free_spirit_etc

Thanks a lot! This really helped me tailor my response. I am not sure how successful I will be in getting them to pay the claim - but I sure don't intend to give them any assistance in denying it. LOL @ getting out your checkbook. It would seem the insurance company could easily find out if the surgery was inpatient or outpatient - if they really wanted to. We applied for a waiver of premium - for disability - before my husband died. All the policy said was you had to send in a written request - and proof of disability. I sent in a letter - and a copy of a form the doctor filled out for my husband's student loan discharge. They sent us their FORM right before my husband died. They denied the claim for waiver of premium - quoting policy language that the claim had to be submitted while the person was alive. I had to write them back and point out that the claim WAS submitted (in writing, with proof of disbility) prior to his death. It was just not on THEIR Form. They sent me a check for a refund of the 12 month premiums in one week. LOL But it ticks me off that they even play those games. This case is a credit life claim. They keep wanting me to sign the form to release his medical records. As the form says I don't have to sign it and that the company doesn't condition payment of the claim on whether or not I sign it - I keep declining their invitations. Free

Thanks! I have been doing some battling with an insurance company over a statement they want me to sign. The most current letter said "if we don't receive a signed and dated statement" and / or hear from you in the next 30 days, we will close the claim.' The authorization they want me to sing actually STATES "“ I understand that I may refuse to sign this authorization and that XXXX does not condition payment of a claim for benefits on whether or not I sign this authorization.†But I get the feeling they are putting me in a catch - 22 -- If I raise heck that they are trying to force me to sign a statement that SAYS I am not required to sign it - they can come back with "We said OR hear from you - we didn't try to MAKE you sign it." But if I don't sign it and they hear from me - they can say "WE said AND sign the statement." Free

Would he need an appeal? Wouldn't a file for increase a month after the Sept 06 decision be an NOD that he disagreed with the rating(which he had one year to file)? They could go back to the original claim date, in that case. But their other move would be to set the date of the 100% to the date they decide he actually became 100% disabled.. Free

This isn't really an issue with the VA -- at least not at this time - but could be for others.. What is your interpretation of the use of and/or. If someone says you must do this and / or that... Are thay saying either or both? My concern is I don't want to do this. But if I do that --they will focus on the AND (i.e. we said both) But if I object to them trying to do this --they will focus on the OR (i.e. we said this OR that..we didn't try to MAKE you do this..) Free

Yes, I see that they pay a set amount for half time to full time. But it says you can go under half time, but they only reimburse you for tuition if you go less than half time -- and they only reimburse your tution up to the amount of a half time student. So I guess if the tuition for one class is higher than what you would have recieved over the semester for being a half time student -- you would have to pay the difference. less than 1/2 time more than 1/4 time $429.00** 1/4 time or less $215.00 ** Correspondence - Entitlement charged at the rate of one month for each $860.00 paid. ** Tuition and Fees ONLY. Payment cannot exceed the listed amount.

http://www.cpdr.org/patient/ustoo/0207.pdf Somewhat informative link --Walter Reed Medical Center Prostate Cancer Support Group. Has some info on Prostate Cancer and Vietnam Vets. Also eligibility for SMC for Prostate being removed or nonfunctioning from radiation.

It looks like they pay the set amount for anything above half time -- and oonly reimburse tuition if you are going less than half time. But the tuition reimbursement for less than half time is limited to a monthly payment for a half time student. If they pay for other things - like testing - they charge your account for the number of months that money equals in benefits. I am wondering if they do the same if your tuition is higher than the monthly benefit - reimburse the tuition - and charge your account for than number of months. Free

I guess they don't pay anyone on the first of the month anymore. I know the Wednesday thing can be a pain -- because your creditors want paid on a certain DATE --not by the third Wednesday. Months that START on Thursday means the whichever Wednesday you are on come a week later. Hopefully your kid's payments will follow pretty quickly. I think once they get it going - it stays pretty smooth. We didn't get my son's check once --and they replaced it in a few days..(SSI) Free

WELCOME TO HOLLAND by Emily Perl Kingsley. c1987 by Emily Perl Kingsley. All rights reserved I am often asked to describe the experience of raising a child with a disability - to try to help people who have not shared that unique experience to understand it, to imagine how it would feel. It's like this...... When you're going to have a baby, it's like planning a fabulous vacation trip - to Italy. You buy a bunch of guide books and make your wonderful plans. The Coliseum. The Michelangelo David. The gondolas in Venice. You may learn some handy phrases in Italian. It's all very exciting. After months of eager anticipation, the day finally arrives. You pack your bags and off you go. Several hours later, the plane lands. The stewardess comes in and says, "Welcome to Holland." "Holland?!?" you say. "What do you mean Holland?? I signed up for Italy! I'm supposed to be in Italy. All my life I've dreamed of going to Italy." But there's been a change in the flight plan. They've landed in Holland and there you must stay. The important thing is that they haven't taken you to a horrible, disgusting, filthy place, full of pestilence, famine and disease. It's just a different place. So you must go out and buy new guide books. And you must learn a whole new language. And you will meet a whole new group of people you would never have met. It's just a different place. It's slower-paced than Italy, less flashy than Italy. But after you've been there for a while and you catch your breath, you look around.... and you begin to notice that Holland has windmills....and Holland has tulips. Holland even has Rembrandts. But everyone you know is busy coming and going from Italy... and they're all bragging about what a wonderful time they had there. And for the rest of your life, you will say "Yes, that's where I was supposed to go. That's what I had planned." And the pain of that will never, ever, ever, ever go away... because the loss of that dream is a very very significant loss. But... if you spend your life mourning the fact that you didn't get to Italy, you may never be free to enjoy the very special, the very lovely things ... about Holland.

http://www.socialsecurity.gov/pubs/10077.html#about When and how your benefits are paid Social Security benefits are paid each month in the month following the month for which they are due; for example, you would receive your July benefit in August. Generally, the day of the month you receive your benefit payment depends on the birth date of the ­person on whose earnings record you receive benefits. For example, if you get benefits as a retired worker, your benefit will be determined by your birth date. If you receive benefits based on your spouse’s work, your benefit payment date will be determined by your spouse’s birth date. Date of birth Benefits paid each month on 1st - 10th Second Wednesday 11th - 20th Third Wednesday 21st - 31st Fourth Wednesday If you receive both Social Security and SSI benefits, your Social Security payment will arrive on the third of the month and your SSI payment will arrive on the first of the month.

I don't remember the dates now -- but the day you get your payment depends on when your birthdate is. My husband got his on --I think it was the third Wednesday of the month. They don't send them all out at one time anymore. They send them all through the month -- but you will always get yours at the same time each Month -depending on your birthday. Free

I called the VA today. Haven't got a response on the IRIS inquiry on them reclaiming money from my account. THe woman told me that the have to reclaim the money and then issue me the check in my own right - a check made out to me. I told her about the form I had sent in asking that the money not be reclaimed as I was entitled to it as surviving spouse. The form I sent in per RO directions. She wasn't impressed. I asked to her CHECK the file. So she said she would. Amazing they just spout off info without even checking the file to see what is going on. She said they DID get something from me May 31. I said does that mean they will stop the reclaimation process. She said Yes.. Yeah right... What they got May 31 would have been my DIC claim. I have no idea what happened to the form I sent in this March - for the final paycheck. But she told me what she needed to tell me to get me off the phone... There was no sense asking any more questions to someone who is just going to tell you whatever... Don't know why I bothered calling.. And the bank told me they don't usually notify people of garnishments and reclaimations because people KNOW they are coming. Sure caught me by surprise. But it is kind of a thing like you are a bad person because you haven't paid the people you should so they are pulling it out of your bank account. Life sure was easier when my husband was alive. Now I am a so-called bad person who doesn't even deserve to be told that someone is taking my money. Right now I kind of hate the VA. If they wanted it back - they shouldn't have told me to keep it. They should have just told me to send it back. To care for him who shall have borne the battle and for his widow, and his orphan Yeah..right... They send the veteran $225 - tell his widow she gets to keep it --and then sneak behind her back and snatch it away from her like the thief she is for trying to keep that government money. The VA has an odd way of expressing their condolences. Free

Yep..my son hasgot the Pervasive Development Disorder diagnoses too. For me it helped so much when I read about Autism - as I could finally start putting into place all the pieces of the puzzle that didn't make sense for so many years. My son was in Early Childhood Education too - and even at a young age they could agree SOMETHING was wrong - but they never knew what it was. When I first read about Autism - it was like OMG! THAT IS IT!!!! Instead of being devastated, like they say parents are when discovering it --I was HAPPY!! I FINALLY know what it is! I FINALLY know what to call it! I FINALLY know some things I can do about it! Yet the Social Worker warned me about "reading into" the info and trying to self-diagnose -- or diagnose my son, as the case may be. But about a week later - she said -Oh the doctor said you are right. Yet - the doctor put the PDD diagnosis on it... but talked all the time about Autism. So I said - why don't you label it Autism in writing? Well - you know we hate to LABEL kids (Yeah - right - you labled him PDD) --and different people use different terms so it doesn't matter what the label is (Yes it does - it matters for insurance, for education, etc.) And if we label someone with Autism the parents get so upset (NOT me! I am happy that I finally know what is going on after all these years) Then he told me that instead of trying to label it -- we should focus our energy on helping my son.. (Yep, labeling takes a lot of time and energy). So I said "Okay. What do you suggest we do to help him?" He shook his head and said "I don't know." ACK!!!! I ran across a neat website a few years ago called "Whoops. Wrong Planet" that talked about instead of trying to change our kids into what people think they should be -- we should accept them as they are. Autism also runs in gifted families. Personally, I think the brain is evolving and rewiring itself -- and these kids are the FIRST stage of that. I think they will be the "missing link" of the future brains. But right now, my son is 27 going on 12 -- and that dance you do to protect the 12 year old without offending the 27 year old is quite a juggle. Free

Thanks Berta, I have seen the BVA already likes to copy and paste the part about all decisions being final. The CVA though does address in their opinon that the claimants relaince on Hodge and Roberson v. Principi was misplaced because he had not argued to the VA that his claim remained unadjudicated --before reopening his claim. In my husband's case - his NOD specifically challenged the fact that his DIRECR SC claim was not addressed -- he sent in more evidence LAST YEAR to ADD to his pending claim - He sent a letter last year asking the RO to adjudicate the unadjudicated claim - once again pointing out that they had never addressed the issue. He also sent a letter asking for the status of his claim last August - asking if it had been closed or not - and if it had - that he disagred with any decision that was made to close it (in essence, a NOD). So different cases MIGHT apply - as his case is not just one where after he was granted benefits he went back and argued that the case should have been adjudicated -- He has made that claim all along - and the RO has never responded. I still keep reading the decisions to say that the failure to adjudicate a claim is in and of itself basis for a cue..though it looks like the BVA interprets it to mean that if one claim has been denied all other claims can only be reopened by OTHER cues. I guess I will have time to see how all the decisions play out before it would be time for me to file such a claim anyway. This is what has taken me so long in putting together my husband's claim -reading the court cases and seeing that you should have argued this at this point and that at that point --which is why we have tried to argue everything we were suposed to argue at the points that we were. And my husband's case isn't one where we are coming back later and saying "You should have known I was applying for this when I filed for that.' He has specifically argued all along - ADDRESS THE DIRECT SERVICE CONNECTION PART OF MY CLAIM!!! I know you said the whole claim can be resurrected by the widow. Does this mean I should start bringing these things up in my intial claim --or should I just go for SC and address all the other issues later? I also see that this decision really addressed the VCAA notice -- and that the Vet was NOT given approriate notice of what he needed to participate in his claim. I know this is not a cue -- but is one of your battles with them right now. Free

OOh - I didn't think about the driving issue thing. I would think as long as you could pass the eye test at the driver's license place - you would be able to drive. The test can't be real hard to pass. I was afraid I would fail it when I was wearing my old glasses - and Eek! I PASSED! Scared me into getting NEW glasses when I realized there were OTHER people on the road who couldn't see any better than I could. My son is also high functioning autistic. took them forever to figure that out --when he was 14. Actually, I am the FIRST person that figured out what in the heck it was. When I read the info on autism --it HIT me --OMG! That makes SO MANY things make SO MUCH SENSE for SO MANY YEARS. At that time (1993) they still didn't know as much about mild, or high functioning autism. They are doing better now. Have you applied for SSI ir SSD for your daughter? If a child is disabled in a way that would preclude an adult from being able to fully support themselves --they should be granted disability. With SSI - they deem the income of the parents until age 18. But if you get a determination that she is disabled - but ineligible due to income - you still have a record of a pre-18 declared disability. Actually, if you get SSD - she can draw child's benefits for SSD PAST age 16 - as long as she was declared disabled. There is an important distinction for MANY benefits for a disabled person depending on whether they were deemed disabled PRIOR to or AFTER age 18. If it is prior to 18 --they can remain eligible for practically ANY benefit a child is eligible for (our health insurance, your SSD, etc. etc. etc.) If you have a child that becomes SEVERELY disabled at age 19 --tough luck for them - they don't qualify as your "child" anymore. So depending on many factors known only to you -- you may want to check into the pros and cons of getting a disability determination for your daughter. And I know that you already know--don't believe everything they tell you - 'cause they just make it up as they go along... And - by the way -- it hasn't "worked out" for me on the SSD yet -they are still playing their silly "we don't know what we are doing and so we will act like it is you that doesn't know games." SSD made a determination that my son was not eligible for benefits on my husband's record because "the facts do not show that he was living with or recieving contributions for support from" my husband at the time of his death... WHAT FACTS??? SSI HAD CUT HIS BENEFITS by 1/3 BECAUSE he was LIVING with us AND RECIEVING SUPPORT from my husband!!!!! How in the Heck can SSI CUT his benefits because of him living with us and getting support from us -- and SSD say he was NOT living with us and recieving support??? The caseworker at SSI said SSD probably doesn't check the SSI interface. Then what facts did they use??? They must have just pulled their facts out of thin air.. because his application said he was living with and recieving support, SSI said he was living with and recieving support.. my husband's OBITUARY said he was living with us...etc. etc. And I got a letter that I was not entitled to any other benefits (based on the inital application -for lump sum death benefits that say I am applying for ALL benefits to which I am entitled.) So I appealed because they had never let me APPLY for Mother's benefits. They kept giving me all kinds of reasons that didn't corrospond to the law for why I couldn't apply. So I appealed and said I would like to be allowed to APPLY for benefits before a decision was made that I was not entitled to them. OMG! They had a cow!! And told me I couldn't even GET Mother's benefits UNTIL my son was eligible (you have to have a qualifying child of the deceased in your care). Well - I KNEW that --but if they don't want me sending in appeals --then they need to STOP sending me premature decisions saying I am not entitled and only have so many days to appeal. Then, as my husband was in the process of adopting my son --and the adoption was finalized AFTER his death --they decided the best thing to do was hae my son and I apply TOGETHER --as the adoption would take away the need to prove my son was living with or recieving contributions for support (he would be "deemed" dependent). However, I told them I still want the record corrected. Thye said what the record said before doesn't matter -- since he was adopted. Well it matters to ME - because I don't want a DETERMINATION by a Federal Agency that my son was not living with us or recieving support from us to come back and bite me in the butt later somewhere else (well, Social Security says..blahblahblah...) And thatbugs me because these agencies will be the FIRST to say that something in the record matters -- but if YOU are worried about correcting the record --they tell you it doesn't matter what the record says. Anyway --they let us apply together --and guess what? Then have "decided" my case - but not my son's. I have been denied benefits as I don't have a qualifying child in my care... ACK!! I want to grab them by their brains and scream 'OF course, the record doesn't show I have a qualifying child in my care!! Because you have not processed my son's application to FIND OUT!!!!!!!" Something is up with that because they decided and denied my claim NINE DAYS after I applied!! Heck you have TEN DAYS to report any incorrect statements in the application --and they decided my case in NINE DAYS?? Looks like they were in a hurry to deny me.... I have no idea why if getting Mother's benefits is contingent on having a qualified child that they would rush the Mother's application through in nine days without considering the application of her child. they are really giving me the royal run around..... Free Free Free

I sure don't know why --but all roads seem to lead me to CUES. I can go the the BVA site and type the word "frog" in a search -and end up pulling up decisions about CUES. Anyway - in researching my own question I ran across: http://www.legion.org/pdf/vt_circuit_0806.pdf Claims for Retroactive Benefits Where There Was a Deemed Denied Claim This type of claim presents itself when a regional office grants service connection for condition Y but the effective date established by the RO is arguably incorrect because the claim should have been considered by an earlier (non final) adjudication. Because this area of veterans’ law is still in flux, advocates are advised to continue to file claims for retroactive benefits with regard to finally adjudicated claims if a regional office, in the past failed to adjudicate a claim that was reasonably before the RO, or the RO failed to provide proper procedural and appellate notice. • The representative should file a CUE claim against the original decision based on the failure of the RO to consider disability Y. The representative should argue that the failure of the VA to recognize and adjudicate the claim that was ignored constitutes clear and unmistakable error (CUE). If such a claim is denied, the advocate should file an NOD to buy time in the hope that Deshotel is overturned (by a higher court or by Congress). • Representatives are advised to continue to argue that because the claim was ignored and because the RO did not comply with 38 U.S.C. § 5104, the claim is still pending and the effective date should be from the original date of claim. The following is suggested language (boilerplate) for this notice of disagreement. In Richardson v. Nicholson, 20 Vet. App. 64 (2006), the CAVC held that appellants can argue that the failure to adjudicate a claim constitutes CUE. The Court held that the VA is required to determine whether the claim was or was not adjudicated. If the claim was adjudicated then the VA is required to consider the current CUE claim. If a claim should have been adjudicated but was not then the VA is required to now adjudicate that claim. This is a notice of disagreement because an earlier effective date should have been established because the rating decision dated [insert date] should have adjudicated this issue. If you determine that the above cited rating did consider this issue, the appellant contends that the failure of the rating to adjudicate this claim constitutes clear and unmistakable error. Please note that the appellant was never provided specific notice of this decision. See 38 U.S.C. § 5104. In the alternative, the appellant argues that the claim was still pending from the original date of claim when benefits were eventually granted. The veteran seeks appellate

ACK! On the laws part - since they copy and paste a whole bunch of laws onto the decisions - but don't really indicate in any way how that law was applied to your case. I will have to check the SOC and see if that is one of the laws they copied and pasted. One thing the Veteran's Benefit Manual had talked about was that if they state that a veteran's disease wasn't diagnosed until after service - without giving a medical rationale for why that matters in relation to the disease - the decision should be appealed - because they are, in effect, making a medical judgement about the medical condition without backing it up. If they say, your disease wasn't diagnosed until 5 years post service and accepted medical principles indicate that the incubation period for this disease is 2 years -- (and cite medical principles) THEN they have applied it correctly. But if they just say "Your disease was not diagnosed until 2 years after your discharge" PERIOD --they have made a medical judgement about the nature of the disease (by implying that WHEN it was diagnosed related to WHEN it was incurred)without backing it up with any medical evidence (relating to the nature of the illness). Our position is that post service records could show the disease had manifested with symptomology that would rise to a degree of 10% during the presumptive period. The major arguments we made for this was his consistent reports of fatigue and night sweats. He reported the fatigue PRIOR to his retirement. The VA did a C&P on the fatigue, to see if it was Desert Storm related. But this was before he knew he had cancer. The examiner stated he did not have fatigue at the level of Chronic Fatigue Syndrome, but he did not issue and opinion as to what was causing his fatigue. Actually, I had always heard of the fatigue that was related to cancer treatment - but was surprised to discover that it is actually one of the FIRST noticable symptoms of cancer - (often discovered in retrospect - Oh THAT'S why you have been so tired lately") and usually more severe in lung and ovarian cancer. "Fatigue was reportedly present at the time of diagnosis in approximately 50-75% of cancer patients." "Fatigue was the most frequent and distressing cancer-related symptom occurring in women with lung cancer, two times greater than the next symptom, pain, and remains one of the most common symptoms in newly diagnosed lung cancer patients at any stage of the disease” The 10% level is an interesting concept because the rating schedule indicates that malignant neoplasms are rated at 100% until 6 months after the cessation of treatment. 6819 Neoplasms, malignant, any specified part of respiratory system exclusive of skin growths 100 Note: A rating of 100 percent shall continue beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of §3.105(e) of this chapter. If there has been no local recurrence or metastasis, rate on residuals. So I would think this would indicate that if the fatigue was cancer related - it would indicate a disability of greater than 10%. Unless the fatigue, itself, had to be 10% disabling. But I would think if they granted that the fatigue was more likely than not cancer related - then the cancer was "manifest" by symptoms --and was 100%. Now - I know for a CUE the standard is higher than "more likely than not" - which is why the law would come into play...as in DID they follow the law on postservice diagnosis of illness in adjudicating his claim. But first I have to get the SC granted for the cancer --which is probably quite a distance down the road. And probably --some of the EED by a cue would depend on whether they address the fatigue in their decision on SC - and if they address it favorably. (i.e. if the RO or BVA states in their decision that it was more likely than not that the fatigue was a symptom that showed the cancer more likely than not had manifested during the presumptive period... THEN there would be a stronger case that an error was made in the first decision. Dream on....... Free

Does anyone know if DESHOTEL (July 27, 2006) has over-ruled the below? 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. The United States Court of Appeals for Veterans Claims has held that two issues are "inextricably intertwined" where they are so closely tied together that a final decision cannot be rendered unless both issues have been considered. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Deshotel case states: "Where the veteran files more than one claim with the RO at the same time, and the RO’s decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run. We considered this exact issue in Andrews F.3d 1278 (Fed. Cir. 2005), although the argument regarding a pending claim was made there by the government rather than the veteran." But it also states: "Relying on Roberson, 251 F.3d at 1383-84, we held that where an RO renders a decision on a veteran’s claim for benefits but fails to address one of the claims, that decision is final as to all claims; the RO’s failure to address the implied claim “is properly challenged through a CUE motion,” not a direct appeal.3" The reason I am asking is because this is similar to my husband's "two-pronged" claim for lung cancer: 1. That is was a DIRECT service connection - as it STARTED in the service. 2. That it was a SECONDARY connection in that is was related to his in-service asbestos exposure. The RO denied the claim on asbestos exposure - and even CHANGED the claim - The initial letter from the VA stated “We have received your claim for service connection for lung cancer, to include as secondary to asbestos exposure.” The February 2003 denial letter stated Decision: “Service connection for adenocarcinoma, left lung, due to asbestos exposure is denied.” However, it did not address the issue of direct service connection. But they NEVER addressed the DIRECT service connection issue, except to mention that his cancer was not diagnosed in Service nor within his presumptive period. However: §3.303(d) clearly states “Postservice initial diagnosis of disease. 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. And §3.307 (c.) states: “Cases in which a chronic condition is shown to exist within a short time following the applicable presumptive period, but without evidence of manifestations within the period, should be developed to determine whether there was symptomatology which in retrospect may be identified and evaluated as manifestation of the chronic disease to the required 10-percent degree.” (His 3.2 cm tumor was discovered one year after the presumptive period). So my questions are: 1. Does the 2004 BVA case above apply? As the two issues were "inextricably intertwined" where they are so closely tied together that a final decision cannot be rendered unless both issues have been considered. (I know a BVA case isn't a precedent - but the case THEY cite is) 3. Or does the July 2006 Deshotel case in Federal Court supercede that? 4. If the Deshotel case does supercede, since my husband requested the VA adjudicate his unajudicated claim for DIRECT Service connection PRIOR to the July 27 Deshotel decision -he kept telling them "I applied for DIRECT connection - you have NOT ADDRESSED that!" do the pre-Deshotel decisions apply to this aspect of his case? 5. As the Deshotel case states "where an RO renders a decision on a veteran’s claim for benefits but fails to address one of the claims, that decision is final as to all claims; the RO’s failure to address the implied claim “is properly challenged through a CUE motion,” not a direct appeal.3" - is that saying that the failure to address one of the claims is in and of itself a CUE? I think we would still have a CUE on failure to apply §3.303(d) And §3.307 (c.) Because §3.303(d) Post-service diagnosis of disease SPECIFICALLY addresses diseases which were diagnosed AFTER service - and doesn't give the VA the authority to simply dismiss Direct Service connection with the excuse that it wasn't diagnosed in service - without giving medical rational for why the post-service diagnosis would preclude it from being Service Connected. Also And §3.307 (c.) states: “Cases in which a chronic condition is shown to exist within a short time following the applicable presumptive period, but without evidence of manifestations within the period, should be developed to determine whether there was symptomatology which in retrospect may be identified and evaluated as manifestation of the chronic disease to the required 10-percent degree.”Symptomatology shown in the prescribed period may have no particular significance when first observed, but in the light of subsequent developments it may gain considerable significance. Cases in which a chronic condition is shown to exist within a short time following the applicable presumptive period, but without evidence of manifestations within the period, should be developed to determine whether there was symptomatology which in retrospect may be identified and evaluated as manifestation of the chronic disease to the required 10-percent degree.” I would think this would be DIFFERENT than a Failure in Duty to Assist - in that they did not DEVELOP the claim as directed by law - looking over the evidence OF RECORD to look at it in the light of subsequent developments. So once again, failing to address why medical evidence of record would preclude Service Connection of a disease that was diagnosed AFTER the presumptive period -could be a CUE - because section §3.307 (c.)sets out specifically what the VA is supposed to do if a chronic condition is diagnosed AFTER the presumptive period (which automatical ASSUMES that it was not diagnosed WITHIN the presumptive period.) So once again, a simple "your disease wasn't diagnosed within the presumptive period" doesn't show any attempt to consider and apply the LAWS that SPECIFICALLY tell them what to do if a disease is diagnosed after such time. But does anyone know if according to Deshotel - failure to adjudicate an issue is a CUE on its own right? Free

I am not quite sure why you don't want them saying you are partially blind. Legal blindess really bumps your benefits up with Social Security (and most agencies). It is the one disability that is singled out for higher benefits, higher tax deductions, higher allowable income, etc. But yes..I get what you mean about the run around. When I first applied for SSI for my son - he was hospitalized. I was REQUIRED to apply for benefits as if he recieved any - they were to be used for his hospitalization. I am grateful for this requirement - because I never would have even thought of applying for benefits before - and he was approved on the first attempt. However, they sent me a letter telling me that he had to go to an appointment with a psychiatrist for an evaluation. He had just been transfered to a different hospital several hours away - so I called them. They told me he wasn't eligible for an "outing" until he had been there a certain amount of time. So I inform SSA. They say he HAS to go to the eval appointment. I said "You want me to check my son out of a mental institution and drive a 6 hour round trip to take him to a doctor to see if he has a mental problem? Is something wrong with this picture?" And this time around - trying to change him from SSI to SSD has been equally frustrating. When I first took him in to apply on my husband's record - they just said he was too old. I told them he was an adult disabled child. They asked him if he had ever worked - He said Yes. Thye told me - then he is NOT disabled - so he is not eligible. I said he was DECLARED disabled in 1993 by YOU! SSI was fully aware that he worked part-time last year! All of his income was reported to SSI! So they checked his record and saw that he only made a couple thousand dollars in his LIFE --and decided they would let him apply. Then they sent a letter telling him he had to fill out an adult disability report prior to his appointment. I called asnd asked "Does he have to fill this out - as he has already been DECLARED disabled. The only question is dependency on my husband's records." I was told he had to fill it out - as SSD was a different program that SSI --and though their forms and standards were the same - he disability would have to be "re-determined." So I spent a couple hours filling it out - took it to the office to the appointment - and the case worker said 'Oh..I don't need that - He has already been declared disabled by SSI." ACK!!! And when THEY don't know what they are doing - they act like it is YOU that is stupid or something. I can go on and on and on about the run-a-round we have recieved this time. Free

Tamara, Actually my son has done quite well with the Social Security Docs. His disabilties are mental though. But I have nevr had to fight THEIR doctor's reports. He has even had a couple re-evaluations. The first time - I got a letter that their would be no change in his benefits (meaning he would STAY on) before I even finished with the paperwork to send in. THe second time - the doctor came out in the hall and told me that my son would continue on benefits. Free

Concerning effective date of award: It is my understanding that as long as you file the DIC claim witin one year of the death - the effective date is the first day of the month AFTER the death. If the DIC claim is filed after one year from the death - then the effective date is the date they recieved the claim. Of course, to preserve your place in line,(when it will be your turn to have your claim processed) I guess you could file the DIC claim -and send the death certificate in when you recieve it. I am still trying to untangle the whole concept of which checks the VA tries to gt back. My husband died Feb 5 - and the VA is trying to reclaim his Feb 1 payment from my account. So don't be surprised if they don't also try to take back the May 1 check. The VA is hard to figure out - as they put bits of info here - and bits of info there - and you have to find them all and put them all together. The surviving spouse is entitled to the check for the month of death that the vet would have recieved had they been alive. But I am still trying to figure out WHICH check that means -- and the complex rules for getting it. The VA told me that due to my husband's Feb 5 death - they would recoup his Feb 1 payment unless I sent in a Statement in Support of Claim indicating I was his surviving spouse and entitled to it. I sent that in, however, 3 months later they are trying to recoup money from my account. It is hard to figure out their rules -- and even if you do - it doesn't seem like they play by them. Mostly because of the complexity of all of the rules. What would be so hard for them to be CLEAR - to give an EXAMPLE of WHICH checks count.. Like -- If the vet dies ___ date the spouse is entitled to the ____ check , but not the __ check. but they have to complicate it with all their rules about IF the spouse applies for pension --and gets the pension --they get the pension instead of the check.. or IF the spouse applies for DIC - then they WAIT 100 years until the DIC is decided before deciding whether to give you the final month check (which they haen't clearly defined WHICH check is the final month check - the one PAID the month they died..or the one Paid AFTER the month they died... If DIC doesn't start until the month AFTER death- then it would seem like the check for the month OF death would belong to the spouse.. But all I know is that in MY case -- they are trying to recoup the check that was paid four days BEFORE my husband died. Free

Thanks for the info - I will certainly ask the bank for an "action request" Maybe that is why they haven't taken the money out yet - because I have to have 30 days to dispute it. Though I would say not informing me that the VA was trying to recoup funds would decrease the chances I would dispute it. I have recieved nothing from the bank. I just noticed my funds were not balancing right and called to ask. The woman on the phone who told me what was going on said she had to "dig" to find out what it was. I will do some more investigating on the payment provisions. It would seem that if the VA pays one month behind -- and the surviving spouse is entitled to the vets benefits he WOULD have recieved the month of the death HAD he been alive - that the VA shoud not only NOT try to recoup his Feb 1 payment, but actually be leaving THAT alone AND dending me his MARCH 1 Payment too! Free

I thought they were a month behind too. It would certainly seem like if the Feb 1 payment is for January, that the payment would belong to his Estate then, if the person didn't have a surviving spouse. Or it would belong to whomever was POD on the bank account. I don't understand how - if the Feb 1 payment is for January - and the person died Feb 5 - the VA would have any legal authority to recoup a payment for a month (January) in which the vet lived through the entire month. But they try to recoup any payment made on the first of the month - for the month in WHICH the person died -- and ONLY will pay that amount to a surviving spouse. If the Feb payment is for January - as long as you are alive Feb 1 (the date it is paid) it should belong to you - and pass on to your Estate, POD on the bank account, etc. It does not seem like the VA would have any legal authority to recoup payments to which you were actually entitled. Free

Hey! Thanks for the reminder! I checked MY bank account again --and it has been almost a week and a half - and the bank still has a HOLD on the funds the VA wants to suck out of my bank account --but they haven't actually sucked them out yet. At least I don't think so. Who knows - they put a hold on them without ever informing me or showing what the hold was for on the account - so they might have taken the funds out without telling me. But my balance is still showing that I have $225 less funds available than are actually on deposit. I sent an IRIS in last week -- and the automatic response I got said they would try to respond in 5 days. but we are talking about Chicago. 5 days for Chicago might mean a year and a half. We used the IRIS system a couple of times before - and all they sent was a copy and paste response that had little to do with our question. When they were required to do the Outreach for Vets in the 5 state area Chicago serves because of the claim approval rate and ratings being so out of step (lower) than the rest of the world - we used IRIS. We never got the letter they were supposed to be required to send all vets in their area to let them know they could reapply, due cues, etc. if they thought they should have been arrpoved or if their rating was low. The Outreach page at the VA stated the same thing. However when we responded to their outreach through IRIS (though we didn't get a letter) they just sent back a blanket response about people being approved or rated according to their disabilities. So Congress MADE them do this whole outreach thing because their ratings were so poor -- to get ahold of vets and let them know they could object to their ratings -- But they didn't send out the letters (or my husband's at least) AND when we did respond - we got something that basically said "You got what you deserved - live with it." So much for the Outreach.... Anyway - I DID send a letter to my bank "politely" letting them know that I didn't appreciate them putting a hold on funds in my personal account because of VA's attempt to get funds that were paid to my husband BEFORE his death back. From what I read on banking regulations they are allowed to INFORM the VA of the name and address of anyone who used the funds or had access to the funds. But I don't see anything that authorizes the bank to just TAKE them from my account because the VA has changed their mind and decided they want them back (or place a HOLD on them.) Legally, his account transfered to me at his death. That should include all funds. The money in his bank account transfered to me. So the VA should file a claim against his Estate if they want the funds returned...as the funds in the account were no longer my husband's after his death - they were mine. Just as any checks not deposited prior to his death became the Estate's and could NOT be used by me. So actually, as these funds were transfered before his death -- the appropriate protocol should be for the VA to request them from his Estate -- and if they do get the funds from the Estate -- then issue a check to me as the surving spouse. Even if they take them from my account and THEN pay them back -- that is not appropriate -- as the money was MINE in the first place. They would be paying me back with my own money. Gotta keep the Estate stuff straight -- Of course, once the bank account came to me - I guess I was supposed to wait several months to spend the funds --just in case the VA wanted them back. And --what a STRANGE way the VA has of paying - they pay the benefit on the FIRST of the month -- FOR the month (NOT the preceeding month) --but then decide you have to live through the ENTIRE month to deserve the check they gave you. So if they pay you Feb 1 for Feb -- and you die on Feb 27 - they want the check back -- but then turn around and give it to the surviving spouse again, or at least say they do. Seems WAY too complicated! Because that means they go through that entire process for every vet that dies UNLESS they die on the last day of the month. Since the great majority of vets are only 10 to 20 percent disabled -- I wonder if they ever thought of just changing their regs to match those of every other organizaton - and say - your payment on the first of the month are for the month BEFORE -- and that way they could STOP most payments BEFORE someone is overpaid. Then they would only be dealing with recouping money from those who died at the last of the month - or those who didn't report the death. The way they have it set up --they spend A LOT of resources recuoping payments from almost EVERY vet - because only those who die on the last day of the month are safe (but by then, they have already sent out the NEXT month's payments - so they have to go after them too.) Thye make you wait forever, and then pay you a month in ADVANCE when you finally get something - and then spend more time harrassing your widow.... Free

But aren't most of the other Special Monthly Compensation things compensible in their own right - and then again under SMC? Yet most major organs are only compensible in their own right. When it got to the point I had to watch my husband struggle to breathe, his testicles didn't seem all that important. Free