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Widow's Cue Awarded


Berta
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Question

Leona T. Benoit # 07-2499

DIC from 1984-to 1999

The widow's prior CUE claim had failed.

She was granted DIC but only back to 1999.

It appears that she was denied and did not appeal the initial denial of her DIC and that decision became final.

The VA had said that her PTSD husband's smoking habits had caused his demise due to heart disease and died on that basis.She was finally award DIC however in 1999 when she re-opened her claim.

That left the 1984 decision which was obviously erroneous.

Many say that Cue is only a one shot deal but that is an arbitrary statement-

her first CUE was dismissed without prejudice and she filed another CUE and won it fairly recently (2008)

DIC from 1984 to 1999.

This case shows two things- how medical ecvidence factors into CUE claims but how they still depend on Legal error and also it shows that

this claim could easily have never even been pursued by the widow-

I wonder if she even had a vet rep early on who supported the CUE claim.

The VA would have kept 15 years of retro DIC if this widow had not diligently pursued this claim.

It is sheer logic and common sense that if VA finds SC death in 1999,then the vet had to have had a SC death in 1984!

Common sense and logic are not products of the VA- they are products of diligence when any widow or veteran knows they received an erroneous denial based on clear and unmistakable error.

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Berta, Did you assist her during the later part of her claim processes?

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No--I dont know this woman----

I have a claim at the RO for PTSD contributing to my husband's heart disease along with the main claim-AO contributing to death-and was looking over decisions for widows with similiar claims-at the CAVC and found this CUE.

In the only VCAA letter I ever got that made sense, the RO last year asked me for basis for the PTSD to heart claim.After paying 4,000 for 2 IMOs for the AO claim,I didnt consider getting an IMO for this claim-yet- as the AO claim should be rersolvbed first making this claim moot.

I responded to the VCAA letter and asked the VA to consider this established legal and medical fact: the VA admitted to causing the veteran's death due to malpractice.(FTCA/1151 awards)

My argument was that PTSD is what brought Rod to the VA in the first place and his SC PTSD made him eligible for the VA medical care he got.

Therefore the veteran's PTSD contributed directly to his death.

It will be interesting to see how they handle that claim.

My point here is that in this widow's case-she would have lost her DIC but she didnt buy what they were selling -

and she made a collateral attack on the old DIC denial and was successful.

Widows, just like veteran claimants must use any potential way to succeed- and raise as many reasons for SC death as a vet should raise for SC disability.

In this case the VA had originally blamed the veteran's smoking as causing his heart disease-

but she somehow proved that he smoked to alleviate the anxiety of his SC PTSD.

(Allen V. Principi.)

And then the VA awarded the DIC.

Widows often find that not only the VA but their POAs do not care enough to consider all the factors in their DIC claims.

In 1996 the VA got a socalled "expert" to state that my husband died possibly due to a fatal encounter with cocaine.

Ludicrous.

There was absolutely no basis at all for that statement. I had sent VA a 7 page autopsy with complete toxicology because Rod was an organ donor.Which they managed to lose a lot.

The DAV at the time offered no suggestion at all to combat this ridiculous denial nor did they even seem to get the significance of the autopsy.Obviously after another long battle, I proved them wrong.

This widow's CUE is an excellent example of a CUE claim.

It doesnt matter that she is a widow-

The criteria for CUE is the same for all of us.

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Just to add for anyone out there wondering what a CUE is- (we get many newbys these days)

I will use my own awarded CUE as example-

In 1998 I received a RO denial of a claim regarding my FTCA offset.

I appealled to BVA and received a denial at the BVA.

Then I bought what they were selling-and didnt appeal the BVA denial.

In 2003 I re-opened my DIC claim for direct SC death.

When the RO read the part about my FTCA settlement they had to get the RC to verify the veterans was dead due to VA health care.

The RC (Regonal COunsel) read the claim and saw my old CUE in the C file.

I got over 27,000 bucks retro due to the offset error.The RC awarded the CUE.

1. I had a final and unappealed decision.

2.I had found a legal error that the VA had made with evidence (copy of the actual settlement I signed with the US of A)

3.I had a manifested and altered outcome due to their legal error. $40,000*

* The first check I got was wrong and they sent me the right amount when I questioned their math.

I wonder how many CUEs the VA commits that no one ever challenges at all.

A valid CUE denotes a legal error that the VA saves money on unless the vet challenges it.

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