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Inferred Claims

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free_spirit_etc

Question

I previously had asked about filing a CUE for a cervical condition my husband claimed. I have found I cannot submit a CUE for the condition - but am wondering if it can be raised as an "inferred claim" for accrued benefits.

My understanding is that inferred claims for increased ratings for conditions that have already been service connected that have not been recognized by the VA - and addressed - are still "pending claims"

Correct me if I am wrong on that.

My husband claimed his cervical condition at retirement. Though his SMR's showed he had a cervical injury in service - he was denied SC as both the RO and BVA stated he did not show a "current disability."

His first C&P in 1999 said his x-rays didn't show ANY disability.

He continued to complain of chronic neck pain - and his C&P in 2002 found only a slight problem at the C4-C5 level - which they still didn't think was enough of a disability to be a "current disability" to grant him SC. I have NO idea why they didn't grant the service connection and rate it at 0 percent at that point, instead of denying SC based on the "No current disability."

In 2003 - the C&P exam for headaches --for his "Desert Storm" C&P denied him SC for the headaches because they C&P examiner indicated they were a diagnosed illness (therefore not compensable under Desert Storm as an undiagnosed illness).

THe C&P examiner indicated the headaches were caused by osteoarthritis of the cervical spine - which affected C1 - C7 - but by some miracle happened to appear the greatest at the C4-C5 level with hypertrophic spurs, significant restrictions in flexion and extension, etc. etc.

My question is:

As my husband WAS Service Connected for DEGENERATIVE ARTHRITIS in 1998 - based on the arthritis that had manifested in his lower back from a low back injury in service - wouldn't a VA report that indicated that arthritis affected ANOTHER joint that had a documented injury in the SMRs raise an INFERRED claim for an increased rating for ARTHRITIS - as now affecting two or more joints?

So if the VA failed to recognize the inferred claim for an increased rating for degenerative arthritis (and just denied the SC of an undiagnosed illness) - would this still be a "pending claim" that is before the VA?

Free

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  • HadIt.com Elder

Free,

"As my husband WAS Service Connected for DEGENERATIVE ARTHRITIS in 1998 - based on the arthritis that had manifested in his lower back from a low back injury in service - wouldn't a VA report that indicated that arthritis affected ANOTHER joint that had a documented injury in the SMRs raise an INFERRED claim for an increased rating for ARTHRITIS - as now affecting two or more joints?"

An inferred claim is a condition VA took upon itself to claim for the veteran when the veteran did not do so themselves when filing for disability compensation. The decision to infer a claim by VA is a judgmental call on the decision maker and not normally subject to a CUE.

In your case you said your husband claimed his cervical spine condition at retirement and was denied at the RO level and even the BVA. This was not or is not an inferred claim. Just because there was a report of arthritis affecting the cervical spine at the time a VA exam and the SMR's also showed an injury to that area, doesn't mean that VA should have inferred such a claim. Also there isn't any nexus between the two (either between the lumbar spine and the cervical spine, or the arthritis in the cervical spine and the injury to it noted in the SMR's).

Now as to whether the VA can consider this on a presumptive basis because there might have been evidence within one year of his seperation of arthritis at least 10% disabling I don't know. I say this because the C&P exam of 1999 was a part of your husbands records at the time of his death. However, as far as I know (I have never done a DIC claim before), a determination for DIC benefits must be made on whther if the veteran dies of a service-connected disability or not and the vetetran hadn't been service-connected for at least ten years. If this is the case in your situation, you'd have to prove your husband was service-connected at the time of death for his cervical disability. Like i said before, there isn't any evidence in your husbands C-file that show any nexus. Furthermore, I don't know what you would have gain by trying to prove this now. Your husband passed away due to his lung condition, which that claim was pending at the time of death, not any cervical spine condition. If you were able to prove service-connection with the evidence in his C-file now of a cervical disability, I don't know if the VA could/would pay any retro disabilty to you from a dertermination of service-connection of that condition.

I guess a portion of your question is way over my head, maybe Berta could shed some light on this.

Vike 17

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I wasn't clear about the inferred claim. That would be a claim for accrued benefits - not DIC. But I think they decide them at the same time.

The DIC would be based on the lung cancer.

I probably don't have a good understanding of inferred claims. I didn't realize they were a judgement call at the descretion of the VA. I thought if evidence was submitted that showed the possibility of an increased rating for a SC condition - that if the VA did not notice the inferred claim - that the claim could still be brought up as a "pending claim" - not as on the basis of a CUE.

I do understand that the lumbar condition is not related to the cervical condition. However, I thought that since he was already SC for arthritis in one major joint or group of minor joints, that arthritis susequently appearing in other joints that were injured in service could be the basis of a claim for increased rating for arthritis (since his previous rating for arthritis was based on the arthritis only affecting one joint).

I am not clear why you say my husband's C-file doesn't show any nexus between the cervical injury and the arthrits - as he had continued symptomology - they just didn't find any physical reason for the symptomology until the last C&P exam.

I probably don't have much, if anything, to gain financially by proving the cervical claim now. However, my husband injured his neck in the service. He repeatedly and consitently reported to the VA that his neck hurt. They repeatedly indicated their was nothing physically wrong with his neck. When they finally decided there WAS something wrong with his neck - it was used to deny a claim for an undiagnosed illness, rather than to grant the claim he had been claiming all along for his neck injury.

I know the cervical injury could not be reopened without a CUE, and as the widow I don't have the legal authority to raise a CUE on the issue. However, I thought it might fall under a pending claim for increased rating for arthritis.

The biggest thing I would have to gain would be to finally get a ruling that my husband's neck injury was SC. One of his battles would be won - even if the victory didn't come until after his death.

I guess I just wanted to win as many of my husband's battles as I could. It is probably a "widow thing" to want to keep fighting our husband's battles...regardless of whether we stand to gain financially from doing so.

When your husband is dying of cancer - and when he asks for his morphine - and you ask where he hurts - and he says his neck - you just get really aggravated that the VA kept telling him there was nothing wrong with his neck.

Free

Free,

"As my husband WAS Service Connected for DEGENERATIVE ARTHRITIS in 1998 - based on the arthritis that had manifested in his lower back from a low back injury in service - wouldn't a VA report that indicated that arthritis affected ANOTHER joint that had a documented injury in the SMRs raise an INFERRED claim for an increased rating for ARTHRITIS - as now affecting two or more joints?"

An inferred claim is a condition VA took upon itself to claim for the veteran when the veteran did not do so themselves when filing for disability compensation. The decision to infer a claim by VA is a judgmental call on the decision maker and not normally subject to a CUE.

In your case you said your husband claimed his cervical spine condition at retirement and was denied at the RO level and even the BVA. This was not or is not an inferred claim. Just because there was a report of arthritis affecting the cervical spine at the time a VA exam and the SMR's also showed an injury to that area, doesn't mean that VA should have inferred such a claim. Also there isn't any nexus between the two (either between the lumbar spine and the cervical spine, or the arthritis in the cervical spine and the injury to it noted in the SMR's).

Now as to whether the VA can consider this on a presumptive basis because there might have been evidence within one year of his seperation of arthritis at least 10% disabling I don't know. I say this because the C&P exam of 1999 was a part of your husbands records at the time of his death. However, as far as I know (I have never done a DIC claim before), a determination for DIC benefits must be made on whther if the veteran dies of a service-connected disability or not and the vetetran hadn't been service-connected for at least ten years. If this is the case in your situation, you'd have to prove your husband was service-connected at the time of death for his cervical disability. Like i said before, there isn't any evidence in your husbands C-file that show any nexus. Furthermore, I don't know what you would have gain by trying to prove this now. Your husband passed away due to his lung condition, which that claim was pending at the time of death, not any cervical spine condition. If you were able to prove service-connection with the evidence in his C-file now of a cervical disability, I don't know if the VA could/would pay any retro disabilty to you from a dertermination of service-connection of that condition.

I guess a portion of your question is way over my head, maybe Berta could shed some light on this.

Vike 17

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  • HadIt.com Elder

Free,

If I'm not mistaken, a DIC also acts as a claim for accured benefits, meaning a claim for any benefits that the veteran had pending at the time of death. In your case any monetary retro due to your husband from the not yet decided lung cancer claim. Also the pending claims at death can only be adjudicated based on the evidence in the C-file at the time of death. The widow cannot add any evidence after the death to strengthen the pending claim (help me out here Berta).

"I probably don't have a good understanding of inferred claims. I didn't realize they were a judgement call at the descretion of the VA. I thought if evidence was submitted that showed the possibility of an increased rating for a SC condition - that if the VA did not notice the inferred claim - that the claim could still be brought up as a "pending claim" - not as on the basis of a CUE."

In the case of the cervical spine condition, any evidence that showed an increase in the disability would be moot because that condition wasn't even deemed service-connected. Does that make sense? If the cervical spine was service-connected, then in certain instances evidence of an increase in disability may used to set an earlier effective date other than just the date of the claim.

"I do understand that the lumbar condition is not related to the cervical condition. However, I thought that since he was already SC for arthritis in one major joint or group of minor joints, that arthritis susequently appearing in other joints that were injured in service could be the basis of a claim for increased rating for arthritis (since his previous rating for arthritis was based on the arthritis only affecting one joint)."

Each bodily etiology warrants service-connection on it's own merits through medical evidence either as directly related to an injury or disease while in service or as secondary to an already service-connected disabilities, or on a presumptive basis. In order for the cervical spine to warrant service-connection as directly related to the injury in service, the VA needs medical evidence of the thre basic elements for service-connection. In order to have the cervical spine service-connected as secondary to the lumbar spine, the VA needs medical evidence that the lumbar spine disability has somehow caused the arthritis in the cervical spine. This would probably be done through an IMO.

"I am not clear why you say my husband's C-file doesn't show any nexus between the cervical injury and the arthrits - as he had continued symptomology - they just didn't find any physical reason for the symptomology until the last C&P exam"

If your husband claimed it within one year of his retirement, the VA would need to see a chronic condition listed in his SMR's, not just the injury and maybe a months worth of recovery in order to award service-connection. Also, if your husband had past documented symptoms or complaints of any residuals from that injury, but there wasn't any current symptoms or a clinical diagnosed mendical condition at the time, then VA could not award service-connection.

Remember, the three elements of service-connection is: 1)a documented injury or disease while on active duty (except for any presumptive condition), 2)a current diagnosed disability, and 3)a nexus connecting 1 and 2. The nexus can either be contiuity of treatment from the time of disacharge and/or an IMO from a doctor showing a connection bewteen the two.

"I know the cervical injury could not be reopened without a CUE, and as the widow I don't have the legal authority to raise a CUE on the issue. However, I thought it might fall under a pending claim for increased rating for arthritis"

I also don't know the answer of whether or not you can claim a CUE for an earlier claim of your husbands. Having said that, you probabaly do not have a CUE anyways. I say this because you said the claim had even been to the BVA and denied. With all of the people that have looked at that claim, the chances of someone missing a CUE is pretty remote. I'm not saying you definately do not have a CUE, just the odds of that happeneing aren't in your favor. What was the docket number and year of that decision. If you post it, maybe I can read it and see what it what.

I sure hope Berta comes by and adds to this , or correct any thing that I have said that isn't correct. Like i said before, DIC claims aren't my strong point as I have never doen one. I just know the basics of those types of claims, not the nitty gritty.

Vike 17

Edited by Vike17
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Vike- you are absolutely correct in that the accrued claim is covered by the DIC claim.

I only need to correct one thing here:

"The widow cannot add any evidence after the death to strengthen the pending claim (help me out here Berta)."

Rod had a claim for higher PTSD rating and also had a Section 1151 claim pending when he died. They were both in rating board the morning of his death when he called 800#.

I continued to advance these claims with considerable evidence.

The Section 1151 claim I re-opened had to be proven and his death was what he predicted in his 1151 claim so I had to prove the VA did cause his death and due to exactly the conditions he stated were malpracticed on.

I also had to continue to supply significant evidence as to his PTSD claim as increase for higher rating.That claim also was awarded posthumously-

accrued at 100% less the 30% he had received in his lifetime.

As I indicated to Free spirit -I not only put this info on the formal 21-534 as to re-opening both of the veteran's claims pending-but I additionally re-opened by formal letter to the VARO-both the veteran's Section 1151 claim and his claim for higher PTSD rating.

I felt it had to be clear to the VA what the 21-534 application involved-my rep at the time said I had no claims and than when I rattled off the regs ,he said OK you can file them but they will not succeed.

He saw my award letters for the first time in the DAV lawyer's office.

Free spirit needs a good NSO or rep - reps get limited DIC claims so it pays to get up on the DIC regs herself-

many reps out there are superb in handling them however-

they are basically the same criteria as any veteran's claim.

DIC and any accrued award takes medical evidence.

I think a widow or widower's focus should be on whatever the established claim was when the veteran died.

They need to focus on the VCAA letter regarding those pending claims if the vet had received one,and on any SOCs the veteran received.

The logic is this in my opinion-

If the accrued claim is resolved and is the same condition that causes or contributes to death-then, if a service connectable disability , the DIC claim should succeed.

What the veterans filed for in his lifetime is what you have to prove as the accrued claim.

It is also the basis of your DIC claim.

It is very probable that the VA will find the condition as 100% P & T-as it did appear to contribute substantially and cause to his death.

This generates the highest accrued amount anyhow and inferred issues will only add more time to the claim and take the claim off into tangents.

The disability he claimed prior to death has to be proven as service connected and that it contributed to his death.

It is the Death certificate and/or autopsy that states the cause of death and this has to be tied in by medical evidence with his claim that was pending at time of death.-as I understood it was the same condition in his claim, that he died from.

If not that is a different matter- but I thought it was the same disability claimed-that caused his death.

The VA pays accrued benefits these days without any time frame limit at all.

Bonny V. Principi-Dec 2003.

Prior to Bonny accrued benefits were limited to 2 years only.

But the claim had to be filed and then accrue for that time or longer or medical evidence showed the EED was longer than the filing date.

Example:

Rod got 100% posthumous SC PTSD for 3 years prior to death. He filed his PTSD claim 2 years prior to death.

VA sent 2 years of 100% less 30% to me.He died before Bonny.

I have challenged Bonny V Principi with the VA.At a higher level than the RO-

I even asked them by way of comment to another proposed reg to make Bonny fair to Section 1151ers.My argument to VA is simple:

If the VA causes a veterans death and they cannot hang on until Dec 2003 DUE to VA medical care-the surviving spouse should be eligible for ALL accrued benefits.

My award letter clearly states that the VA "hastened" Rod's death with their 'medical' care.

Mrs. Bonny, like Mrs Nehmer did some great things in challenging the system-

I guess we widows are very tenatious when we lose our spouses.

PS- my formal re-open of Rod's PTSD claim over a decade ago is now the crucial point of my pending CUE claim.

I think any surviving spouse should never depend on the 21-534-whether they or the vet rep files it out- send the VARO a letter referring them to the application and state clearly what claim the vet had oending that you are re-opening.

VA denied my SMC CUE accrued stating he never filed a PTSD claim for higher award in his lifetime-

I replied the hell he didnt-and sent ample proof of that-it is right in the c file-but

they did have a good point and I know they took the time to read it all-

If he had not filed this claim in his lifetime I would have had no basis for CUE.

PTSD 100% plus numerous malpracticed 1151 disabilties (proven and documented) at well over 100% equals SMC.

This is established VA case law 101.

Edited by Berta
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  • HadIt.com Elder

Berta,

After looking at the regulations and so forth, it looks like a widow cannot add any new evidence to any accured claims, but can certainly have that same evidence used towards the DIC claim even though the two could be for the same disability. Also here is a response from a DROn another website and his answer to a similar question;

"It has been a long time since I have been online but I need a little advice. My husband had a claim filed for prostrate cancer in 2003 that I helped him with. He was denied and I appealed their decision. While the appeal was in process he developed kidney cancer and then lung cancer (separate cancers). He had lung cancer in both lungs that the doctor said appeared at the same time, one did not spread to the other. He stayed in the hospital 62 days and they sent him to hospice where he died early the next morning. Well the VA rep told me when he died that his claim for prostrate cancer died with him. He did however get me another claim for the lung cancer which was approved. The prostrate cancer happened from 1988 until 1994 and he received treatment at Bragg. He also lost a kidney and had recurring bladder cancers. Since they did not operate on his prostrate and only had treatment at the clinics they said they could not find records of a prostrate cancer. What rights if any do I have now against the original claim? Or should I just leave well enough alone..."

Response;

The information you received is technically correct. When a veteran dies while a claim is pending, the claim essentially dies with them.

However, having said that, a surviving spouse can file a claim for accrued benefits. A claim for DIC is also a claim for accrued. What this means is that while no additional evidence can be added to any claim, or appeal, that was pending at the time of the veteran's death; that claim will be adjudicated based on the evidence of record at the time of the veteran's death and any benefits that are determined to be due and unpaid at the time of the veteran's death can be paid to the surviving spouse. But again, this decision must be based on that evidence that was of record at the time of death...

Follow-up question from widow;

Thank you so much...I am pretty sure you are the one that answered my questions when I was appealing his denied claims. They stated in the denials that they found no proof of the cancer in him medical records even though I contacted his Army surgeon and he supplied a letter stating that he did have cancer in 1988...

Response;

But remember, for accrued benefits there can be no new evidence added after the veteran's death. The decision on the claims that were pending must be based solely on what was already in the file as of the date of death.

At the same time, even though the new evidence cannot be used for the accrued claim, it can be used for the DIC claim. That's why it is possible for service connection to be denied for a specific disability on the accrued part of the decision, but then service connection granted for the cause of death based on that very same disability. These are two separate decisions"

I assume this is what happened in your situation?

Vike 17

Edited by Vike17
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Basically- yes-

I did an article for Stars and Stripes some time ago-on the fact that the "claims dies with the vet" but the survivor can resurrect it- a point some SOs fail to tell the widow-

Vike- I hope I didnt give wrong impression-

You are correct - it was the established medical evidence of record that was in Rod's c file at time of death that got me these awards.

When I stated I supplied considerable evidence-

I supplied those medical records and supported how the clinical med recs proven my claims-

Thanks for asking me this-

I sent considerable evidence-for 3 more years-

it was all based on the proper medical assessment of the veteran's medical evidence at time of death-

In other words -I advanced the issues -with medical information and VA case law but still the Medical evidence in Rod's clinical records were what made the claims succeed.

The med recs certainly did not state that Rod had been malpracticed on.

I had to prove with the evidence at time of death that they did.

The PTSD claim had generated considerable VA psychiatric input and test results as well as a SSA award that VA failed to address.

Since these records were not part of the med rec although all in the local shrinks office-I had to supply them myself and then cite Washington V Derwinski- etc-etc.

You are right ------that the evidence in the med recs and c file at time of death is what these claims are based on.

The claimant has to successfully use that evidence and then support the claim with it.

I regret it seems hard for me to explain this-

I never even considered getting IMOs for these claims.I gave them my clinical IMO as a non-doctor. I studied medicine to do that and at some point the cardiologist in VACO agreed. I was wrong about one medical issue-but they agree with the rest-

Because the med evidence was overwhelming to support my 1151 claim.I dont advise a claimant to do that.They should get IMOs for 1151 claims.

An IMO regarding a veteran's or widows claim is 'evidence' that is not in the c file at time of death but an IMO regarding a SC death considers only the evidence up to death that VA has.

It is the expansion of the documented facts is what I think I mean to say that a widow must do-

and I considered as evidence any VA case law I used for the PTSD accrued award.

Edited by Berta
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