exam. I think they just did the topsheeting thing. He didn't send in the strongest evidence in the world - I realize that. he didn't have a written opinion where the doctor came out an said _ I am writing this opinion for XXX because XXXX and I think his cancer started in the service. However he did provide him with evidence that the cancer he had commonly takes 6 months to double - 35 doublings to reach 3 cm. - which would take about 15 years. I have seen quite a few cases where the BVA would actually treat this evidence as stronger evidence...because he wasn't a doctoer hired to write a favorable opinion. He was an Air Force doctor who treated my husband and documented the evidence within his notes. We submitted additional evidence this past year to strengthen that. The National Cancer Institute SEERS TRAINING PROGRAM, Various Medical Schools, etc, (VERY reputable sources ALL give about the same doubling times for pulmonary adenocarcinoma. 180 days is the STANDARD. (My husband had submitted some before - but they weren't from as reputable of sources - I try to go for the gold on sources.) And granted ALL adenocarcinoma doesn't double in exactly 180 days. But we are not talking about someone whose cancer was discovered 12 years later saying they had it for 15 years. We are talking about someone who has a cancer that the standards of medicine estimate would have taken 15 years to reach the size it was when discovered - and it was discovered LESS THAN TWO YEARS after he retired. And with 28 years in the service - that pretty well puts it in the service. So to not ever acknowledge in any of their writing that my husband alleged that it started in service. To not ask THEIR doctor to give an opinion on it. To not mention the report from HIS doctor. To merely mimic back the C&P notes. I don't think that merely mentioning your cancer was not diagnosed in the service or within the presumptive period really addressed the issue - because the medical evidence of record had already shown that the cancer would have been in place for a long time before it was diagnosed. Had they acknoweldged in ANY way that he SAID his cancer started in the service - and addressed that in ANY way (even if they were wrong in how they addressed it) --I think they would be covered. But no matter how much he told them he wanted them to address the fact that it STARTED in the service -- thye just totally ignored it. Even this past year - he wrote them and told them that the fact that his cancer had started in the service had NEVER been addressed - and asked them to adjudicate the unadjudicated issue. What was their response? They sent him a letter telling him what New and Material Evidence he needed to send in to prove ASBESTOS EXPOSURE!!!!! ACK!!!!!!!!!!!! Free

Good points. I also liked how you point out that people that argue with your evidence are giving you keys to strengthening your argument. Actually - I wasn't using the night sweats and fatigue as a CUE, per se. I still maintain that the RO did not adjudicate the claim. My husband submitted a handwritten note from his doctor (from the Sir Force Base)- indicating the doubling times of pulmonary adeneocarcinoma - and number of doublings it would take for the tumor to reach 3 cm - and the standard time it would take for that kind of cancer to reach that size. The doctor had estimated that it would have taken 12 - 15 years. (My husband had a 28 year military career - and was diagnosed 2 years post retirement). The night sweats and fatigue part - more addressed the issue of showing SYMPTOMOLOGY that MAY have been connected - in retrospect that DID appear within the presumptive period. THe very nature of lung cancer is that it is usually asymptomatic until it is in the late stages of the disease. Actually, my husband wasn't "ill" when it was diagnosed. It was discovered on a physical he was getting to be a bone marrow donor. So I am not maintaining there was a CUE because they didn't recognize that night sweats and fatigue may have been cancer related. I am maintaining there is a CUE because though there was medical evidence in the file that his cancer DID start during the service - and no MEDICAL evidence that it did not start in the service - they did not really address that part of the claim. Though his initial claim was that his cancer had started in the service - the C&P examainer only indicated that he was asked to issue an opinion as to whether his cancer was related to asbestos exposure. He did not issue an opinion, nor does it indicate he was asked to, about WHEN the cancer may have started. The BVA manual says that if the RO just states that a disease wasn't diagnosed during the service or presumptive period - that should be appealed - because that is making a medical decision without backing it. Is it a medical fact the disease wasn't diagnosed? Yes. But is it a medical fact that the disease could not have started in the service because it wasn't diagnosed then? No. Not unless they give medical rationale for it. Especially when he had the note from his doctor indicating it did start in the service. Of course, the doctor didn't STATE it started in the service. But he did say that it probably started 12 - 15 years earlier. To just say your cancer didn't start in service doesn't take into account the laws on post-service diagnosis of disease. If they just went by symptomology --then the night sweats and fatigue would have to come into play. I would agree that link could be made - but would be REALLY weak in trying to say there was a CUE because they didn't notice that part. To me the cue is that they were provided with medical evidence of the growth rate of cancer - and totally ignored it.And they did not counter it with any medical evidence. There are all kinds of cases at the BVA where they grant Service Connection based on the growth rates of cancer. In fact when I typed in a search for doubling time -- I found case after case where service connection was granted for cancer - based on that alone (with no symptomology being reported). Hey! If lung cancer is usually asymptomatic -- maybe the lack of symptoms would BE a symptom of the nature of the disease. That would be a stretch - but we did send in supporting info that the diease usually has NO symptoms until its late stages. Yes. I know now in retrospect that factor should have been appealed. I know that after studying the VA compensation system diligently for almost a year. Vets have not been allowed attorneys - but to really succeed have had to have knowledge of someone with a law degree. The BVA is where I keep getting the impression that they separate claims out - where direct and indirect are considered somewhat separate claims -- and not one claim where they only develop part. http://www.va.gov/vetapp04/files/0405741.txt In February 2002, the veteran's representative argued that service connection on a secondary basis for obesity and for lower back arthritis was warranted. In August 2002 the veteran's representative again suggested that the veteran's obesity was secondary to service connected disability. The Board notes in passing that while service connection on a direct basis for low back disability has been denied on numerous occasions, service connection on a secondary basis under 38 C.F.R. § 3.310 for low back disability has never been adjudicated by VA. And even when they accepted his claim they refered to it as cancer TO INCLUDE as due to asbestos exposure. However, after the first letter accepting the claim - all the decisions just stated his claim was cancer DUE TO asbestos exposure. They completely dropped the ball on the DIRECT service connection. The VCAA letter just told him what evidence to submit in regard to asbestos --not inservice occurance. I know that failure of duty to assist can not be a CUE. But they never even said they were issuing a decision on whether his cancer started in the service. They just said they were issuing a decision on if it was due to asbestos exposure. Had they sought a medical opinion of when his cancer started and that opinion did not agree with his doctor's note - that would be different. But he had a note from the doctor that indicated adenocarcinoma took 12 - 15 years to reach the size his was when it was diagnosed... and they sought had no conflicting evidence - To me - if a doctor provided evidence that the cancer was probably about 15 years old when it reached 3 cm - and it was 3 cm when diagnosed in 2000 - then to deny the claim merely because it wasn't diagnosed in 1998 is a CUE. The laws are pretty clear that service connection should be granted for diseases diagnosed post service when all the information shows it most likely was incurred inservice. I know how they weighed medical evidence isn't a cue. But there wasn't any weighing to it. The only medical evidence of record was that which supported that it DID start in the service. Oh..and the symptomology that looked at in retrospect that would show a 10% disability during the presumptive period is only to grant PRESUMPTIVE service connection. Service connection can still be granted by: §3.303(d) clearly states: “Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.” Free

Is showing you were someone's spouse more difficult than getting Service Connected? I sent them the Death Certificate --which listed me as the Surviving Spouse - and a copy of our Marriage License. I am wondering what kind of evidence they need. Though I can kind of see where they sometimes question the spouse status - as I was reading quite a few appeals where people were claiming to be the spouse - but were not. But that was mostly common law relatiosnhips. They go to great extremes to disprove those - they send field workers out to question neighbors and family members to see if they had been living together and holding themselves out as husband and wife. Most of them seemed to be pension cases. And a lot of them were denied at the BVA level - as they really weren't common law spouses - or many times even living with the veteran. And there were also cases of people claiming children they don't have. I found that aggravating that so much of the VA resources are wasted on disproving fraudulent claims. However - I was not seeking a pension. I was seeking to keep my husband's $225 payment. I was legally married. I sent the VA valid proof. I imagine they will spend over $225 in VA resources in the case before they ever figure it out. Free

The backlog will actually be to the attorney's benefit - since so many vets are not 100% disabled - The larger the retro check - the bigger the attorney's check when all the small claims are finally approved. However, like Social Security - the attorney's will pick up plenty of cases that are pretty straighforward and simple to get through. One things Vets have to keep in mind is to also keep the attorney's accountable. Make sure they aren't doing an inefficient job -- and blaming the VA.

The IRIS response actually answered my questions...and was even personalize. I was pretty impressed with that. The last person I talked to at the VA phone told me they were sending the C-file - and that I should get it in 30 days (a couple of months ago). So I need to send a written request. I guess I should have done that a couple of months ago - even though she told me I didn't have to - because they were sending it. I think I will write and ask for an appointment - and follow up with IRIS if I don't hear back from them. They sent me a letter letting me know they got my DIC claim I sent in May - but I never got any acknowledgement of the Statement I sent to keep his last check that I sent in March. I sent a copy of our Marriage license along with that. But they say there is no evidence in the file that I am his wife. So I guess they will be taking their money back. And I might even get it back some day. Free Dear Mrs. xxx: We cannot send copies of Mr. xxx c-file to you based on a request that he made prior to his death. We would need a new written request from you. If you would like to review Mr. xxx claims file, we would also need a written request and we can then schedule you for an appointment. Because office is in Chicago, it would be much easier for you if we sent you a copy of the file. But we must have a written request over your signature to release the information. Regarding your question about the check for the month of February, if the Department of the Treasury has taken action to reclaim the check, we can't stop them at this point. If you are filing a claim for widow's benefits, your claim will also make a claim for that returned check. You may be entitled to benefits as the veteran's widow. We are mailing you VA Form 21-534 (Application For Dependency And Indemnity Compensation, Death Pension and Accrued Benefits By A Surviving Spouse Or Child). You can also find this form on-line at http://www.va.gov/vaforms . We cannot, at this time, reissue the check because there is no evidence in the file that you were Mr. xxx spouse. We regret we couldn't give you a more favorable response. Thank you for visiting our website Sincerely yours, Suzanne Lowe Veterans Srvice Center Manager 163