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]

Judy -if a widow or vet has one opinion for and a VA quackola opinion against- the Benefit of doubt is supposed to be used and the vet or widow should succeed at that point-if the opinions have equal merit-

That is why I mentioned Mariano V Principi-

I reminded VA of that reg recently (38 CFR 4.3 aand 4.6) and also used this part of a BVA interpetation of Mariano for my claim-

"Here, because

the only medical opinion evidence supports the veteran's

claim, service connection for Meniere's syndrome is

warranted. In this regard, the Board points out that the

Court has cautioned VA against seeking an additional medical

opinion where favorable evidence in the record is unrefuted,

and indicated that it would not be permissible to undertake

further development if the purpose was to obtain evidence

against an appellant's claim. See Mariano v. Principi, 17

Vet. App. 305, 312 (2003).

From: http://www.va.gov/vetapp06/files5/0631741.txt"

In my case all of my medical evidence remains unrefuted-in your case- they would have to refute Dr. Bash with another VA IMO- but they certainly have to consider Benefit of Doubt First- before they even attempt to get another VA opinion-

I know your rep is considering this but also he is looking out for the potential land mines-and I think this is what a good vet rep should do-

anticipate anything the VA might pull.

[Judy]

Wow Berta! Thank you so much for the reference to Mariano v. Principi- and the (38 CFR 4.3 aand 4.6); I shall print this out and add it to my personal reference file.

Perhaps it won't go that far (2nd IMO from VA doc) as they already have one in the file; however the SO pointed out that "WE" never got a full copy of the original VA doc's MO (the one mentioned and referred to in the last decision from VBA) so Dr. Bash said "I reserve the right amend my opinion after obtaining a copy of Dr. Montero's opinion in full as I don't have it at this time and neither does the spouse of the veteran".

NOW, SO says yesterday that the statement from Bash is both good and bad. While it says he wants to be permitted to "amend" his opinion after reading it, the SO also points out that in saying this, Dr. Bash "left the door open" and this will be used against us by the VA. They will first insist that Dr. Bash make his statement/IMO conclusive and complete. SOOooooo, lay person that I am, I'm not sure how that will play out.

IF VA gets another MO from VA doc then that will make two of them for their side; I think that is kind of what SO was thinking or seeing here.

Of course once I get the C File, I should have it and will forward it to Dr. Bash and perhaps at that time he can amend his IMO and in doing so he will "close that door" that the SO mentioned.

I will of course, in the end, do whatever it takes to win.

One thing that really surprised me was the SO saying that he sees no real 1151 at this point (but did agree to re visit that issue later) and he sees no CUE at this point (again, we have no C File yet)

THanks Berta.

Judy

[Berta]

Judy-the actual VA opinion might not be in the C file-if not- you could send the VAMC where the opinion was done-a request for a copy of it-

If the VA doctor didnt comply with providing a full medical rationale and didnt have the veteran's medical records when they wrote the opinion- then that is a good avenue of attack on it-

In my case a VA medical opinion was done in Buffalo NY -but while my husband's entire clinical record remained here at the Bath VAMC.

The VA "expert" asked this local VA to fax to her 3-4 records from Rod's extensive medical file-she didnt even know the VA had admitted to causing his death or that a full autopsy had been done on him.

Dr. Bash -in his second IMO stated right away that the medical statements the VA doctor made were "medically inaccurate" and then further broke down the VA opinion.

I also rebutted this VA medical opinion extensively with references to Rod's MRI results, ECho, autopsy and other cllinical records-and supported my opinion with numerous treatises from prime medical sources in addition to my IMos from Dr. Bash- I reminded VA that I am competent enough to do this as this is how I succeeded in my FTCA/1151 claims.

I mention this because-if the SO does see Sec 1151 potential down the road that is something for you to keep in mind-your statements might help with any 1151 potential claim.

M21-1 Part IV (Sept 2004)Chapter 1, Part 3, Section 3.159, a, #2 states:

"Competent lay evidence means any evidence not requiring that the proponent have specialized education,training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed or described by a lay person."

In my past claims I was able to describe medical circumstances,and had knowledge of documented medical facts, supported by 6 years of entries and tests etc in the clinical record of my husband,to prove to VA that they killed Rod.(1998)

I did the same thing with the clinical evidence for my present claim and reminded them of that.

Also when I requested a BVA remand due to legal errors , I sent the BVA even more medical information to support my claim.

Oddly enough an audiologist stated something in an audio exam report(Rod had no hearing problems at all)that also fully supports my claim.

I drew out this medical evidence out with my remand request.

And have already talked to Med Opinions-about this if I need an additional IMO.They only need a few records for that opinion.This opinion is something the VA would never expect-and I can get it in a few days-

My long point here is that a veteran or widow or IMO doctor can attack a medical rationale stated by a VA doctor -in many ways-

with documented evidence.It is much better for an IMO doctor to do this however.But down the road this could help with a Sec 1151 claim.

You certainly might well have enough already to balance the scales-for Benefit of Doubt-

but the SO knows who owns the scale they use- he is thinking ahead-

just in case-

One thing about DIC- it is better to get DIC for a direct SC death then under 1151.

Sec 1151 widows and widowers do NOT get the ancillary benefits that a direct SC death brings-

There is no Peace with Honor in knowing a spouse is dead due to VA health care-

If the SO sees the direct SC death as the strongest case here-I would hold off on Sec 1151 as you would be better off with the Service connected death.

It would still be one more way to go- but with the IMO from Dr. Bash- you have excellent evidence for a DIC award under direct SC.

Edited November 21, 2007 by Berta

[Judy]

Berta,

You have been through a lot and makes my case look so small besides all you have fought so valiantly for and won too. You are a light unto all the people here on hadit and thank God for you and your knowledge not to mention your willingness to share that knowledge and to help others.

I was reading some of the postings and other threads here as that helps me to learn more but in reading tonight I came up with a question. In my case, Jim was re-rated by VA from 100% down to 30% in only 12 months after his original VA 100% award (I filed for Educational benefits; they re-rated him downward and denied the Ed. benefit claim). Dr. Bash has assualted that occurance in his IMO but MY question tonight after reading another thread is this: At the time the VA did this absurd downward rating change, Jim was drawing disability from Social Security. Would that have any bearing or effect on my case, in trying to prove (as Dr. Bash wrote "this veteran should have been rated at 100% the entire time" etc. etc.) that it was done in error by the VA??

I am thinking that IF we can prove that should not have happened, they would owe for those years that they didn't pay him at the higher rating (as they DID re rate him back at 100% again at a later date).. any thoughts or knowledge regarding this?

Judy

[Berta]

"MY question tonight after reading another thread is this: At the time the VA did this absurd downward rating change, Jim was drawing disability from Social Security. Would that have any bearing or effect on my case, in trying to prove (as Dr. Bash wrote "this veteran should have been rated at 100% the entire time" etc. etc.)"

If the SSA was solely for the Service connected Hodgkins lmphoma- the reduction should possibly not have occurred.

Did he have Hodgkins lymphoma (I think you have always posted Hodgkins Lymphoma)or was it non-Hodgkins lymphoma?

There is a big difference especially regading AO claims-

"Upon my husband's death the County ME signed the death certificate "Arteriosclerotic Heart Disease" (of course SC was Lymphoma/Hodgkins) (NO autopsy done)...so here is my question"

Non Hodgkins lymphoma due to Agent Orange has different regulations than other AO diseases-and is different from Hodgkins lymphoma-

NHL is awarded at 100% during active treatment phase and then the residuals are rated and the 100% is lost .

A veteran can be rated only "0" % or 100 % directly for non Hodgkins-

with the residuals rated separately.

Maybe this is why they dropped his comp-

and maybe he had Hodgkins ( but the VA used the regulations for non-Hodgkins in error-to drop his comp)

Do the medical records clearly define what he had as Hodgkins and is this consistent with what Dr. Bash found?

If they used the NHL regs for Hodgkins and he had Hodgkins Lymphoma- this could be a potential CUE-

but the claim for CUE would have to be filed under a claim for "accrued benefits" as due the vet in his lifetime under the accrued regs for survivors as within the Nehmer Stipulation.

Since this is an Agent Orange claim-there is no time limit to accrued benefits due a survivor-

all other survivors are only due 2 years of accrued benefits.

The NVLSP makes it clear in the 2007 edition of the VBM that ALL accrued benefits due any deceased veteran-can be due and payable to a spouse-which would cover even accrued SMC etc.But if the accrued benefits are not due to Agent Orange that is where the 2 year limit comes in-

Does the medical evidence and Dr. Bash specifically state that he had Hodgkins and not non-Hodgkins Lymphoma?

Do you have the complete decision where they dropped him and does it say they used the NHL regs instead of the regs for Hodgkins?

Edited November 24, 2007 by Berta

[Judy]

Berta,

To further complicate this case, he was diagnosed throughout the 22 years with different "forms" of the disease and many doctors commented on "this most unusual case"...etc.

However, the ORIGINAL medical report of 1968/69 reads:

"FINAL DIAGNOSIS: Lymphosarcoma, anterior superior mediastinum extending to the right supraclavicular area." AND:

"PATHOLOGICAL REPORT: Mediastinal lymph nodes: Nodular lymphosarcoma, reticulum cell type."

The word "Hodgkins" wasn't mentioned until later in the medical history (via Houston VAMC med recs) and at the first mention of Hodgkins, the doctors write about "this most confusing case".

The ORIGINAL VA Award of 1969 reads: " Service connected has been granted for Lymph Osarcoma, anterior superior mediastinum to right superclavicular, 100%" (OCTOBER 1969)

After applying for spouse's educational benefits in 1970, he received a re rating notice (I only have a form letter) that reads: "The evidence establishes that your service-connected disability has improved. The rating for your disability will be reduced from 100% to 30%." (THEN typed in as additional verbage) it also says: "We must deny your wife's claim for educational benefits as your disabilities are not permanent and total in nature." (AUGUST 1970)

**It is worth noting here as Dr. Bash did, that veteran had a recurrence in 1974.**

Now comes 1982 (he is hospitalized with recurrence) and a new VA decision reads: "The evidence shows that your disability of nodular sclerosing Hodgkins disease is now 100% disabling from June 28, 1982."

Berta, in the 1992 SSOC and REMAND, VA quoted the MO from the VA doctor as: " Dr. Montero concluded that the service connected Hodgkins Lymphoma nor the use of drug of Adriamycin caused/developed arteriosclerotic heart disease. Decision made to continue denial of service connection for cause of death."

**I'm not sure whether this is a discrepancy or whether it actually makes any difference to the case or not. The original SC didn't say "Hodgkins".

Are we nit-picking here or does it matter that this hodge podge of verbage doesn't match?

The Social Security disability he was drawing was the "one year" allowed for 100% disability and so it was related to the SC disability rating for the lymphoma.

Jim was never IN Vietnam so I don't think AO is an issue to consider here.

I am waiting on the C File and when I see it, I should be able to tell which regs they used each and every time (especially the 1970 reduction) and that will tell a story.

Judy