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'

[Pete53]

I would write them back and inform then that you are making preparations to file a Writ of Mandamus. They have taken far to long.

It won't look good to the new sheriff either

[Judy]

Today I finally reached Mr. VARO Rep (the one who unexpectedly called me back in October 2008) and told him that I had sent the VCAA Response, they signed for it November 3rd and since HE told me that my claim was "already in the hands of upper management" at that time, could he please give me a status update.

I now told him that my IRIS returned "claim in the development stage" and my USPS letter dated 12/19/2008 says "your claim is still being processed, sorry for the delay"....could he please explain. Yep, he looked in the computer and "read all the notes" then told me that on December 11th, Dr. Bash's IMO was sent to VAMC in Houston for "additional evidence" (to support my claim he says... NOT!...we all know the purpose of this action is to REFUTE the evidence from Bash and to help DENY the claim). So I asked him WHAT the review board had requested (from VAMC), was it "additional medical evidence/facts" OR was it a "medical opinion" they were seeking...yep, you guessed it....he admits they asked for another "medical opinion" from yet another VA DOCTOR... now the rep says that since they have done that, they now have 60 days to gather that additional information....

thank you says I.

It has become evident to me that whatever time period you think they have to respond or perform some function...well thats just not true... they have variables, loopholes and many more tools they employ to delay decisions, refute your claim as well as the facts and to keep on denying your claim.

Judy

[Berta]

Unfortunately Judy- what you said is so true- we get the deadlines- they dont have any.

I only hope that this medical opinion will take into account the IMO from Dr. Bash.

The VA threw out the initial VA IMO I received because not only Dr. Bash-in his second IMO- but I as well -had attacked the medical errors in it point by point.

It was based on only 3 or 4 med recs and totally had disregarded all of the significant medical evidence.

BVA order a New opinion,not an additional one.

That opinion has been prepared and I am set for decision and heard that this new VA examiner had remarked that I ad sent them a lot of evidence.

Still I am prepared to get another IMO-

We just dont know what to ever expect.

I raised Mariano V Principi and then reminded the VA - this all went to the AMC and was part of the record the VA doc saw (I think)

that even with a new negative IMO from VA-Relative Equipoise should kick in and provide me an award of direct SC death.

I do believe that the new opinion did consider the evidence I had- one can never anticipate anything however-

Dr. Bash prepared these opinions in 2004 and then in 2006 -neither was redundant to the other-but it took an order from the BVA in Sept 2008 to get someone at VA to read them.

I never received a VCAA letter in 2003 after I filed the claim-telling me exactly what they needed- in your case you got one and the response form and any other evidence you sent them should get you a decision much sooner than mine is taking.

Lets hope this goes OK for you and your long wait is coming to an end.

[deltaj]

Judy, Was it your husband's rating which was reduced from 100% for awhile? If so, request a copy of your late husband's C file and look at whether V.A. reduced his 100% erroneously. V.A. has regulations that state when a rating has been in effect for 5 years or more it is not supposed to be reduced without good evidence. It also has regulations that a rating is not supposed to be reduced based on only one examination. If this was done contrary to regulation it was clear and unmistakable error. If you find this kind of an error, you can point out the error to V.A. with the help of a service officer to make the argument that the 100% rating would have been in effect for more than 10 years had it not been erroneously reduced by V.A. contrary to whatever regulations apply. BE CAREFUL WORDING ANY CLAIM OF CLEAR AND UNMISTAKABLE ERROR BECAUSE THESE ARE EXTREMELY TRICKY.

[deltaj]

Judy, You state that your husband was rated 100% for 22 years. I found another post on hadit posted in August 2008 entitled: Please clarify if DIC is for 100% vets or only for 100% P & T vets. That post quotes a section of the M21-MR manual that V.A. representatives use to process claims. If states that after a claim for service connected DIC is received, the very first thing V.A. is supposed to do is consider entitlement to DIC under 38 U.S.C. 1318. In other words, if a veteran has been rated 100% for 10 years or more at the time of death his widow is supposed to get DIC as if his death was service connected. You mentioned your husband's rating was reduced for awhile. If he was not rated 100% for 10 or more years at the time of death, you need to look at whether V.A. made a clear and unmistakable error in reducing his 100% rating. V.A. is supposed to have clear and convincing evidence before reducing a rating. V.A. is also not supposed to reduce any rating which has been in effect for 5 years or more based on only one V.A. examination. To find out if V.A. erroneously reduced your husband's rating, you will have to obtain copies of his V.A. file and review it for V.A.'s reasons for any reduction.

[deltaj]

Judy, did you complete a formal claim form for DIC? I gather Judy's claim for DIC was denied in about 1990. I tried to find out when 38 U.S.C. 1318 took effect. I searched under 1318 at the U.S. Court of Veterans Appeals website and found the first case I opened by the grace of God discussed some of the legislative history of 1318 and related regulations: 97-2178 Doris Marso v. Togo West. It quotes a V.A. precedent opinion 2-81 and states when the "entitled to receive" language was added to 38 U.S.C. 1318. Judy, call your law library and ask them to send you a copy of 38 U.S.C. 1318 as if was in effect at the time of your claim and at the time of the denial. In the meantime, does anybody have a copy of the M21 pertaining to DIC claims which was in effect in 1990 or 1991? Judy, please find your first DIC denial letter and put it in a safe place.