Dic Claim Question

[cjevans]

I inquired about my DIC claim today. They told me "still Pending - development at rating board - went to the board June 9, 2009...

My question: If my claim is at the "Rating Board" can they still ask me for more information before deciding claim?

Thank You.... B)

[Pete53]

Berta is a great resource on Hadit especially on DIC Claims. She has been not as active lately prolly due to one of the problems we are trying to fix on Hadit.

[akwidow]

Thanks, Pete, I have had conversations here with Berta, and she is a gem. As I self educate and ask questions here, it makes me have more questions. For instance, I was just looking at code 38*.* and failed to find the answer I was looking for. But I will look more.

pertaining to the Hadit problem Berta is trying to fix, what is it? If it is none if my business, please just say so and I will have to stay curious and not be offended.

thanks,

Akwidow

[Pete53]

Berta is not a problem she is a Valued Member. Not a good idea to bring it up on my part.Just a few malcontents who are trying hard to cause disruption on this Board. I just don't understand why anyone would not be able to abide by some rules set down by the owner of this Web Site

Edited October 12, 2009 by Pete53

[Berta]

It has been difficult for me to follow your posts-as many issues have been mentioned (and in different forums)but I have narrowed this all down to 2 main issues you have, I had both types of claims myself and had to continually maintain my focus as well as VA's focus on the evidence and the actual regulations for each claim.

1. 
   1.you seek higher PTSD rating for accrued benefits purposes.
   
   2.You seek service connected death for DIC purposes
   

Accrued benefits depend on

Evidence in the C file or anywhere at all in VA's “possession' at time of death.

38 USCS 5121,38 CFR 3.1000(A) 2009

Accrued benefits depend on an existing and "pending” claim at time of veteran's death.

A pending claim is any claim in which the appeal period has not expired.

NVLSP explains (VBM 2009 edition page 508) that only a “pending” claim or a decision that shows 'entitlement' is the basis for an accrued benefit claim.

Example: my husband had claim for higher PTSD rating and also a Section 1151 claim pending at death.4 hours before he died the VA 800# told him the claims were in the rating board.My accrued claim was based on the PTSD and my DIC claim at that time was based on re-open of his 1151 claim.He will be gone 15 years tomorrow and the VA is working on the additional accrued claim.

My point is my husband had filed NOD on the PTSD claim,sent in more evidence and was in appeals process and at the rating board when he died.These were both "pending" claims.

Is this the same case for your PTSD accrued claim?Did he NOD any denial within a year of the appellate period on the PTSD claim?Is your accrued benefit claim based on a “pending” claim of the veteran?

Service connected death:

I researched for quite some time on medical sites whether or not colon cancer is of a soft tissue sarcoma nature. I found nothing. There is no basis for an Agent Orange claim for DIC.

The BVA had no jurisdiction over the PTSD accrued or any asthma claim.

In the BVA link you gave us:

“The appellant's December 2007 correspondence further raises the issues of entitlement to service connection for asthma, and a higher rating for service-connected post-traumatic stress disorder (PTSD), both presumably for accrued benefits purposes. These claims, however, are not currently before the Board. See 38 C.F.R. § 20.200 (2007). Whereas these claims have not been adjudicated by the RO in the first instance, to include the question of whether they were timely filed pursuant to 38 C.F.R. § 3.1000© (2007), they are referred to the RO for appropriate development and consideration.” For the DIC claim-it was my impression in a prior BVA decision that the BVA had rejected the argument raised that his PTSD had contributed to his colon cancer. The BVA had given no weight at all to the amended death certificate. It will take me more time to find the subsequent BVA decision so please correct me if I am wrong. The remand was to provide proper VCAA notice and to account for the Hupp decision.This was not an unusual type of remand when Hupp became precedent decision regarding widow's claims. Has the VA by now sent you a proper VCAA letter and have you sent to them exactly what evidence they requested in it? I never got a legal VCAA letter when I re-opened my DIC claim. My reps refused to challenge VA for a proper VCAA letter.The BVA considered these legal errors as moot when they awarded because I knew what the VCAA letter should have said and I did what made sense-I got independent medical opinions based on the evidence VA had that supported my new DIC claim. But it all goes back to what was formally claimed for basis of DIC. Additional potential reasons for DIC can also be formally claimed. But each reason needs medical evidence. The BVA remand hinged on PTSD causing and/or contributing to death. One of your recent posts title makes this point again. Have you been able to obtain a medical opinion that incorporates all available medical records and gives a full medical rationale for death due to service on this basis?As I referred to a past BVA decision you received (please correct me if I am wrong) the VA rejected the argument you had presented regarding the PTSD and your husbands cancer.This argument is over. Have you been able to obtain an IMO that provides a different reason for his PTSD causing or contributing to his death? I feel you need to sit down with a service officer or vet rep at MOPH who can maintain the focus of these issues and advise you as to what to do next. The tear gar issue-is there any correlation at all between tear gar and colon cancer? Asthma- any correlation or nexus there to his service and his death? These are tangential issues which may or may not be valid basis for DIC.They would take a lot of research and then a bonafide IMO to come close to DIC award. Still-as I understand this -the claim is for PTSD contributing to death. And I believe the BVA rejected the past argument you made for that. The proper VCAA letter that the remand calls for will show exactly what the VA needs to have from you as evidence to support award for DIC. I am not questioning that your are raising many reasons for DIC-I raised 3 issues myself- one being PTSD contributing to death.and I felt I had ample evidence and could have gotten IMO to support-but instead I focused solely on the main AO issue. DIC claims can get very complex and the focus of the basis and evidence for the formal DIC claim has to be maintained..... with the accrued benefits claim kept distinctly separate but supported with evidence as well that is appropriate solely for the accrued claim.

[akwidow]

having computer problems.

Thanks Berta; As I suspected, an eed for ptsd would only be possible by cue beause they did not consider all the evidence in their files in 2003 and the case is closed.

I did not go after colon cancer as sc in my brief filed after remand as I do realize the colon cancer is not service connected.

The verbage on the AO case is a mixed hat. In some places it says sc for cancer, in others it simply says sc for AO. This leaves the door open for other malidies related to AO sc...doesn't it? in any case it is closed, so a cue is the only option? He had heart and DMII symptoms in his smr's dating back ten years before his death and not mentioned in any soc for AO. I am not seeking AO as cause of death, but it certainly may have contributed with heart problems and MII as secondary matters, but not mentioned on death cert.

I looked back in the file on his earlier claim for sc for asthma soc, and found that they only considered two years of smr's. I found and produced smr's or records they had from private doctors that they gave to me from 1975 through 2003 in my dic case.... the case is closed so nothing can be done except for a cue, correct?

In my brief to AMC I talked about all of these claims...informally, but I did tell them shame on them for not granting his earlier claims as the proof was in their records which I gave to them at that time. My brief's main push was for the DIC claim. Mentioning the PTSD that was denied but present in the vet center counseling records that they got years ago was a way to show them they had the proof and did not consider it, nor give him a C&P in the 80's or the 90's ptsd claims.

Tear gas issue - directly relates to ptsd and how long it has been around and how breathing problems are ptsd problems and health problems are ptsd problems.

Asthma issue - tied to the ptsd (tear gas episode)and directly related to how long ptsd has been around - and how asthma and ptsd are interrelated and emotional attatched to each other. I pointed out at least 8 different ways his ptsd exhibited itself, and provided pictorial and documented medical records which were mostly in his smr's and not mentioned in soc or ssoc.

The closest I came to an imo was statements from three physicians who I gave medical records to review; and a PhD psychologist who treated him in the 90's at the local vet center who said what a mess he was.

Remember, I did all this before I found Hadit...

[akwidow]

still having computer problems, but looking for answers on another computer.