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

[free_spirit_etc]

Nope. I wasn't eligible for that. You have to be married over a year - and we were actually only married for 10 months and 3 days. Plus, I think since he didn't take it on his spouse when he retired (as they were ALMOST divorced) - he wasn't allowed to add any spouse's he picked up along the way.

I am not eligible for a VA pension either because of being married for less than a year. But DIC can kick in if you married the Vet within 15 years of their period of service in which the SC occured.

I am not sure why they don't grant people the status of "real" spouse unless they have been married a year for many benefits. I think you are a real spouse the moment you get married.

I think they don't want people getting married just so they can draw benefits. And I have already fought some prejudice witin the system (mostly SSA)because I am applying for benefits to which I am legally entitled - but I married a man who was already terminally ill.

So I guess people assume you just marry the person and then sit around and wait for them to die so you can get rich.

Odd though. I was his EX girlfriend who became a good friend because the woman he left ME for was driving him nuts. ("It must be love - I feel so crazy!)

So I became his friend because I was about the only person he knew that he could talk to about her - because I COMPLETELY understood how he felt (because she treated HIM like he had treated ME).

Then - when they only thought he had a few weeks to a few months to live in 2004 - Ms "Not Very Right" (fiancee) bailed - saw him one time in the hospital - and then sent him a dear John email that she suddenly realized she didn't really love him. So I stepped up to the plate - and told him I would take care of him. The plan was for me to take care of him the short time until he died. But then he ended up pulling through - and was actually in remission for some time.

So since he lived -- it messed up all the plans -- and we ended up becoming the best of friends - and OMG we did so many things and had so much fun. And then last year he asked me to get married.

People even questioned why I would marry a man with a terminal illness.

Well - because I love him and because he wants to marry me and because I am going to be here through the illness anyway - I suppose...

I am so glad I stuck it out through the rough times - because though we didn't have all the time I would have liked to have had - we had more time than was expected - and most all that time was GOOD time. He was only pretty sick right at the very end.

But now I face the illusion that some people have that I was less than a "real wife" based on the time since we said "I do." Or that I just breezed into his life while he was taking his last breath so I could "cash in."

I guess, like prison, they think marriage is a place where you have to serve a certain amount of time before the time really counts.

Free

NO SBP?

[Berta]

A good IMO should support the accrued claim as well as the DIC claim.

There is a format here called -under search- Getting an Independent Medical Opinion.

There is a specific criteria for them.

I always recommend Dr. Craig Bash-he talks VA legalise-and can read SOCs in great detail.

Also I recommend Craig because he knows the entire VA criteria-as well as 38 CFR etc-

and will go through the records for anything that helps his opinion have solid medical rationale-he gets it all by phone too---

right away ---unlike my vet reps who need it spelled out clearly in email too---

you can email Dr. Bash at his site, run by what evidence you have and what you are claiming as SC and he might give an estimated fee within a few days in email-

if this is within his area of expertise and it might not be-

he is a Neuro-radiologist-but he could possibly give you a good referral.

Anyone whose claim depends on MRI or exam results should consider a NeuroRadiologist to interpret their medical records if they are getting an IMO.

At his site and under a search at the BVA his name pops up in many claims. He cant succeed in them all and sometimes the evidence a claim needs is not there at all-

in any event-if he seems appropriate for your issues

if you want to consider him he is at:

http://www.veteransmedadvisor.com/

very user friendly- I am crazy about him- he has helped many vets I know and helped me twice.

Edited June 19, 2007 by Berta

[free_spirit_etc]

Berta,

So I am not quite sure how a medical opinion submitted after someone dies supports the accrued benefits claim...unless it is stipulating that SC should be granted based on evidence that was in the record at the time of death.

I wanted to be pretty sure on this because I don't want to mess up the accrued benefit claim just to get the DIC claim decided sooner.

I have been looking up info on Dr. Bash. But it didn't look like he did the simple opinions. They are all pretty complex. He does seem to know the VA law well - as I have seen him instruct the BVA on what the LAW was - as well as give his medical opinion.

I have seen him get a lot of claims granted - and quite a few of them remanded.

I was wondering though about his credibility with the VA.

I know you have had trouble getting your RO to accept his opinions. And it looks like some of the BVA are starting to pick his opinions apart a bit more.

I was looking up his 2006 BVA cases - to see how his opinions have been doing recently. I think it all depends on the judge. Some are still listing his full name and credentials, etc. and acting as though his opinions came down from God.

But some judges are actually starting to just call him C.B. (which, by the way, I think is totally disrespectful to him)...and not just say the probative evidence is against the claim -- but stating things like - C.B argued these inacurate facts again in his _____"

Some of them seem to be downright slamming his opinions, rather than just not afford them probative value.

I hestitated discussing this - as I know that many people are Doctor Bash fans. And I am not so much concerned about his opinion - as the VA's take on his opinion. I don't want my claim to be jeopardized because the VA wants to get in a Power Struggle with Dr. Bash - and use my claim to try to take a hit at him.

This is not to say anything negative about him - or his opinions - so much as to say I want to be very careful about possibly paying the price if the VA wants to take some potshots at him.

I agree that Dr Bash has been a Godsend to Vets - kind of like the Robin Hood of the VA -- and has not afraid to take them on - and has been very skilled at doing so - which is why some of them are beginning to have a problem with him. Odd that they don't seem to notice the glaring inaccuracies in the VA examiner's reports -- but they can spot tiny ones in IMOs.

There are MANY Vets who deserved SC that would never have gotten it had it not been for Dr. Bash stepping up for them.

And I think for them to just to refer to him as C.B. in their opinions should be addressed. To me it shows prejudice against him - which in turn prejudices the claim. I think it is totally unprofessional on the part of the BVA judges that do that. To me - it tells me they aren't taking his opinion as a doctor seriously. And to me that prejudices the claim.

It is okay for them to deny claims they know should be granted just because the Vet doesn't have the IMO to push them to grant it. But when a doctor steps up to help the Vets - and help level the playing field -- Maybe the VA doesn't want the playing field to be level. They want control of the ball.

So I have had some real mixed feelings about that.

That doesn't mean I won't seek an opinion from him. But it does mean I want to check things out thoroughly before I do.

Free

A good IMO should support the accrued claim as well as the DIC claim.

There is a format here called -under search- Getting an Independent Medical Opinion.

There is a specific criteria for them.

I always recommend Dr. Craig Bash-he talks VA legalise-and can read SOCs in great detail.

Also I recommend Craig because he knows the entire VA criteria-as well as 38 CFR etc-

and will go through the records for anything that helps his opinion have solid medical rationale-he gets it all by phone too---

right away ---unlike my vet reps who need it spelled out clearly in email too---

you can email Dr. Bash at his site, run by what evidence you have and what you are claiming as SC and he might give an estimated fee within a few days in email-

if this is within his area of expertise and it might not be-

he is a Neuro-radiologist-but he could possibly give you a good referral.

Anyone whose claim depends on MRI or exam results should consider a NeuroRadiologist to interpret their medical records if they are getting an IMO.

At his site and under a search at the BVA his name pops up in many claims. He cant succeed in them all and sometimes the evidence a claim needs is not there at all-

in any event-if he seems appropriate for your issues

if you want to consider him he is at:

http://www.veteransmedadvisor.com/

very user friendly- I am crazy about him- he has helped many vets I know and helped me twice.

[Berta]

"I was wondering though about his credibility with the VA."

I have copy of a wonderful letter from Deputy VA Secretary Mansfield regarding Dr. Bash-his credibility has never been in question-with the VA. He has had a long term relationship with them.

I sent a copy of it to my POA as THEY were rejecting my IMOs not the VA-

THEY were----they even stated this in letters and emails from their main office-that I sent to the Governor with a formal complaint they have looked into.

They had never heard of Dr. Bash before,dont know how to handle IMos as they never see them much and NYSDVA rejected my IMOS-(documented) the VA has never done that.

Not all of his opinions can help a vet- why? the medical evidence simply isn't there-

I have had emails from vets happy with his IMOs and emails and phone calls from a few who were not happy-

I was familiar with their claims- the medical evidence simply was not there for him to opine strongly on it.

"I know you have had trouble getting your RO to accept his opinions"

NO -not the case at all- I have had trouble finding out who is making sure my IMos never get into the c file-or remain in it before anyone at the RO can consider them.

The VA has Never rejected any of my IMOs. They said Dec 2006 that the IMOs have NEVER been received-even back with the remand-

The VA has to send a statement of full medical rationale to a claimant as to why an IMO from a real doctor that conforms to the criteria for an IMO -is rejected.

My POA assured me they were going to be considered in Sept 2005 at a DRO conference.

It never happened.He has office right down the hall from the RO offices.He is "in and out of the RO all the time" per others who work there at the VA.

I have no documentation whatsoever that show the VA has ever read my IMOs and they have never opined against them.That is when they disappeared.(Sept 2005)

Since this problem seemed to have been started by my POA -I dropped a dime on them-

The VA cannot acknowledge what they never see.

I dont want anyone to think the VA since 2004 has rejected my IMOs- they haven't ever even mentioned them and in Dec 2006 the VARO told me they were gone- nothing was in my c file-

After I put a LOT of heat on my POA it seems they have miraculously appeared and will be considered or are being considered now.

My former vet rep lied about my POA status ,said I never had filed any claims,and also lied about my IMOs to his boss-(all documented)by telling him that I had NOT gotten any IMOs.

In order to continue the lie-

he made sure somehow the IMOs and other significant never stayed in the c file long enough for the VA to even read them.

(documented)

There has been a recent change at this POA office.Dont know what however-

If my IMOs are not listed as evidence after the long rating review the RO is doing right now-

I will sue the State of New York as I have been damaged by incompetence.

Or sue the vet rep- my lawyer is very interested in this matter.

Because I have considerable evidence.

Same as what the VA needs for any claim.

"So I am not quite sure how a medical opinion submitted after someone dies supports the accrued benefits claim...unless it is stipulating that SC should be granted based on evidence that was in the record at the time of death."

My husbands medical evidence in the VA clinical record showed PTSD at the 100% rate since 1991.

He filed the claim(he was at 30%) in 1993. After he died I found that clinical psychiatric evidence was not in the c file nor the actual med rec file-also I found that the VA has failed to consider his SSA records.

I went to see his VA shrink who immediately wrote a short letter to VA stating that the veteran was totally and permanently disabled by PTSD and that his numerous tests results showed it to be at a catastrophic level.

I supplied copies of all of these tests.

I also made sure that VA had his SSA records-that was a battle to go thru-however the SSA award was an independent medical opinion-based solely on the clinical record-at time of death- that he was 100%SC PTSD.

After VA assessed all of the evidence I was awarded the accrued amount.

I have handled many DIC and accrued claims -some here and many from other sources.

Some needed IMOs and some were prime facie claims- still even those claims needed a lot of evidence called to the VAROs attention.

I am only suggesting an IMO and it is up to you if you choose to get one or not.

I dont know if the claim is within Dr. Bash's expertise or not.Only he can determine that and

there are plenty of other IMO doctors out there.

I think I have exhausted all I can possibly offer in this matter.

Others here will continue to help you.

Edited June 20, 2007 by Berta

[free_spirit_etc]

Berta,

Thank you for clarifying these things. I get the feeling that handling a claim with the VA is like walking through a mine field - and you have to be careful with each step you take.

Because I see so many times that we should have done this instead and should have done that instead - I would rather fully check out many of the steps BEFORE I take them - rather than taking steps that I later have to backtrack and try to undo damage.

I always thought - when THEY don't develop a claim and get an opinion - and the Vet dies -- and they restrict the claim to the evidence in the file at the time of the death - that is fundamentally unfair to the survivor -

But - if you can continue to get opinions that stipulate that the medical evidence in the file at the time of death DO show Service Connection - and that opinion is not considered new evidence -- but an intepretation of the evidence - that would be more fair.

In fact, I think I should point out to the VA that the IMO is just supporting the evidence already in the file - that the doctor wouldn't be saying anything new - so much as expanding - and explaining what the other doctors had said.

So I am glad you pointed that out - as I wanted to be sure before I proceeded.

I am also glad you clarified some things about Dr. Bash... and the VA's take on him. I was a bit hesitant about him when I saw the appeals where the BVA judge called him C.B. ( and I still think that case should be vacated for prejudice).

Actually growth rates of cancer is very much in the field of radiology - because they are the ones that keep working on ways to improve how it is detected.

And it does look like if there is ANY evidence AT ALL in the file - Dr. Bash seems to find it and research it...and find a way to make whatever connection he can.

And if the medical evidence really supports it - the other doctors can't refute his opinions successfully.

And a couple of the cases that were denied - the biggest fault they seemed to find with Dr Bash's opinion is that he based something on the Vet's self report. How odd in the medical world that a doctor would actually believe that the patient is capable of knowing whether they are hurting or not.....

Dr. Bash was one of the doctors who opined in the 2006 case I just posted the other day - where the widow was granted DIC for the Vet's Skin cancer - based on the sun exposure the Vet experienced in the year he was in Vietnam.

I was pretty amazed at that one - that the VA didn't try harder to say that he could have been exposed to the sun both before and after his service. It helped that he had an inside job and was not a "sun worshiper." But yeah -- the way they really warn people about the sun now -- think of all the Vets that get sent to these places where their skin is cooked for over a year. It would be hard to say that being cooked alive for a year did NOT contribute to your skin cancer.

I take it from your comment at the end of your post:

"I think I have exhausted all I can possibly offer in this matter.Others here will continue to help you."

that you are bowing out.

Thank you for all the help you have given me.

Free