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]

The diagnostic codes and other info you will need are here:

http://www.hadit.com/forums/index.php?showtopic=3322

38 CFR Part 4

My 1151 claim was just like yours.

The veteran-my husband- had documented symptoms of heart disease in his med recs for 6 years. The VA failed to rule out heart disease or diagnose and treat it.atherosclerotic heart disease. It was the immediate cause of his death.

The VA granted me 1151 DIC because they "hastened" his "death due to multiple deviations" in proper medical care by their failure to diagnose and treat his atherosclerotic heart disease-the immediate cause of his death- and admitted to malpracticing many other disabilities he had that "all" contributed to his death. That is what my award letter says.

A

[Judy]

Berta,

I have the VA Award letter (first time around immediately after medical discharge from USAF) dated July 1969 showing VA rated Jim at 100% SC disabled.

Also the VA Award letter re rating him down to 30% and "NO" he did not appeal it, just changed back to AF for compensation.

I have the June 1982 VA Award letter showing that VA now rated him at 100% SC again.

Thanks for the DC code link; I must go study them.

RE: "so it is stated that he was 100% disabled by the VA from June 1982 until the date of death" ;

the 1992 Decision from BVA states "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."

"In order to comply with the duty to assist the appelant mandated under the provisions of 38 U.S.C. 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 VA MC 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 appelant's claim may now be granted. If not, both she and her representative should be provided a supplmental statement of the case and an opportunity to respond. Thereafter, the case should be returned to the Board."

Berta, this is how the SSOC reads and it is dated November 24, 1992:

"April 13, 1992- The Board of Veterans Appeals remanded the appeal for additional development action"

"May 6, 1992 - Received letter from the claimant along with additional hospital records and duplicate service/medical records."

"June 23, 1992 - A request was sent to the Department of Veterans Affairs Medical Center for an independent opinion as to whether or not the veteran's service-connected disability was related to the cause of death."

"October 23, 1992 - Received response from the VAMC regarding cause of death and service-connected disability."

"November 24, 1992 - VA rating decision made following review of VAMC Houston, Texas, treatment records, letter from claimant, duplicate service/hospital records and medical opinion from Dr. A. Montero of the VAMC in Houston, Texas. The claimant allegese that the condition causing the veteran's death was proximately and secondary to service-connected disability and/or treatment for service-connected disability. The supporting medical records do not show a causal relationship between service-connected disability and arteriosclerotic heart disease, the cause of the veteran's death. Although the veteran was issued numerous medications the evidence does not conclusively show that such medications caused or accelerated arteriosclerotic heart disease. Dr. Montero concluded that the service-connected Hodgkin's lymphoma nor use of drug of Adriamycin caused/developed arteriosclerotic heart disease. Decision made to continue denial of service connection for cause of death. Veteran was not service-connected for heart disease. The veteran service-connected disability was not a factor toward his demise. (This willl serve as notice to the claimant of the most recent rating decision).

PERTINENT LAWS, REGULATIONS AND RATING SCHEDULE PROVISIONS:

No change. See prior Statement of the Case dated April 24, 1991

DECISION:

Service connection for cause of death not warranted.

REASONS FOR DECISION:

All of the additional medical evidence was carefully reviewed and failed to show that the condition causing the veteran's death was incurred in service or diagnosed within the presumptive perios. There was no causal relationship found between the veteran's service-connected disability and arteriosclerotic heart disease, the cause of death""""

end of quote.

Sorry this is so lengthy but I wanted to say exactly what the SSOC stated (no more, no less) and in their exact wording as I know that is very important.

Berta, I appreicate your continued input as it is all so knowledgeable.

I filled out the request for consult and emailed that with a statement to Dr. Bash last Monday but I have not heard back from him at all.

Does this sound like 1151 to you Berta? Does it warrant a CUE? Should I get the IMO from Dr. Bash BEFORE trying to reopen the DIC and on what basis would you do it; which one would you go for and in what order?

Thanks so much,

Judy

[Berta]

Judy - I see no CUE there. Tell Dr. Bash you feel there is an 1151 issue. The formal claim can be held off a little longer as 1151 claims have no time limit, until Dr. Bash tells you if he finds evidence of negligence or malpractice.

Send the DIC re-opened claim ASAP!

Raise both SC death and 1151 in the DIC app.

SC death might be the much stronger claim here.

Your EED -of any DIC retro will be when you file the DIC claim if it is awarded -I am not sure what EED you would get if you succeed under 1151.This is the only DIC reg I have:

"Once a claim has been filed, the effective date of an award

of DIC is the first day of the month in which the veteran's

death occurred if a claim is received within one year after

the date of death; otherwise, the effective date will be the

date of VA receipt of the claim. 38 U.S.C.A. § 5110(a), (d);

38 C.F.R. § 3.400©. Payment of monetary benefits are to

commence on the first of the month following the effective

date of the award. 38 U.S.C.A. § 5111; 38 C.F.R. § 3.31."

If the first DIC claim was filed within one year after his death and you succeed with a new DIC claim-there is a possibility they could go back to date of his death for DIC EED.

But I am not really sure on that - there are too many things here to consider-

It would help to study how the BVA decided other similiar claims.You can access these desicions at the BVA web site.

The most important thing is to re-open the DIC claim and to get Dr. Bash's opinion as to whether the vets SC caused or contributed to his death-

or were there medical VA errors that contributed to his death or

did the veteran have medical evidence that should have awarded 100 % P & T for two years r more prior to the EED they gave him on that- which would fulfill the 1318 criteria.

Feel free to even give Craig my printouts here as to my assessment of this claim-tell him these are from Berta Simmons in Cohocton New York-

Direct SC death is the strongest point-in my opinion- with the possibility of 1318 DIC entitlement and/or Section 1151 entitlement.Based on what Dr. Bash's review of the entire clinical record finds.

The re-opened claim must be filed ASAP in case that re-open date is the only EED date they will give you.

Edited October 12, 2007 by Berta

[Judy]

I should reopen the claim before hearing from Dr Bash? Reopen on the grounds of "new and material evidence"? Also state the reason for the 1151? Do I file a separate claim for 1151 (at this time?) and if so, where do I send that? Are there forms for either of these or just send a letter with all pertinent data (case numbers, dates, etc)?

How and what do I send to reopen the DIC claim? Where do I send it and to whom?

I will inform Dr Bash of your communications to me regarding the case, when I do hear from him.

Judy

[Berta]

Just send the VARO a letter that states you are re-opening your past DIC claim with new and material evidence, that will be provided in separate mailing.Put your c file number on it.Tell them you are obtaining an independent medical opinion as new and material evidence and as soon as you get it you will send it to them.Tell them you are also enclosing some evidence (and enclose whatever you can that you mentioned here from the med recs -would help this claim)

State you are requssting direct service connected death of your husband and have enclosed a separate claim for Sec 1151 death.Tell them the direct service connected death is your main issue but you also are rasing the potential of both DIC under 38 USC 1151 and also under the regs in 38 USC under Section 1318 as you intend to support an EED for the veteran's 100% SC P & T that would extend his EED of 100% P & T for additional years, and that could potentially render you eligible for entitlement to DIC by virtue of this additional avenue of approach for direct service connection of his death.Tell them you are enclosing new and material evidence and attach whatever you have to support this claim that they never considered before.

Tell them you want a VCAA letter appropriate to all of the above.

Enclose the Section 1151 claims thus:

This is a claim for DIC benefits under auspices of Section 1151,38 USC. I believe my husband's VA medical records will reveal that his cause of death was due to negligent care by the Veterans Administration.

(Then elaborate a little and attach anything from his VA med recs that supports that statement)

Send it in and get a tracking slip- you might want to discuss all this with a vet rep-if you have one first.

Then upon receipt of Dr. Bash's IMO you will be able to either withdraw the weakest claims or maybe support them all.Send copy of his opinion to the VA and use a 21-4138 form from the VA web site as a cover letter.

It will take time for the VA to even read your claims so best to get them filed and by the time they review the claims you should have the IMOs from Dr. Bash in the c file already to support whatever claims Dr. Bash could support.I have no idea what his medical opinion will be.

The average time for a DIC claim to be resolved from what I have seen is less than a year with prime facie evidence- meaning a death certificate that states the veteran's SC disability contributed or caused death- but most widow's claims can take 3 or more years for resolve unless the RO gets probative competent medical evidence much sooner than that.I have present claim for direct SC death and it has been with VARO for 4 1/2 years.

I have two IMOs from Dr. Bash.(2004 and 2006)They (RO)are finally reading them.

Be prepared for a long wait and make sure that they send you a VCAA letter and election form.That comes about 4-6 months after filing a claim.Respond to it as appropriate when you get it.

Do you have a vet rep already- if so- I am doing his/her job here-give him/her the post print outs and ask him/her to support you on all this or offer any other advise as to filing these claims.

Edited October 12, 2007 by Berta

[Judy]

Berta,

I am wondering if this is a re-open or? (too late to appeal?)

What does it mean that the BVA wrote:

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

Thereafter, the case should be returned to the Board."

**How do I know that the RO did or did not obtain the additional records? How do I know if the

case was returned to the Board?**

If RO did NOT obtain additional records and/or if the case was NOT returned to the Board, does that constitute CUE?

Judy