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]

Delta is correct-

for DIC claims filed after Jan 21,2000- in order to seek 1318 entitlement- the veteran-in their lifetime-must have filed a SC claim-

but of DIC claim was filed prior to this date-the survivor has a chance to prove hypothetical entitlement under 1318- "based on evidence in the VA's claim file " at time of death.

Also the VBM states that a successful CUE claim filed against a claim filed on or after Jan 21.2000 could also produce 1318 entitlement.

These are difficult claims but nothing is impossible-

The VBM uses as example a vet whose 100% P & T had been reduced by the VA-thus the widow could not get DIC under the ten year rule.

If the widow could prove the reduction was not within specific reduction guidelines-then the widow could potentially win this CUE and get DIC.

Also a past final unappealed decision that denied 100% P & T , could also be CUEd by the widow.

The revision of 1318 dated January 21,2000 was challenged in the Federal Circuit Court-

The revision allows a widow who finds that service records were NOT used by the VA in any determination-can re-open a DIC claim for 1318 DIC entitlement.

Judy -the VA is not allowed to take the last check of the deceased veteran out of a checking account-

I think this pertains to all deaths of veterans after 1996 and the VA has a new toll free number to help survivors determine if the VA tool this check from them against the regulations-

I regret I dont remember if this reg would affect you or not as to your husband's last SC check.

VA is supposed to attempt to identify these widows who-between 1996 and present-the VA took that last check from the checking accounts for the last month comp due the veteran.But the VA web site has mor info if any widow thinks they were affected by this improper procedure.

[Judy]

You two have me digging deep into the paperwork tonight...thank you. Thank God I never throw away a single thing. I have every document that ever went from me to VA or VA to me. Here is the April 1991 STATEMENT of the CASE wording:

"PERTINENT LAWS, REGULATIONS, AND RATING SCHEDULE PROVISIONS:"

" To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service (and not due to the veteran's own willful misconduct) either caused or contributed substantially or materially to the cause of death. (38 CFR 3.301)"

"The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or the contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. (38 CFR 3.312)"

" Contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death; but rather it must be shown that there was a causal connection. (38 CFR 3.312)"

"There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of co-existing conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. (38 CFR 3.312)"

then it continues and says:

"Service connection for cause of death is not established."

"REASONS FOR DECISION:"

"Arteriosclerotic heart disease, the cause of the veteran's death is not shown to have had its onset in service nor was it diagnosed within the presumptive period. There is no relationship between nodular sclerosising Hodgkin's disease the condition for which the veteran was service connected and the arteriosclerotic heart disease which caused his death."

I believe this clearly quotes the 38 CFR's in effect at the time of the original SOC.

In reviewing my files, I have determined that I filed the original DIC claim and they acknowledge receipt of it August 30, 1990. The first written communication I have from them is dated NOV 27, 1990 and is a "letter" format and does not state that it is an SOC however the letter does outline the options and remedies available to the claimant. Perhaps this is the way they did it back then?

I appealed this decision and in April 1992 the BVA REMANDED it to VARO who then obtained (I only saw this when I obtained the C file within the past 6 months) an "opinion" from a VAMC doctor which consists of two paragraphs, two sentences in each and states by the doctor "I have reviewed the files on Mr. Veteran and find no connection between the service connected disability and the cause of death."

That was the "opinion", written on a piece of paper with the heading of "MEMORANDUM"... that is all there was to it and based on that....VARO denied the claim again.

Does any of this have any evidentiary value at this point?

Let it be said here that Dr. Bash's IMO (the new and material evidence THIS TIME) is extremely specific with regard to the nexus, linking the treatment Jim received to the arteriosclerotic heart disease of the death certificate. He even found way back in the med rec's where high blood pressure was undiagnosed (for years) and of course the Accutane that he was prescribed during the 8 months prior to death and which EVERY MONTH (per the med recs) continued to drive up the Cholesterol and Triglycerides (7 times normal at the VAMC visit 8 days prior to his death)...but the med recs say "continue the Accutance; will discuss the possibility of reducing the dosage with Dr. so and so prior to patients next visit"....

Now to the reduction of disability rating discussion:

He was rated by VA at 100% July 25, 1969. Then in March 1970 I (spouse) applied for Educational benefits and on AUGUST 14, 1970 comes the unexpected letter stating:

"The evidence establishes that your service-connected condition has improved. The rating for your disability will be reduced from 100% to 30%" .... "We must deny your wife's claim for Educational benefits as your disabilities are not permanent and total in nature"...

He was discharged from USAF on MAY 29, 1969 with Nodular Sclerosing Hodgkin's disease and the rating was "100% Permanent" on the discharge. The original physicians report stated "prognosis for this individual is very poor" and "the life expectancy is less than 10 years".

But the VA rated him 100% in July of 1969 and BECAUSE I applied for Ed. benefits, they reduced him to 30% only 13 months later? A cancer patient? This is what blows my mind completely.

He did not appeal this to VA, he didn't know that he could and he didn't. So until he was hospitalized with a major recurrence (there were minor ones prior to this) in 1982 he elected USAF pay (income was greater than the 30%). During this 1982 major recurrence, he was in VAMC for more than a month and the adjuctant convinced him to reapply to VA (for more money-we had two small children) and he did.... now VA says in JUNE 1982 that he is again rated at 100%... and so it stayed until his death on August 8, 1990. So you can see that if the 8 year rule had been in effect (instead of the old 10 year rule) there would have been no problem with the DIC claim to begin with. right?

I apologize for the length of this post but maybe it will help someone else; at least the old 38 CFR's are quoted in part for anyone who might need to know them from that era.

judy

[Judy]

How would I find the "specific reduction guidelines" for that time?

Judy

[Judy]

"In reviewing my files, I have determined that I filed the original DIC claim and they acknowledge receipt of it August 30, 1990. The first written communication I have from them is dated NOV 27, 1990 and is a "letter" format and does not state that it is an SOC however the letter does outline the options and remedies available to the claimant. Perhaps this is the way they did it back then? "

By the way Delta, this WAS my original denial letter....states:

"Unfortuanely, our decision is not in your favor." etc etc...

thanks,

Judy

[Berta]

Judy-I would pursue both the Section 1151 claim as well as potential direct SC claim.

I am assuming these were both formally filed with the VA but are distinctly different claims.

It is just amazing when we focus in on the evidence we need- what we can find.

I commend you for doing this work- and I sure regret that any claimant has to dig and dig like this-

I feel the Section 1151 death claim would be the strongest claim however in your case.

I re-opened my husband's 1151 claim that was in the rating board the day he died.

The 1151 regs changed and then I was in the Gardner Moratorium.

WHat I did was to use a copy of the regs that resulted from Gardner:

With respect to claims filed on or after October 1, 1997 (see

"VAOPGCPREC 40-97 (Dec. 31, 1997)), 38 U.S.C.A. § 1151

provides in pertinent part that compensation shall be awarded

for a qualifying additional disability in the same manner as

if such additional disability was service connected. For

purposes of this section, a disability is a qualifying

additional disability if the disability was not the result of

the veteran's willful misconduct and the disability was

caused by hospital care, medical or surgical treatment, or

examination furnished the veteran under any law administered

by the Secretary, and the proximate cause of the disability

was (A) carelessness, negligence, lack of proper skill, error

in judgment, or similar instance of fault on the part of VA

in furnishing the hospital care, medical or surgical

treatment, or examination; or ( an event not reasonably

foreseeable. 38 U.S.C.A. § 1151(a) (West 2002 & Supp. 2007)."

This helped me to stay focused on the actual original 1151 claim he had and then prove by medical evidence, how VA had been negligent and caused his death.

I believe you have a good strong focus on exacly what evidence you need here

and I feel that you have a very strong claim for 1151.

This is the BVA search engine:

http://www.index.va.gov/search/va/bva.html

In the search browser put Houston widow etc-a few key words and try to use the date that the decision came in.

It might take some time but the claim should be there.

Also if you put Section 1151 into the browser for a general search-many 1151 claims will pop up- if you then put 'denied' into the exclude browser you will get the claims they awarded or remanded.

None of this was available when I won my 1151 claim.

All I had was the regs.

A VA doctor agreed with my claim within a few months after I filed it-and sent his report to the RC in Buffalo- that critical report disappeared (of course) for about 10 years.

I used copies of Rod's medical records and highlighted them with magic markers as to specific notations or chem reports, etc, and I broke down his MRI and ECHO as to his heart disease and cerebral trauma.

Your claim is different as to disability and death contributed to by a medication.

In that part of my claim- I went out and bought 4 different kinds of OTC sudafed and used copies of the labels from them to show VA that the sudafed they prescribed to him for 6 years compounded his heart disease and contributd to his death.The label clearly showed that anyone with heart disease or vascular disease should not take sudafed except under medical guidance.

I also fpund much to my astonsihment that there was an Xray of Rods sinuses done by VA that showed his sinuses were claer-yet the VA continued to prescribed this med at a high dosage to him for the next 4-5 years up to his death.

I also had a disk I got from the FDA under the FOIA. It took years to get that disk and the VA never even mentioned it.

There were a few deaths recorded by the FDA directly due to sudafed on this disk but not much more info than that.

The OGC VACO doctors agreed with me (and my evidence was really just basic common sense and the sudafed labels- that Rod was prescribed sudafed in a high dosage, even in spite of the sinus X Ray-"for no clear purpose" and that this VA med had contributed to his HBP (which was severely under medicated by VA),and to his heart disease, and was a contributing factor in his death.

When VA makes a serius medication error, this can sure be the basis for causing or contributing to additional disability or even death.

[Judy]

thank you Berta for taking time to respond here in detail.

I do actually have a DIC claim (first one I filed) and an 1151 claim (they tell me). In my ignorance, blessed or otherwise, I had no clue that I had actually opened two claims but I did.

The one that I am responding to now and awaiting this decision for, is actually the 1151 claim and if you could read Dr. Bash's IMO, it is powerful, really powerful in support of all the medical facts both from the med recs and from his research with opine.

I know for certain that had they given him a cardiac evaluation (when Baylor College of Medicine told them to--May of 1990) AND had they stopped dosing him with incredible amounts of Accutane while ignoring the criticaly high Triglyceride counts... he would not have died. I believe the cause of death was not totally due to arteriosclerotic heart disease but was rather cardiac arrest. I say this because the events of the night he died (at home, with me present) clearly indicate that it was a massive heart attack. Dr. Bash's letter opines on that as well as the cause of it as related to the care/lack of care and improper medicating etc. by VAMC.

I now await THIS decision. If I lose this round.. we will go again. Meanwhile, I will research as you suggested and actually, I did plug in Houston and Widow and whatever else and actually within about 30 minutes I DID find my claim... dated correctly and facts identical. No doubt. I printed it out and added it to my mountain of paperwork.

I did not know to plug in the -denied and find the cases similar that were won so thanks for that information/suggestion. I shall do more research in that way.

This is a powerful case of wrongdoing by the VAMC and VARO... they killed him, outright.