Inferred Claims

[free_spirit_etc]

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

[betrayed]

Its funny that the Va files INFERRED claims for some things and not for others. They filed a INFERRED claim for IU for me, I found this out while attending a DRO hearing, actually it was a meeting witgh the HMFIC of the Detroit VARO prior to my DRO hearing. They knew I was disabled bad enough to get IU but were to lazy to properly adjudicate my claim. I submitted a statement in support telling them to withdraw the inferred claim. Being a retiree I would not have gained anything financially, any gain would have been lost by the offset in my retirement pay. I just find it simply amazing that they filed a INFERRED claim for me, but wouldnt do anything else properly.

[jecsb4]

It seems like this is a chess game, except that they are playing with our lives physically and mentally and our dependants!

[free_spirit_etc]

It seems like this is a chess game, except that they are playing with our lives physically and mentally and our dependants!

Feels more like ping pong to me.

Free

[free_spirit_etc]

Its funny that the Va files INFERRED claims for some things and not for others. They filed a INFERRED claim for IU for me, I found this out while attending a DRO hearing, actually it was a meeting witgh the HMFIC of the Detroit VARO prior to my DRO hearing. They knew I was disabled bad enough to get IU but were to lazy to properly adjudicate my claim. I submitted a statement in support telling them to withdraw the inferred claim. Being a retiree I would not have gained anything financially, any gain would have been lost by the offset in my retirement pay. I just find it simply amazing that they filed a INFERRED claim for me, but wouldnt do anything else properly.

Yeah. That retirement pay offset has saved them lots of money. I know they do the offset when the person is alive. But I am not quite sure how they do it after death. I asked DFAS and the VA to see how it would work - but neither one seemed to know what I am talking about.

I am talking about how any accrued benefits would be for a period in which my husband had already recieved retirement pay - and therefore any benefits which were not covered under concurrent reciept would be benefits to which he was not "entitled."

Or would he be "entitled" to them - and as I am the surviving spouse and not recieving retirement pay - would I get those without the offset?

What I had assumed was that if they decided he was eligable for benefits for a time he drew retirement pay - that I would have to repay the retirement pay for that time if I wanted the VA benefits. But no one at either the VA or DFAS seems to know what I am talking about -- so maybe that it not so.

They just tell me it will be taken out of "HIS" check. But he no longer gets a check.

The way I had figured it is that I would actually lose money on the deal - if I had to repay retirement pay --

Free

[free_spirit_etc]

Thanks Vike and Berta for all your suggestions and guidance. I still haven't got a IMO. They seem so downright costly. The aggravating thing is there is already evidence in the record...where doctors pretty much did "opine" though they didn't come right out and say "more likely than not" or that they viewed all the SMRs - etc.

Sometimes the BVA seems to accept these statements as probative - as they were the doctors documented them in the medical record - and didn't make them soley for the purpose of recieving government benefits.

I have pointed these out in the records - and backed them with evidence of sound medical principles. Like where the doctor said that the doubling time of adenocarcinoma is about 6 months - we showed that is based in sound medical principles - as the accepted stadard reported is 180 days. This is taught in major universities and is on the SEERS Training Website for the National Cancer Institute --which is purported to be THE standard.

According to their website "The Surveillance, Epidemiology, and End Results (SEER) Program of the National Cancer Institute (NCI) is an authoritative source of information on cancer incidence and survival in the United States... The SEER Program is considered the standard for quality among cancer registries around the world. Quality control has been an integral part of SEER since its inception. Every year, studies are conducted in SEER areas to evaluate the quality and completeness of the data being reported."

Where the doctor reported that the risk of cancer from asbestos exposure and smoking combined was 80% - (where smoking alone would create a 10% risk and asbestos exposure alone would create an 8 % risk) we supported that with evidence such an Army Medical Training Site -- which reported the same thing.

So though the doctors didn't write an actual medical opinion - they did give opinions within the medical records themselves that suport the claims -- We just backed it with evidence that those opinions were actually based on very sound medical principles.

The VSO I talked to on the phone seemed to think we could build a case with the documentation within the records. What also might make the sources a bit stronger is that the doctors were Military Treatment Providers -not the VA - but Base physicians -- So the VA might consider them a bit more trustworthy than someone you hire just to write an opinion.

So their opinions weren't detailed - but they were there - and we supported them with sounde medical principles from very reliable sources which support what the doctors said.

Lung cancer is listed as the primary cause of death on the death certificate. I have not signed an authorization to release his medical information yet - as I was reading in the VBA manual to not sign a release until you view the information. That made sense. Though I don't think I neccesarily have anything to hide - I also don't need to provide them with a means to do what they do so well - which is to take something unrelated totally out of context and go off on a tangent about it.

Most likely - as his death certificate lists lung cancer as the cause of death - I will look over his medical records at the hospital - and just send them some documents that support that. But I shouldn't have to prove the case that he died of lung cancer.

Free

[betrayed]

I am the surviving spouse and not recieving retirement pay

NO SBP?