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 -many here have their private email info open-

I could not add any more advice than this anyhow in email.

I thought you originally felt you had filed a Section 1151 issue- if not maybe best to formally withdraw that claim-

The VCAA letter is quite clear as to what they need-

On the Election Form I suggest that you put down that your are AGAIN enclosing the IMO from Dr. Bash and refer them to(and attach it again if possible-all the evidence they have already received that was NOT considered in the denial letter.

I suggest adding this statement to the election form-

"I have no other information or evidence to give VA to substantiate my claim. Please decide my claim as soon as possible-" add here "Based on the medical evidence AGAIN enclosed and the evidence you have already received-as listed and attached AGAIN and ignored by the VARO in the denial decision."

The blank form can be scanned into word and then typed on.

That is how I prepared the VCAA election form I got last year on a separate claim.

I made sure that I listed on the back of the back of the form all of the evidence and then I attached it all again.

There was no way I would sign something that gave them a way out.

This part of the VCAA has to be changed.Because a vet can sign this part and tell them to decide the claim on what the VA has already shredded or lost-or will just continue to ignore-setting up another denial.

There were errors in the VCAA letter I got last year but it is the only legal one I have received since 2003.

I pointed out their errors and suggested they properly decide the main claim that was filed 2 years before this one that the legal VCAA letter was on.

But I made sure that what I signed drew out all of the evidence and I sent it again with the Election Notice.

In my opinion these VCAA election Notices -as many reps know too- are a way out for the VA.

If a vet or widow signs it and tells them to go ahead and decide the claim on what they got-

without telling them again what they should have or attaching it all again- the VA clearly can continue to ignore the evidence.

VA said they had NO evidence from you-

this is where a vet rep should step in- but most of them wont.

[Judy]

Berta and all,

I am sorry to be so lengthy and wordy but this is my life... I know you all know how I feel.

Here is my email that I am composing to the VA Rep who talked to me on the phone last week, acknowledging my reopened claim of OCTOBER 2007 and the IMO from Dr. Bash which he says is IN THE CLAIM FILE now.

[**please remember that my spouse was 100% for 22 years at time of death (1990) and that my original claim AUGUST 1990 was for SC DIC. It was denied November 1990, appealed, remanded by BVA to RO and denied again. I wrote the President of the United States, he sent request to BVA to look at the case again, they sent it to VARO and AGAIN it was communicated to me that it was denied in 1995.**]

Here is the email and I am asking for any advice on how to improve this email (drafted at the moment)....I know it is so critical what we say and DON'T SAY. This case is just so totally convoluted and screwed up...

email:

Mr XX VA REP,

Per our telephone conversation last week, you told me the file on my claim (referenced above) for SC DIC compensation INCLUDED the IMO from Dr. Craig Bash and that the VARO had received it, incorporated it into the file and it would be used as "new and material evidence".

You instructed me to wait for the VCAA letter and to check the box "I have no other information or evidence to give VA to substantiate my claim. Please decide my claim as soon as possible."

Please note:

I have received the VCAA NOTICE RESPONSE and it states "you were previously denied service connection for DIC 1151. You were notified of the decision on November 08, 1990. The appeal period for that decision has expired and the decision is now final. In order for us to reopen your claim, we need new and material evidence."

• To qualify as new, the evidence must be in existence and be submitted to VA for the first time. Although VA will make reasonable efforts to help you obtain currently existing evidence, we cannot provide a medical examination or obtain a medical opinion until your claim is successfully reopened.
  
• In order to be considered material, the additional existing evidence must pertain to the reason your claim was previously denied.
  
  
  Referring to Page 4
  
  "How You Can Help and How VA Can Help You
  
  We have received the following:
  
  
  • Your claim for benefits, which we received on August 21, 2008
    
  • No evidence to support this claim has been received to date."
    

  Mr. XX VA REP, this is a contradiction to our telephone conversation during which you told me that according to the VA file on this case, it shows the claim was REOPENED OCTOBER 2007 and that you had in the file at this time the INDEPENDENT MEDICAL OPINION from Dr. Craig Bash which is dated OCTOBER 2007, received by VARO HOUSTON and ADDED as "new and material evidence" to the claim file.

  HOW can I check the box "I have no new evidence......." when "No evidence to support this claim has been received to date" is stated herein?

  Also, please note that this is a reopened claim which was originally submitted in 1990 and subsequently denied (see above quote from your document) NOVEMBER 8, 1990.

  The claim was NOT DIC 1151, it was for Service-Connected DIC claim as the veteran was 100% disabled from (prior to) discharge on May 29, 1969 through date of death August 8, 1990.

  Why is this stated incorrectly?

  The VA has sent me this VCAA with inconsistent information and unclear claim type as well as erroneous status. If they are quoting the decision of November 8, 1990, it was clearly NOT DIC 1151, it was SC DIC.

  The VA now states "claim for benefits, ...received on August 21, 2008"; this is incorrect. This claim was clearly REOPENED OCTOBER 2007, from the original claim of AUGUST 1990.

  The VA now states "No evidence to support this claim has been received to date"; this is incorrect. You stated the INDEPENDENT MEDICAL OPINION from Dr. Craig Bash is in the claim file as new and material evidence to be considered at this time.

  Please reply and offer explanation of the inconsistencies in this VCAA RESPONSE as soon as possible.

[Berta]

I am completely confused myself-

"The claim was NOT DIC 1151, it was for Service-Connected DIC claim as the veteran was 100% disabled from (prior to) discharge on May 29, 1969 through date of death August 8, 1990"

If the veterans was 100% 'service connected' from those dates-you should have been eligible for DIC under

Section 1318 entitlement-

if he was Not service connected for this 100% disability- then I hope the opinion Dr. Bash gave you fully supports a medical connection of his conditions as on the death certificate-directly due to his service with specific references to his SMRs.

I think the email draft seems to make your point- but it is critical to send them back the VCAA election form and-as I suggested- to again state and attach the medical evidence.

Although an Iris request I filed I did acknowledged receipt of my IMOs long ago-it meant nothing as they were continuously ignored -even when I printed them on the back of a letter to the director asking them to be considered -early 2006 -but by December 2006 -the Iris response states that the VA NEVER received the IMOs at all.

The BVA recently found copies of them from 2004 in my C file-

If I had actually received a VCAA response election form- they would have been attached to that with a statement I suggested you use on the VCAA election form.

You can certainly argue these points about the VCAA letter but they stated what they needed in the VCAA letter and I strongly suggest-whether they say they got the IMO or not- to refer to it again and attach it to the VCAA response.

[tssnave]

Judy/Berta -

I have been following this thread just for GP to let my spouse know what kind of shenanigans the VA may play with DIC claims but with Judy's last post I am confused as well.

I thought if you had been SC 100% for over 10 years and died then DIC was uncontestable no matter WHAT the cause of death was.

That the cause of death having to be related to your SC disability only came into play when you dared to die before you had 10 years 100% SC.

Berta, please confirm if the above is correct and if not, please clarify.

Judy, hang in there.

Thanks,

TS Snave

Edited October 25, 2008 by tssnave

[Berta]

TS You are absolutely right-

I was under the impression that Judy's husband had not been service connected in his lifetime for whatever is on the death certificate.

These claims are very diffult to succeed in.

NOT impossible but the widow or widower has the burden of proving:

not only that the veteran did have a compensable SC disability in their lifetime and

that the SC disability did cause or contribute to the veteran's death.

These claims need very strong IMOs that fully consider the veteran's SMRs.

We had a widow named Emily here-who many many years after her husband died- proved that he should have been service connected in his lifetime for heart disease due to getting a venereal disease in service- and that the heart disease caused his death.

She had more than one medical opinion to support this and received a very large retro DIC check.But it took her years to succeed.

Unfortunately she did not believe me when she insisted they owed her accrued benefits.

She lost that claim at the BVA -and probably at CAVC by now.

Accrued benefits are only payable if the surviving spouse files a 21-534 within a year after the veterans death.

If a widow or widower does not have a very strong IMO for DIC claims in which the veteran had no SC rating at all they might have to obtain another one from a different doctor.

I am checking thru the older posts on this-

I was not under the impression he was 100% SC.

[Berta]

Ok I am wrong-it appears Judy's husband had SC at 100% for Hodgkins Lymphoma that was reduced and I dont know if he appealed.

The death certificate says he died of AHD.

The IMO from Dr. Bash must clearly state that the Hodgkins contributed to the AHD with full medical rationale.

There can be countless reasons for AHD as cause of death.

If the coroner wrote the Hodgkins Lymphoma as contributing to death- regardless of whether the SC was reduced or not- that could award the claim.

Apparently the coroner didnt feel this was a factor in his death.

This is why autopsys should always be done.

It doesnt hurt the deceased a bit.

My husbands autopsy proved my FTCA case. He only was autopsied because he was an organ donor- I didnt even think at time of the organ harvest that I would need the autopsy to prove wrongful death.

But I did.

It seems this was a Section 1151 issue in a remand.

Regardless of what the VA opiner said on that issue- I wonder if the Section 1151 claim should have been pursued along with the direct SC death claim.

If any other conditions were listed on the death certificate with priority over the omission of the Hodgkins lymphoma-

as contributing to AHD-

I hope Dr. Bash's IMO was strong enough to overcome that problem.

I got a local vet an award for AO Hodgkins.

But he doesnt care what he dies of because the award was under Section 1151. They almost killed him.

The VA admitted already that they shortened his life so even a fatal heart attack would award his wife DIC-

actually he has had this award for over 10 years by now I think-she would receive DIC under the ten year rule.

AHD has numerous causes and etiologies.It is a ballpark assessment of cause of death Does the death certificate say more than that as cause of death?

It certainly should have something else listed as contributing.

Didnt the POA early on see the potential of Section 1151 here?

It is same as my husband -atherosclerotic heart disease , which VA knew he had but never treated-advanced to the point of causing strokes and heart disease and his death.

I found within the ECHO, 2 EKGS, Blood Chem reports, etc etc, that

the VA knew more than 6 years before he died that he had AHD and he got it from something (which ultimately was DMII evident in VA med recs back to 1988)- and never diagnosed or treated.

If the VA med recs reveal that Judy's husband medically had AHD in the clinical records but was not treated for it- that is a prime case of malpractice.

An ECHO report reveals the measurements of the arteries. The Blood Chem reports reveal if the triglycerides are abnormal.he Ejection fraction shows how the heart has been compromised by AHD.

Countless types of clinical med recs could potentially reveal diseases that have not been properly diagnosed or treated.