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'

[Judy]

Berta,

This opens a really big question in my mind.

I DO receive all widow's benefits EXCEPT for the pension. I have Military ID; Base/Post privileges, ChampVA (TriCare) medical and I think that I have education and VA home loan eleigibility as well.

SO, my question/quandry is this: Is it even WORTH me filing for a Section 1151 malpractice if Dr. Bash thinks my SC DIC is almost a sure win? What would it gain me?

I really need to know as each IMO is $2K and thats a lot of money to anybody but it is a critical amount to me right now.

I appreciate your opinion

[tssnave]

Judy,

I would only send a duplicate set of the medical records to Dr. Bash, not box up and send what you have. Even if you send them FedEx they could get lost. His office could burn down.

Consider your husband's medical records the same as you would a bank certificate of deposit (CD) in the amount of the retro you think you are entitled to. You wouldn't want to send a CD worth that amount to anyone knowing you couldn't cash it until they sent it back, which, in a sense, is what you're doing with the medical records. I know there are a lot of them, I know it is a hassle to tote them to a copy shop, and I know it ain't cheap, but my suggestion is to always send a duplicate set. For the record, I had 2 IMOs and had to copy my entire C-file for both my PCP and shrink and went through almost an entire high yield toner cartridge ($75/ea).

Good luck with your claim. Keep us posted on the progress and resolution.

Thanks,

TS

[Judy]

Thanks for the advice TS, that is just what I did. I happen to own a copy machine and even if it took a $75 toner cartridge it was cheaper to do it myself. I would never let the original files out of my hands (after all I have had them for 17 years now) and I was recently told that most of those old ones had been destroyed by the hospital (after 10 years) and also the VAMC can't even find some of the years they are supposed to have archived.

I am now waiting for the C File to be copied and sent to me so that I will know if I have a CUE or not. I am betting that I do based on what I know now but will have to wait and look at the C File. It too had been archived.

Thanks for the good luck wishes, I am at least on the way now.

Judy

[Berta]

Judy- I would go just with the direct Service connected claim-

if it is a choice- and if Dr. Bash felt that was a strong claim- I sure would go that way-

I know his fee is high but I spent $4000 for 2 IMOs and

it was due to my POA that I needed the second one-yet by then he had a VA IMO to knock down so it was well spent-

but the SC direct death claim you presented here is very strong-in my opinion-

"IF I can prove that the VA lowered his rating 12 months after the original 100% rating (by them) (due to spouse(me) applying for education benefits) then WOULD I be able to go for EED and try to get that 1970 decision reversed"

that might be possible under a CUE claim-a TDIU vet filed a CUE due to a similiar circumstance and succeeded - I posted that claim here but will need to find it-

The problem would be the regs from 1970- do you have that old decision?

If I were you I would see if Dr. Bash and your rep feel that the direct SC claim is the strongest-medically-

you can still file the Section 1151 just in case,or put it on hold- but just use one IMO to focus on the direct SC claim.

There is no time limit on filing Section 1151 claims.

[Judy]

Berta,

The problem would be the regs from 1970- do you have that old decision?

YES, I do. I have every document that VA (and I) ever created related to this case. I have the original everything in my hands.

I am thinking that in my circumstances, the one IMO focused on the SC DIC is the best way to go since Dr Bash AND the SO think the SC case is a strong one.

I just have an idea that the Sec 1151 is not necessary as it would probably do me no good to have that one.

I am more interested in waiting to see my C File (already ordered) and perhaps pursue that avenue INSTEAD of the 1151.

Judy

[Berta]

Good for You! I save everything from VA too and highly recommend everyone do that.

This case might help your rep prepare a good CUE claim:

http://www.va.gov/vetapp03/files/0319228.txt

This is one of my favorite CUE claims.In part:

"The Board, in its 1983 decision, referred to the termination

of TDIU once, on page 2, as a matter of procedural history.

There was otherwise no recognition of the legal significance

of such termination. In treating the veteran's claim as one

for establishment of TDIU, the Board applied an incurred

standard of review to the veteran's appeal. In particular,

the Board failed to apply the provisions of 38 C.F.R.

§ 3.343. The Board failed to demonstrate that actual

employability was established by clear and convincing

evidence prior to the termination of the TDIU rating. In

effect, the Board improperly reversed the standard of proof

by requiring the veteran to prove entitlement to a TDIU

rating. This is the type of error that when called to the

attention of later reviewers compels the conclusion, to which

reasonable minds could not differ, that the result would have

been manifestly different but for the error. Accordingly,

for the foregoing reasons and bases it is concluded that CUE

was committed as a result of misapplication of the

regulations in effect at the time of the Board's 1983

decision.

ORDER

The May 20, 1983 decision by the Board which denied

entitlement to TDIU was based on CUE. The Board's May 20,

2003 decision is accordingly reversed; TDIU is restored. "

(20 years of retro due to clear and unmistakeable error in a final prior BVA decision.I would think the veteran did retain a ,lower level of comp during this time and that the VA owed him the difference between what they continued to pay him and the TDIU they owed him for 20 years.Unfortunately the vet rep argued the matter incorrectly- This CUE had to be filed as a Motion before the BVA-because a BVA decision had subsumed the RO decision-but the BVA overcame that error-also this case references Bell- another point vets have to consider if filing CUEs that involve the aspects and date of Bell.The CUE award clearly goes over the regs at the time. The VA was messing around with TDIU in those days too and yet they didnt have many TDIU vets as they do today.)

Edited October 26, 2007 by Berta