ptsd Deceased Veteran Widows Pay

[banchie]

Hi Brothers & Sisters. My life has improved so much thanks to all of you! A slight tear there, sorry.

;)

One of my brother veterans died with his power of attorney assigned to his wife. He was wounded in Nam in the leg and received disability benefits for leg wounds & PTSD. He died of cancer before I could get him A/O connected (was filing the paperwork on presumption). His rate for leg wounds never increased over his lifetime.

The VA has since cut his wife off from any VA benefits. Is this correct? Here is a women who endured a PTSD veteran, and cared for him dying of cancer in her home. Is she entitled to anything? Pension or VA compensation coupled to power of attorney?

Thanks for your help in advance. Banchie VN 67-68'

[Berta]

thank you Berta for taking time to respond here in detail.

I do actually have a DIC claim (first one I filed) and an 1151 claim (they tell me). In my ignorance, blessed or otherwise, I had no clue that I had actually opened two claims but I did.

The one that I am responding to now and awaiting this decision for, is actually the 1151 claim and if you could read Dr. Bash's IMO, it is powerful, really powerful in support of all the medical facts both from the med recs and from his research with opine.

I know for certain that had they given him a cardiac evaluation (when Baylor College of Medicine told them to--May of 1990) AND had they stopped dosing him with incredible amounts of Accutane while ignoring the criticaly high Triglyceride counts... he would not have died. I believe the cause of death was not totally due to arteriosclerotic heart disease but was rather cardiac arrest. I say this because the events of the night he died (at home, with me present) clearly indicate that it was a massive heart attack. Dr. Bash's letter opines on that as well as the cause of it as related to the care/lack of care and improper medicating etc. by VAMC.

I now await THIS decision. If I lose this round.. we will go again. Meanwhile, I will research as you suggested and actually, I did plug in Houston and Widow and whatever else and actually within about 30 minutes I DID find my claim... dated correctly and facts identical. No doubt. I printed it out and added it to my mountain of paperwork.

I did not know to plug in the -denied and find the cases similar that were won so thanks for that information/suggestion. I shall do more research in that way.

This is a powerful case of wrongdoing by the VAMC and VARO... they killed him, outright.

Judy- make sure they fully address the IMO from Dr. BAsh-

His IMos for me are similiar to yours in that they proved VA failed to diagnose and treat Rods DMII from AO.

The RO here in Buffalo ignored all 3 of my IMOs since 2004 and they were only read finally last month-as far as I know.A BVA remand ordered that the VA read these opinions.

This happened to me many times over the 3 years my Sec 1151 claim took.

A Peer review supportd my claim within months of filing it.

That and all other critical evidence disappeared-even when the file was sent to VACO for a medical review in DC.

If I had not been proactive in dealing with this claim when it was in DC I would have lost DIC .

Funny how that missing stuff-ALL critical to my claim- showed up years later again in my C file.

The missing Peer medical review that VA even denied ever had happened-was at the bottom of my C file and I used it for my present AO claim because it did contain some powerful stuff.

I feel your 1151 claim is quite strong. I am glad Dr. Bash saw it that way too.

I only hope the VA does not ignore the IMO you have.

Even though VA acknowledged receipt of my IMOs via Iris -they still ignored them during 2 DRO reviews.

I expect a decision any time now and am confident of my evidence -but-like you- I am prepared for another battle and have stuff ready for another IMO if needed.

I think they depend on widows giving up-

but Judy- we can Never give up! You have very good evidence too!

[Berta]

thank you Berta for taking time to respond here in detail.

I do actually have a DIC claim (first one I filed) and an 1151 claim (they tell me). In my ignorance, blessed or otherwise, I had no clue that I had actually opened two claims but I did.

The one that I am responding to now and awaiting this decision for, is actually the 1151 claim and if you could read Dr. Bash's IMO, it is powerful, really powerful in support of all the medical facts both from the med recs and from his research with opine.

I know for certain that had they given him a cardiac evaluation (when Baylor College of Medicine told them to--May of 1990) AND had they stopped dosing him with incredible amounts of Accutane while ignoring the criticaly high Triglyceride counts... he would not have died. I believe the cause of death was not totally due to arteriosclerotic heart disease but was rather cardiac arrest. I say this because the events of the night he died (at home, with me present) clearly indicate that it was a massive heart attack. Dr. Bash's letter opines on that as well as the cause of it as related to the care/lack of care and improper medicating etc. by VAMC.

I now await THIS decision. If I lose this round.. we will go again. Meanwhile, I will research as you suggested and actually, I did plug in Houston and Widow and whatever else and actually within about 30 minutes I DID find my claim... dated correctly and facts identical. No doubt. I printed it out and added it to my mountain of paperwork.

I did not know to plug in the -denied and find the cases similar that were won so thanks for that information/suggestion. I shall do more research in that way.

This is a powerful case of wrongdoing by the VAMC and VARO... they killed him, outright.

Judy- make sure they fully address the IMO from Dr. BAsh-

His IMos for me are similiar to yours in that they proved VA failed to diagnose and treat Rods DMII from AO.

The RO here in Buffalo ignored all 3 of my IMOs since 2004 and they were only read finally last month-as far as I know.A BVA remand ordered that the VA read these opinions.

This happened to me many times over the 3 years my Sec 1151 claim took.

A Peer review supportd my claim within months of filing it.

That and all other critical evidence disappeared-even when the file was sent to VACO for a medical review in DC.

If I had not been proactive in dealing with this claim when it was in DC I would have lost DIC .

Funny how that missing stuff-ALL critical to my claim- showed up years later again in my C file.

The missing Peer medical review that VA even denied ever had happened-was at the bottom of my C file and I used it for my present AO claim because it did contain some powerful stuff.

I feel your 1151 claim is quite strong. I am glad Dr. Bash saw it that way too.

I only hope the VA does not ignore the IMO you have.

Even though VA acknowledged receipt of my IMOs via Iris -they still ignored them during 2 DRO reviews.

I expect a decision any time now and am confident of my evidence -but-like you- I am prepared for another battle and have stuff ready for another IMO if needed.

I think they depend on widows giving up-

but Judy- we can Never give up! When the VA casues a death they have to compensate for it.You have very good evidence too!

[Commander Bob]

You are amazing Berta.

[deltaj]

You two have me digging deep into the paperwork tonight...thank you. Thank God I never throw away a single thing. I have every document that ever went from me to VA or VA to me. Here is the April 1991 STATEMENT of the CASE wording:

"PERTINENT LAWS, REGULATIONS, AND RATING SCHEDULE PROVISIONS:"

" To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service (and not due to the veteran's own willful misconduct) either caused or contributed substantially or materially to the cause of death. (38 CFR 3.301)"

"The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or the contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. (38 CFR 3.312)"

" Contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death; but rather it must be shown that there was a causal connection. (38 CFR 3.312)"

"There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of co-existing conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. (38 CFR 3.312)"

then it continues and says:

"Service connection for cause of death is not established."

"REASONS FOR DECISION:"

"Arteriosclerotic heart disease, the cause of the veteran's death is not shown to have had its onset in service nor was it diagnosed within the presumptive period. There is no relationship between nodular sclerosising Hodgkin's disease the condition for which the veteran was service connected and the arteriosclerotic heart disease which caused his death."

I believe this clearly quotes the 38 CFR's in effect at the time of the original SOC.

In reviewing my files, I have determined that I filed the original DIC claim and they acknowledge receipt of it August 30, 1990. The first written communication I have from them is dated NOV 27, 1990 and is a "letter" format and does not state that it is an SOC however the letter does outline the options and remedies available to the claimant. Perhaps this is the way they did it back then?

I appealed this decision and in April 1992 the BVA REMANDED it to VARO who then obtained (I only saw this when I obtained the C file within the past 6 months) an "opinion" from a VAMC doctor which consists of two paragraphs, two sentences in each and states by the doctor "I have reviewed the files on Mr. Veteran and find no connection between the service connected disability and the cause of death."

That was the "opinion", written on a piece of paper with the heading of "MEMORANDUM"... that is all there was to it and based on that....VARO denied the claim again.

Does any of this have any evidentiary value at this point?

Let it be said here that Dr. Bash's IMO (the new and material evidence THIS TIME) is extremely specific with regard to the nexus, linking the treatment Jim received to the arteriosclerotic heart disease of the death certificate. He even found way back in the med rec's where high blood pressure was undiagnosed (for years) and of course the Accutane that he was prescribed during the 8 months prior to death and which EVERY MONTH (per the med recs) continued to drive up the Cholesterol and Triglycerides (7 times normal at the VAMC visit 8 days prior to his death)...but the med recs say "continue the Accutance; will discuss the possibility of reducing the dosage with Dr. so and so prior to patients next visit"....

Now to the reduction of disability rating discussion:

He was rated by VA at 100% July 25, 1969. Then in March 1970 I (spouse) applied for Educational benefits and on AUGUST 14, 1970 comes the unexpected letter stating:

"The evidence establishes that your service-connected condition has improved. The rating for your disability will be reduced from 100% to 30%" .... "We must deny your wife's claim for Educational benefits as your disabilities are not permanent and total in nature"...

He was discharged from USAF on MAY 29, 1969 with Nodular Sclerosing Hodgkin's disease and the rating was "100% Permanent" on the discharge. The original physicians report stated "prognosis for this individual is very poor" and "the life expectancy is less than 10 years".

But the VA rated him 100% in July of 1969 and BECAUSE I applied for Ed. benefits, they reduced him to 30% only 13 months later? A cancer patient? This is what blows my mind completely.

He did not appeal this to VA, he didn't know that he could and he didn't. So until he was hospitalized with a major recurrence (there were minor ones prior to this) in 1982 he elected USAF pay (income was greater than the 30%). During this 1982 major recurrence, he was in VAMC for more than a month and the adjuctant convinced him to reapply to VA (for more money-we had two small children) and he did.... now VA says in JUNE 1982 that he is again rated at 100%... and so it stayed until his death on August 8, 1990. So you can see that if the 8 year rule had been in effect (instead of the old 10 year rule) there would have been no problem with the DIC claim to begin with. right?

I apologize for the length of this post but maybe it will help someone else; at least the old 38 CFR's are quoted in part for anyone who might need to know them from that era.

judy

Judy, You stated in another post that you have copies of his C file. Today the regulations concerning unlawful reductions are found at 38 CFR 3.343 and 38 CFR 3.344 (I hope I am remembering the regulation numbers correctly.) I am not sure if this regulations were in effect in 1969 when your husband was reduced. You can find that out by having your law library mail you a copy of those regulations as they were in effect in 1969. I'm suggesting you review the 1969 decision to see if the rating was reduced unlawfully under 38 CFR 3.343 without clear evidence of employability and/or 38 CFR 3.344. I seem to remember one of these two regulations concern reduction of a rating in effect for 5 years or more so that part of that particular regulation wouldn't be pertinent. If you think the rating was unlawfully reduced under the regulations then in effect get some help quickly and make this argument on appeal.

[deltaj]

Judy, You stated in another post that you have copies of his C file. Today the regulations concerning unlawful reductions are found at 38 CFR 3.343 and 38 CFR 3.344 (I hope I am remembering the regulation numbers correctly.) I am not sure if this regulations were in effect in 1969 when your husband was reduced. You can find that out by having your law library mail you a copy of those regulations as they were in effect in 1969. I'm suggesting you review the 1969 decision to see if the rating was reduced unlawfully under 38 CFR 3.343 without clear evidence of employability and/or 38 CFR 3.344. I seem to remember one of these two regulations concern reduction of a rating in effect for 5 years or more so that part of that particular regulation wouldn't be pertinent. If you think the rating was unlawfully reduced under the regulations then in effect get some help quickly and make this argument on appeal.

Judy, I suggest you take those records and go see a National Service Officer from a service organization like the Disabled American Veterans. Somewhere I remember reading a V.A. regulation that V.A. has to consider all the evidence of record before making a decision. In other words V.A. was supposed to consider what the original doctor said about your husband's life expectancy of less than 10 years before reducing his 100% rating. In other words there probably is a claim for clear and unmistakable error here but the claim has to be carefully worded by a knowledgable service officer based on all of the pertinent V.A. laws and regulations in effect at the proper time interval.

[deltaj]

Judy, I suggest you take those records and go see a National Service Officer from a service organization like the Disabled American Veterans. Somewhere I remember reading a V.A. regulation that V.A. has to consider all the evidence of record before making a decision. In other words V.A. was supposed to consider what the original doctor said about your husband's life expectancy of less than 10 years before reducing his 100% rating. In other words there probably is a claim for clear and unmistakable error here but the claim has to be carefully worded by a knowledgable service officer based on all of the pertinent V.A. laws and regulations in effect at the proper time interval.

Judy, After reviewing 38 CFR 3.343 and 38 CFR 3.344 I am convinced that it is imperative that you take your records and go see a national service officer from the Disabled American Veterans about your claim for DIC and the fact that clear and unmistakable error was made by V.A. in the decision to reduce your husband's rating. I base this opinion on the fact that the original doctor who examined your husband stated in writing that your husband had a life expectancy of less than 10 years. 38 CFR 3.343 (a) now states, "Total disability ratings, when warranted by the severity of the condition and not granted purely because of hospital, surgical, or home treatment, or individual unempoyability will not be reduced, in the absence of clear error, without examination showing material improvement in physical or mental condition. Examination reports showing showing material improvement must be evaluated in conjunction with all the facts of record, and consideration must be given particularly to whether the veteran attained imporvement under the ordinary conditions of life, i.e., while working or actively seeking work of whether the symptoms have been brought under control by prolonged rest, or generally, by following a regimen which precludes work, and, if the latter, reduction from total disability ratings will be considered pending reexamination after a period of employment (3 to 6 months). [Keep in mind that this regulation could have been worded slightly differently at the time of the decision to reduce the rating.] 38 CFR 3.344 (a) now states in pertinent part, " . . . It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examinations and the entire case history . . . Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction . . ." This regulation also was probably worded different at the time of the decision to reduce the 100% rating. Simply get a copy of the version of each regulation as it existed at the time of the decision to reduce the rating and go visit the Disabled American Veterans with copies of the regulations and your husband's records. My point here is that to me it is obvious clear and unmistakable error was made when V.A. reduced this veteran's original 100% rating without considering all the evidence of record as required by 38 CFR 3.344 including the original doctor's opinion that the veteran had a life expectancy of less than 10 years. I suspect also that a clear and unmistakable error was made under 38 CFR 3.343 when V.A. reduced the 100% rating contrary to 38 CFR 3.343 (a) without examination showing material improvement in physical or mental condition.