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]

I must admit- I am lost in all this-

If the IMO from Dr. Bash states that the SC disability contributed to his death-with a full medical rationale for that - then this will help you to get DIC-

unless the VA successfully rebutts Dr. Bash's opinion with one of their opinions-it is hard to know what they will do-

Also the medication could have possibly had a detrimental affect to his heart:

from: http://www.medicinenet.com/script/main/art...rticlekey=41600

"GENERIC NAME: DOXORUBICIN - INJECTION (dox-oh-REW-beh-sin)

BRAND NAME(S): Adriamycin, Rubex"

"This medication must be given slowly and directly into a vein (IV) through other intravenous (IV) fluids. Do not inject this medication into the muscle (IM) or just beneath the skin (subcutaneously). If this medication accidentally leaks into surrounding tissue, the skin and/or muscle may be severely damaged. Notify the doctor immediately if redness, pain, or swelling occur at (or around) the injection site. Doxorubicin may cause heart problems (including heart failure) or bone marrow suppression. Notify your doctor immediately if you develop an irregular heartbeat, trouble breathing, swelling of the hands or feet, easy bruising or bleeding, dry cough, or signs of infection such as fever, unusual fatigue, or persistent sore throat. Heart problems may occur during therapy or sometimes, months to years after receiving this medication. The risk of developing heart problems varies depending on your dose and condition. Tell your doctor if you have liver problems since the dose should be decreased in this situation. Your doctor will closely monitor you while you are using this medication."

This is the benefit of having a good service rep who can take the time to sort all of this out-

I believe that the vet rep you have is focused mainly on the DIC claim and it sounds like the IMO you have will award DIC-unless the VA can medically challenge it.

I assume that Dr. BAsh had Dr. Montero's statements-

"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."

and that Dr. Bash fully questioned any medical rationale that this doctor added to his past opinion.

[Judy]

Berta, this is a most confusing case all the way around I guess; SO says as much also.

From my previous post, I'm going to paste this:

"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".

Dr. Bash was quoting from the SSOC and decision of 1992 in my posession.

** We hope to see the full MO from Dr. Montero of the VA when we obtain the C File; that should tell us his full rationale etc.**

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."

I DO hope that the SC DIC is the award here as that is of course what I want and need to happen.

The 1151 would become insignificant if that were to be awarded.

[Judy]

Berta and all,

I want to post an update here and I really don't know where to start.

I met with my SO this week after he met with a VA rep and obtained the C file.

The MO from VA doc in 1992 and upon which they based their denial (after REMAND by BVA to RO) is ludicrous to say the least. It reads (in TOTAL, mind you!) thus:

" I reviewed the record on Mr. B----. According to the Death Certificate this veteran's Cause of Death was Arteriosclerotic Heart Disease.He had been treated for Hodgkin's lymphoma in the past. There is no known relationship between the presence of Hodgkin's lymphoma or use of Adriamycin and the development of Arteriosclerotic Heart disease. Thank you for your consultation on this interesting case." END OF MO..... unbelievable!

AT THAT TIME, they had in hand, in the file, a VERY detailed 2 page IMO supplied by an independent physican (I obtained and submitted) which my SO says was "excellent", and my SO says he is "dumbfounded" by the BVA/VARO decision as there is "so much evidence" here supporting your DIC claim. SO also said that he isn't SURE that they didn't commit CUE by the mere fact they (VA) accepted this as an "MO"... it is written on a "MEMORANDUM" and does not refute the IMO they had in hand; does not even address one single detail of the medical file (in and of record at the time) NOR of the IMO they had in hand. He said that IF they should NOT have accepted this as an MO, that is a Torte... when I asked about the 2 yr statute of limitation on Torte FTCA, he reminded me that it begins "when the appelant/veteran becomes aware of the error" and that "I" never saw this document or was aware of it until this week... thus he said, the two year period begins now.

The SO said that NEVER in his career as SO has he ever seen such a convoluted file as this, containing so many errors on every side that it is the biggest mess he has even viewed. He said IF he had been my SO originally in 1990, this would have been won, hands down.

He is also suggesting that we address the error VA committed when they decreased his rating from 100% to 30% in 12 months (1970 after the original 100% was granted) (38.3.22 (a) (2)(i) and 3.22 (B) (1) which cites the 10 yr rule. Possibly Kevin Brown v Brown ("Where, as here, the Board has reduced a veteran's rating without observance of applicable law and regulation, such a rating is void abinitio and the Court will set it aside as "not in accordance with law""" (38 U.S.C.A. 7261 (a) (3) (A) (West 1991). Am I offbase here Berta? Since Cancer by nature (lymphoma/Hodgkins) is typically in and out of remission, SO says we might be able to prove (with Dr. Bash's IMO) that they never should have decreased the rating at that time. Hope this pans out as it would place him at 100% for 20 years and end the battle (so to speak).

Cue and Torte....this remains to be figured out right now but another thing I found from his C File was this: SO said in 1981 during hospital admission, VA gave him a "TEMPORARY" rating of 100% from Sept 1981 THROUGH Nov 1981..... the record shows that in June of 1982, they rated him 100% permanent! My question to SO was.... "what about the interim 7 months? What was he rated and how, during that time?"... he said "good question Judy, it doesn't say in this file anything about that missing 7 months"... to which I replied, "I can assure you that he was drawing 100% from the VA during those 7 months". Now all put together, his 100% continous rating from the VA fell at 9.5 years and of course, the 10 year rule was in effect at that time.

Digressing a bit, I am researching Elkins v West with regard to a "clearly erroneous standard" being used (in decision) and I need to find more on "unrebutted evidence which was ignored" since the IMO they had in hand was not rebutted by the VA Doc MO (calling it an MO is a wild stretch here).

And to add to the muddy water, SO said he has never seen a death certificate with ONE adamantly stated COD like "arteriosclerotic heart disease" WITHOUT adding a 2nd or 3rd line as to the POSSIBLE secondary cause of the AHS, ie;, what might have been the contributing factor. Yet another HUGE error per him.

Okay, sorry, I'm not trying to write a book here but really want some input from you all.

Let me get back to work on this.

Thanks for any comments,

Judy

[Berta]

Good Judy-I agree too to go with the direct service connected death.I get 1151 DIC but re-opened when I discovered what really caused my husband's death-Same amount of DIC- no change there- but there are other benefits under direct SC death that they dont pay under Section 1151 DIC awards.Good Judy-I agree too to go with the direct service connected death.I get 1151 DIC but re-opened when I discovered what really caused my husband's death-Same amount of DIC- no change there- but there are other benefits under direct SC death that they dont pay under Section 1151 DIC awards.

[Judy]

Berta, I agree with you and I also think mine is a SC DIC, all the way.

The SO at last week's meeting suggested that IF we could actually get the death certificate amended, that would be HUGE in this case of mega errors.

I awoke at midnight last evening and went to the computer to search for the ME and I actually found him residing in Florida. I emailed Dr. Bash today to ask if he would contact that Dr.and explain our situation as well as the med history of the veteran. I believe that IF that ME had actually known the med history of the deceased, he would have signed off on the death certificate differently (SO thinks that is a sure thing that he would have) and SOOooo, if Bash could communicate to him (perhaps even fax to him) whatever is needed, perhaps, just perhaps theres a chance that he might be willing to amend the death certificate. We'll see. Not sure how this is going to play out but I know that I have to do everything possible and this is one possible avenue.

I also sent Dr. Bash a package of med recs yesterday that we didn't receive until recently, namely the decade of the 1970's which is the period in question where VA decreased his rating for 11 years while med recs show he was actually hospitalized during that period. This would also be HUGE.

Then there is the MO from the VA doc that was four sentences on a MEMORANDUM with no reference to my IMO that was submitted, no reference to the medical facts of the case and no indication that he actually read anything...nothing...

So, onward we go. Waiting to hear from Dr. Bash on several several points now.

[deltaj]

There saying that there is no relationship between cancer and heart disease. This situation is similar to a friend of mine whose husband was a Vietnam veteran and he died from cardiac arrest several years after he had a stroke. I pointed out to my friend that lung cancer causes pulmonary embolisms and that it turn can cause stroke which in turn can cause cardiac arrest. I'm wondering whether in this situation cancer can cause a pulmonary embolism which would manifest itself as a blood clot which would make the veteran's heart attack appear to be due to heart disease. It might be helpful to have Dr. Bash look at this issue since an IME has been requested.