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 Reviewed the many past posts here on this claim since Sept 2007- this is not a FTCA issue as it appears the Section 1151 issue was raised long ago in a BVA decision-

that would put knowledge of the malpractice out of the 2 year statute.

Perhaps a good malpractice lawyer would see that differently- I dont know and some of them can be directed contacted at their web sites.

Judy-I find I am repeating exactly what I suggested to you in September 2007-

I think I even suggested that you print off my replies and email them to Dr. Bash.

I saw both a possibility of direct SC death and a strong possibiliy for Section 1151 DIC award.

Dr. Bash apparently saw those possibilities too.

It also seemed to me that your rep at the time also saw the Section 1151 potential. Maybe -if you did not send them a Section 1151 claim, the vet rep did himself on your behalf- he should be commended if he did-

and if that is still an open issue with the VA (the Section 1151 claim) I suggest that you use the IMO for both claims- separately- and then take the time to thoroughly highlight, in copies of your husband's VA medical records, the exact indications of malpractice that I believe Dr. Bash saw too.

I went through this same thing years ago-

I had to hold their hands and explain medically what the EKGs and ECHOs etc revealed and I highlighted the medical records of the erroneous diagnoses-and explained how the MRI supported my charges.

I didnt have an IMO=but you do-

and it looks as though Dr. Bash tried to cover both direct SC and Section 1151 SC.

I studied cardiology years ago- and that is how I won the FTCA case-

I certainly see a valid Section 1151 claim here-=and I sure think the VA was negligent and caused your husbands death-or at least contributed to it with the accutane and by overlooking other clinical indications of CAD.

I am repeating what I posted here at hadit over a year ago and have nothing else to suggest.

If your rep was supportive of the 1151 (and I thought he was at the time) and the VA acknowledged the claim-that might be the only chance to get DIC in your case.

[Judy]

Thank you Berta for opining once again.

I do not understand whether they are looking at SC DIC OR 1151 DIC OR both, therefore I do not really know how to respond (nor WHAT claim I am responding to).

I think perhaps its time for me to get a lawyer.

Judy

[Judy]

My POA said "let's don't file the 1151 at this time; lets go for the SC DIC as I feel you have a very good chance at that".

Dr. Bash said "let's hold off on the IMO for 1151 and do the one for SC DIC first"; so he did.

I NEVER thought I filed an 1151 claim.

[Judy]

HELP Please.

Berta and all,

I am going through my old documents and found this:

When I originally REOPENED the claim (with a SO who told me 3 weeks later to find somebody else for my SO as he didn't have time to help me) this is what he wrote on 21-4138:

"I submit my following VA Requests:

*Reopen claim for DIC and cause of death for my late husband, (named).

*1151 Negligence Claim

I contend that my late husband/s cause of death was service connected induced and related to his service connected medical condition(s) and that his negligent care at VA Medical Center, Houston, Tx also was a contributing factor to his cause of death.

I request that my reopen claim and all records be transferred to VA Regional Office, Houston, Tx and that the sixty (60) day process of claim be waviered."

Does this appear to be a reopen of the original SC DIC claim AND a request to open a separate 1151 claim? That is how I see it.

Does it matter that the POA was transferred from this SO to a different SO (different organization)?

I just have to get a better understanding of why they are presently calling my "reopened" claim an "1151" and saying that my ORIGINAL denial of September 1990 was based on an 1151 claim. I didn't even know what an 1151 was back in 1990, I simply filed for "DIC" (SC) as I thought it was automatic being that he was SC at 100% for so long.

Do you think that I have an 1151 claim open WITH a separate claim for SC DIC? IF SO, they have not responded to both claims but rather it "looks like" that in all their SOC's and communications to me they have jumped back and forth between the two and never followed through consistently on either one. Hmmmm, thats a very provocative thought at this point.

Judy

[Judy]

Forgot to say this SSOC is dated OCTOBER 2007 and is from POA (Texas Veteran's Commission).

The POA was transferred (to American Legion) NOVEMBER 2007.

Also I am reading:

(after VARO denial September 1990; filed NOD and appeal went to BVA, then in 1992 this is what I received from BVA, and it states:

"THE ISSUE"

Service connection for the cause of the veteran's death."

after INTRODUCTION paragraph comes this:

"REMAND"

"The veteran's certificate of death shows that he died in August 1990 from arteriosclerotic heart disease. At the time of his death, service connection was in effect for nodular sclerosing Hodgkin's disease, evaluated as 100 percent disabling from June 28, 1982. (**remember that reduction from 100% to 30% between 1971 and 1982? This is the crux of the entire problem and of course we are contending in Dr. Bash's IMO that this was a totally unjustified reduction. However it was not appealed**). The appellant, the veteran's widow, is claiming, primarily that drugs and treatment provided for the service-connected Hodgkin's disease caused the fatal heart disease. The current record indicates that the veteran was provided radiation treatment while in service and after service at the Depart of Veterans Affairs Medical Center in Houston, Texas. In order to comply with the duty to assist the appellant mandated under the provisions of 38 U.S.C. S 5107 (a) (1992), the RO must obtain all pertinent records of treatment for the veteran's Hodgkin's disease provided during service and in the post service years. In view of the foregoing, this case is REMANDED to the RO for the following actions.

1. The RO should attempt to obtain all inservice radiation treatment records. All evidence obtained should be associated with the veteran's claims folder.

2. The RO should also attempt to obtain all records of treatment of the veteran for Hodgkin's disease, including radiation therapy provided at the VAMC in Houston, Texas. These records should be associated with the veteran's claims folder.

Following completion of this action, the RO should review the evidence to determine whether or not the appellant's claim may now be granted. If not, both she and her representative should be provided a supplemental statement of the case and an aopportunity to respond. Thereafter, the case should be returned to the Board."

That does NOT indicate an original 1151 claim as the NEWEST VCAA letter states.

[Judy]

VCAA NOTICE of February 11, 2008 says:

"We are working on your application for service-connected compensation for service connection for cause of death and negligence claim for treatment at VAMC Houston."

Wow, I failed to see that previously.

That would indicate that I have two claims open at this time....which one am I replying to and at what time?

Then in May 2008 (cover letter date to MARCH 21, 2008 decision letter) I received decision stating: "We made a decision on your reopened claim for service-connected death benefits received November 2, 2007".

It goes on to say:

"DECISION:"

1. Entitlement to Dependency and Indemnity Compensation under 38 USC 1151 is denied.

2. Service connection for cause of death remains denied."

Of course, this is when they denied receiving Dr. Bash's IMO in support of the claim.

Geez, I am confused as is possible for one to be.

Okay, it would seem that I am still within the one year allowed for response to submit additional information or evidence.... but how can I tell which claim I am submitting evidence for here Berta?

It would appear that the NEW VCAA letter I just received (OCTOBER 2008 is related to the 1151 claim) so which one did I submit Dr. Bash's IMO for?? I thought it was for the SC DIC reopened claim...

Do I need to file an appeal? on what claim?

I now have before me the VCAA stating:

"You were previously denied service connection for DIC 1151. You were notified of the decision on November 08, 1990."

and of course as previously posted here a few days ago, it goes on to say "your claim for benefits was received August 21, 2008 and no evidence to support this claim has been received to date."

I feel like a goose in a snow-storm.

Judy