Widows And Widowers Of Ao Vets

[Berta]

to follow up some points that John made as to the new AO presumptives-

this case shows exactly how survivors claims should be handled under the Nehmer Stipulation and Court Order.

I hope this case will be readily searchable in our archives.It sure contains a lot of Nehmer legalise-but

It doesnt mention the nuances of Nehmer as to accrued nor does it mention that ALL AO money has to be paid as accrued - even to the next of kin if the surviving widow or widower of the vet dies with accrued claim- and accrued benefits are awarded.

more info on that at another time-

http://www4.va.gov/vetapp02/files02/0209543.txt

In part:

“The veteran had service in Republic of Vietnam, and is presumed to have been exposed to Agent Orange (AO). He died in August 1984, due to metastatic oat cell cancer of the lung. The appellant is his widow. A claim for DIC was initially filed on December 13, 1984, and was initially denied in a March 1985 rating. Denial of benefits was continued in a May 1985 rating and, ultimately, DIC benefits were denied by a Board decision dated February 11, 1986. In this case, the veteran died on August [redacted], 1984, and claims were filed prior to September 1985, but not finally adjudicated by the Board until February 11, 1986, i.e. after September 1985. The appellant's original claims did not specify a causal connection to Agent Orange, and prior claims were denied without reference to Agent Orange or regulations appertaining to herbicides. In July 1990, the appellant submitted a request to reopen her claim for the cause of the veteran's death on the basis of Agent Orange exposure. Later that month, she was informed by the RO that action on this claim would be deferred until she submitted additional evidence and until the RO received instructions on recently revised legislation pertaining to Agent Orange exposure. She thereafter submitted additional information, including a Decision on Appeal, dated in March 1990, from the Agent Orange Administration, which concluded, resolving doubt in the veteran's favor, found that he was exposed to defoliant spray operations. On June 9, 1994, final regulations amending 38 C.F.R. §§ 3.307 and 3.309 were published. The new regulatory provisions, which allowed presumptive service connection for respiratory cancer developing to the required degree within 30 years after exposure to herbicides, were effective as of the date of final publication. 59 Fed. Reg. 29,723 (June 9, 1994). By a rating decision issued in August 1994, service connection for the cause of the veteran's death was granted, effective June 9, 1994. The appellant contends that, since the veteran died in August [redacted], 1984, she should receive benefits retroactive to the date of his death. In the alternative, she claims entitlement to an effective date of December 13, 1984, the date she filed her claim for DIC benefits. The Board additionally notes that entitlement to an effective date prior to June 9, 1994, for service connection for the cause of the veteran's death was recently denied by a Board decision dated March 5, 1997. At that time, the Board observed that the earlier claims did not specifically claim entitlement to benefits predicated on exposure to AO, and the Board further observes that the record does not reflect that entitlement was denied based on consideration of exposure to AO or associated regulations. However, that March 5, 1997, Board determination was recently vacated. Generally, where, as here, a claimant is granted benefits based on liberalizing legislation, the effective date of the award will be fixed in accordance with the facts found, but not earlier than the effective of the liberalizing law. If the claim is reviewed at the request of the claimant more than one year after the effective date of the liberalizin....etc” Basically she not raise AO issue on her original DIC claim and went through many denials- however due to Nehmer: Because her claim was decided after September 1985 (February 11, 1986, Board denial) and prior to 1994, she is a claimant who sought service connection for a cause of death that VA subsequently determined was associated with herbicide exposure, regardless of whether she had actually raised the issue of exposure in that prior claim. As a member of the class in Nehmer, the guidelines of the Nehmer Stipulation are applicable to her claim. Thus, the proper effective date of her award of DIC is the date her claim was originally filed, on December 13, 1984. In general, the law provides that where DIC is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114(a). However, in this particular case, the Nehmer Stipulation is controlling, which provides for an effective date of December 13, 1984, for the appellant's award of DIC. ORDER An earlier effective date of December 13, 1984, for the award of DIC is granted.

________________

The widow did not state AO on her initial DIC application.

VA denied DIC many many times.

She re-opened July 1990 - her EED is DIC retro back to August 1984

[john999]

So let me understand this: If a vet died today of an AO presumptive disease and his wife filled for DIC with or without specifically stating that this claim was for AO presumptive disease death the widow would get DIC? Also, does the VA have a duty to determine if the death is an AO death, or is that the responsibility of the DIC claimant? As I see it unless the survivor is up on VA law she/he might not even know enough to understand that the death is an AO related death. If the VA can just keep their mouth shut about this then the widow may never know. She might not even know she can file DIC. You just know if the VA can avoid a payout they will do it.

[Berta]

Yes -if VA connects the dots right-but the widow would be asked the cause of death as it relates to SC-so best that she state the cause as AO exposure causing or contributing to the cause of death.

"Also, does the VA have a duty to determine if the death is an AO death, or is that the responsibility of the DIC claimant? "

John - if the death is clearly due to a presumptive disability-such as lets say multiple myeloma or cancer of trachea and these one of these presumptives are on the death certificate listed as contributing to death-it should be a no brainer award they could whip out in a few hours.

But some cancers on death certificates are not on the AO cancer list yet could be due to metasizing of an AO cancer-

say vet has an AO soft tissue cancer yet death certificate attributes death to another form of cancer-

The AO STS cancer could have caused the DC cause of death cancer.VA cant handle connecting the dots on that stuff.The widow has to support the claim with medical evidence to show the link from an AO STS and the cause of death.

"As I see it unless the survivor is up on VA law she/he might not even know enough to understand that the death is an AO related death. If the VA can just keep their mouth shut about this then the widow may never know. She might not even know she can file DIC. You just know if the VA can avoid a payout they will do it."

You are 100% correct on that.

I have to streamline my activities in the veterans community soon-have a lot on my plate-

I intend to start focusing solely on AO issues because these are the claims that VA loves to ignore or manipulate-even with the Nehmer Court Order as they cost lots of Money!

An AO widow takes her chances in even getting a vet rep who fully comprehends the nuances of these claims.

A Blue Water widow I know succeeded because she was as big a pain in the butt as I was regarding our AOevidence.

She would gladly help any AO BWN widows if anyone needs her contact info.

VA knows full well that widows deal with grief and often financial problems when a vet dies.

They know we are vulnerable and thus they treat us like crap.

Same goes for many vet reps too-my rep practically told me I would never win even at the CAVC.

He no longer is a vet rep. <_<

Good thing- otherwise I would go see him with my award letter and tell him where to stick it.

MOPH told w widow of a Nam vet who died of lung cancer she could definitely expect DIC because lung cancer is on the AO presumptive list.

The VA denied.

His form of lung cancer was not a STS cancer.

I dont know what that widow could possibly do now-

but maybe MOPH learned a lesson.

[cowgirl]

Berta thank you for the post, the subject and dates and decisions sure dumbfounded me. This widow and her family have endured the battle for untold numbers of possibly affected veterans and their families. Four vietnam vets are in our family.