diabetes One More Question On Death Of Veteran While Claim At Bva

[derenick52]

HEY ALL,THANKS FOR THE INPUT ON MY POST THE OTHER DAY ON INFO FOR WIDOW-SUBSTITUTION,ETC,SO HIS CLAIM AT BVA IS FOR DIABETES,HE DIED FROM LUNG CANCER ANOTHER AGENT ORANGE MEDICAL CONDITION WHICH WAS JUST DIAGNOSED A WEEK BEFORE HIS DEATH-DOES HIS WIDOW HAVE ANY RECOURSE ON THE LUNG CANCER ISSUE OR IS IT MUTE AS HE HAS PASSED ON-? THANKS TO ALL YOUR HEROES

[Berta]

I just want to clarify this:

“Hey Berta,thanks so much for the link to Bva decision,this is same situation as my friends claim,will have his Widow submit this decision as evidence,”

The VA will not consider that BVA decision as evidence in support of her claim

She needs to find out what ship he was on and see if it is on the VA AO ship's list (unless he was on this very same ship and he was at Danang same time period with proof from his 201 file,)and then the decision might have some value as evidence.She still has to prove his ship docked at Danang. Was the ship on the VA AO ships list that I posted a link to here?

“SO-JUST CHECKING If I understand Her situation,

if she Wins Diabetes claim-she is Entitled to accured benefits till the time of his death-”

Yes, if he had a pending claim for DMII (diabetes mellitus) and the medical evidence at time of death established a ratable condition, then, with proof of AO exposure, she should receive accrued benefits, if the application for accrued is received within one year after the veteran's death.

Did he have a vet rep for the DMII claim?

Were any complications of diabetes spelled out in it clearly as secondary conditions that warranted service connection, on that basis, if and when the DMII is service connected??

“THEN If his Death certificate states Lung cancer as cause of death-she can file for Survivors pension,waiting for a copy of his death certificate in next few days,thanks soo much for the help “

'IF” ?? ?

When I read this post :

“HE DIED FROM LUNG CANCER ANOTHER AGENT ORANGE MEDICAL COND “

I thought Lung Cancer was already on the death certificate or at least considered by the doctor to be a cause of death.

The wording of the death certificate and the ultimate autopsy results will be critical to this claim.

It is best to wait until she has the actual death certificate to begin to file for DIC.

I based my 1151 suggestions on the statement above in the past post you made, thinking that he died from lung cancer, yet had recently been diagnosed with it and obviously that didnt make sense and it sounded like a major medical error.

Please disregard my statements as to any potential 1151/FTCA issue ,until we know what the cause of death actually was, to include any contributing conditions that are listed on the death certificate.

Edited June 1, 2012 by Berta

[derenick52]

Hey Berta,We have the deck log that we DOCKED TO PIER To load equipment at Da Nang,Out ship is the the Va agent Orange list,I Recently discovered photo of equipment we loaded,including Brown water navy craft,His claim is same situation as Bva decision you linked me too,thanks,You are great!

[Berta]

Good, that is a big hurdle that has been overcome!

I assume you mean by "we' that maybe you served with this vet on the same ship? If so your buddy statement could be a corroborating account but as long as his ship is on the list, that might not even be needed and this seems to be very good news for his diabetes claim.

I know BWN vets who highlighted their ship's name with magic marker on a print out of the VA's list and sent the list to VA to prove their exposure.

His claim might not have even been transferred to the BVA yet and might still be at the RO.

She needs to contact the vet rep who held his POA or get a vet rep herself to see how this Ship's list evidence should be presented to the VA for an accrued benefits claim.

No point in sending it now as there is no pending claim as the widow has not become the claimant and the initial claimant has died.

The accrued claim will be part of the formal 21-534 claim and this would be good evidence to send to the VA with that application.

I dont see any point in trying to file for DIC or accrued until the cause of death has been documented on the death certificate.

It is possible that if he didnt have lung cancer, then maybe other secondary conditions to the DMII caused his death.

My point- need to use my own claim, as example-

my husband died suddenly from what appeared at first to be a NSC death.

But I proved he died from VA medical malpractice.(I was awarded DIC under Section 1151."as if" SC.

The death certificate and autopsy revealed ischemic disease of heart and brain.

I then proved he also had been misdiagnosed due to DMII ,contributing to his conditions at death.

I was then awarded direct SC DIC due to AO -Far better then 1151 DIC.

Then when the new AO regs came out I was awarded for direct SC death due to the IHD but that was moot as I got DIC already but won an accrued IHD benefit award and also I won a CUE claim for SMC accrued.

My point is that diabetes is the horrible gift that sometimes keeps on giving.I studied Endocrinology to prove to VA they had misdiagnosed diabetes in addition to the errors I proved in the FTCA/1151 issues.

Atherosclerotic (Ischemic) Heart disease, visual problems, skin problems, Transcient ischemic attacks and full blown strokes, candidiasis infections, UTIs, circulation problems that could lead to amputations, the list of potential secondary conditions from DMII is quite long.

Many of these secondary conditions, two of which are listed on my husband's death certificate, and othrs noted in his A med recs, (but the DMII wasnt), can cause or contribute to death and the VA must consider documented medical evidence of these conditions, they also must be claimed as secondarIEs, and then they also must be proven to have developed directly from the DMII,with no other known medical etiology.

For my initial claims under 1151/FTCA I had no IMO. I was able to provide indIsputable lay medical evidence because I studied Cardiology and neurology and the VA had to accept my charges as the medical evidence also supported my conclusions.At some point I was able to deal directly with a top cardio VA team in DC as well as the OGC.

They didnt like it that I called them directly but sometimes it pays to be very aggressive with the VA.

However I dont recommend anyone else doing that unless they have studied FTCA case law and also feel they are up to speed enough medically to deal with VA doctors.

But for my DMII claim, although I studied endocrinology and also knocked down a VA Endocrinology opinion, I got 3 IMOs for that claim that fully supported my contentions and my lay medical evidence. Although I had already proved malpractice, I was proving additional malpractice which, as far as I know had never been done before, after a FTCA award and settlement with VA had already taken place. And of course the VA gave me a lot of crap but the BVA awarded that claim.

So it would take an IMO in this case if this veteran did not have DMII listed as contributing on the death certificate, (in the event he did not have lung cancer) to prove that any contributing conditions to death could be medically associated with his DMII.

This widow I imagine is already dealing with a lot. Probably the last thing on her mind is DIC.

Once the death certificate is available to her, a good vet rep can assess the best way her accrued benefits and possible DIC claim could be prepared.

Before I filed for DIC I had my husband's medical records from the VA and offered support for my claim with some of them.

When the autopsy was done (it took many months to complete) it was probative evidence that I sent to the VA right away.

For the accrued claim I had to find and prepare a lot of evidence . It was for a higher rating of my husband's 30% for PTSD.

They awarded that claim a little over 2 years later at 100% P & T .

The initial DIC claim I had didnt go to the BVA but took over 3 years.

The widow here could be eligible for Widows SSA benefits and ths is something she should look into.

She does need to consider the potential expense of an IMO too, if the death certificate (and autopsy)does not reveal an obvious service connected death.

If the claim has been docketed then they (BVA) need to have the Ship info- if not the VARO should get it.

If he had a vet rep handling the DII claim, they shuld be able to help her with the DIC and accrued claim.

Edited June 1, 2012 by Berta

[derenick52]

HEY ALL,SO MY FRIENDS WIDOW RECEIVED THE AUTOPSY REPORT LAST WEEK-THE LUNG CANCER WAS FROM MESOTHELIOMA FROM ASBESTOS EXPOSURE ABOARD SHIP,WAS A MACHINIST MATE,SHE IS HIRING A ATTORNEY FOR A LAWSUIT ON THE TRUST FUND SET UP FOR THEM-QUESTION-CAN SHE FILE FOR DIC IN REGARDS TO THIS CAUSE OF DEATH-SHE IS FILING THE FORM FOR SUBSTITUTION FOR THE AGENT ORANGE CLAIM AT BVA,ANY ADVICE APPRECIATED,THANKS,GEORGE

[broncovet]

Berta

As usual, you give great advice...you are the resident expert on DIC/death/accrued benefits.

However, I do question one statement you made:

"I dont see any point in trying to file for DIC or accrued until the cause of death has been documented on the death certificate."

Again, I dont know near as much as you do on DIC, but I never suggest Vets wait for all their evidence to be in to file. I say file, and gather the evidence later, for several reasons:

1. It preserves your effective date, and could result in more retro.

2. It gives the VA a good chance to step on their own necktie. Let me explain. Once the VARO makes a decision, ONLY the Veteran (or his widow, in this case) can appeal it. (The VA does not initiate appeal on its own RO decision) The VA could easily gloss over whether or not the cause of death was SC or not and deny you based on something else and not mention anything in the Reasons and bases about whether or not the Veteran died of a SC condition. In this instance, the VA cant later say...oh we denied it because the death was not SC also, we just did not put that in the Reasons and bases.

You see, the VA is supposed to be accurate in its reasons and bases, and the court would presume that the criteria were met EXCEPT those in the reasons and bases. When appealing, I always focus on the "reasons and bases" because the VA has essentially admitted that I otherwise qualify and meet the criteria EXCEPT those reasons stated. I learned not to assume the VA will catch everthing...those RO decisions are often terrible. The rater often looks through and finds something glaring..."Oh there it is..we will deny him on that", and then not even read the rest of the application. There could be 3 reasons the VA could deny, but they only list one. If the Veteran or his widow can overcome the reason for denial listed in the R and B, then they cant use the other 2 reasons to deny later.

[Berta]

Broncovet – to clarify this:

"I dont see any point in trying to file for DIC or accrued until the cause of death has been documented on the death certificate."

I suggested to wait for this legal document before filing or DIC

(and most DIC widows/widowers don't file right away- as DIC is the last thing on their mind,)

because the “cause ' of death on the death certificate is what determines the basis for the claim along with the "contributing factors" the ME or Coroner has listed.

A survivor could easily forget to put on a 534 form a 'contributing factor' listed on a death certificate that warrants a SC death if the primary cause was due to a NSC disability.

I wasted a lot of time recently (I get phone calls often when local vets die)

because a 'widow' was trying to tell me the reason her husband died.

The death certificate however was nothing like what she described the doctor's had told her ..

I suggested she come to hadit then I found out she was not the legal surviving spouse anyhow.

VA will hold any survivor to what they actually state was “cause of death' on the 21-534 form and VA won't begin to even process a 21-534 without a death certificate and other legal papers.(marriage license etc) even if they already have them due a past claim from the veteran.

They will not infer any contributing factors that support the claim.The claimant has to raise those issues.

For example,

when my husband died, the Coroner said his death was due to a massive heart attack occurring in minutes (Sudden Death syndrome).

He had no heart disease I knew of and even a VA doctor,,after reading his ECHO results, had told me he had no heart disease

When the death certificate was formally prepared, it said far more than heart attack under both cause of death and under 'contributing factors'.

Then the autopsy which took many months added by far more to the cause and contributing factors of his death.

When I received the raised seal Death Certificate and recalled some questions the coroner had asked me, I then re-opened my husband's 1151 claim,in the rating board the morning he died, which was pending at Buffalo VARO.

(and filed under FTCA for wrongful death)

There were no substitution regs then and I had to start from his actual 1151 claim and then prove it as well as the FTCA case

Some survivors dont even know there could have been a malpracticed issue until they see the actual cause of death on a death certificate.

My husband's basis for his 1151 was really for better PTSD care. The way he worded that claim however, said he believed his PTSD had been malpracticed on and the VA might well have malpracticed on his CVA and even heart disease he didn't know he had or could get because of his PTSD.

I did not know how absolutely right he was, until I got a copy of the death certificate ,as to the way it was worded, and then prepared both the 21-534 and also requested his death be SCed in a formal 1151 claim,based on his original 1151 claim.

I reopened my claim in 2003 at my daughter's insistence, based solely on what the Coroner had asked me.

It took me many weeks of medical research to support the claim adequately with the documented medical records.

My re open was for an AO death based on DMII, which never appeared once in any VA med recs as diagnosis or treatment. I also got 3 IMOs that agreed with my claim.

It was awarded in 2009.

In January 2012 the VA awarded again for the "contributing factors" on the death certificate and the immediate cause of death was awarded again under AO IHD.

I proved death due to AO IHD, 2012

death due to AO DMII and 2009

death due to VA medical care. 1151 1998

FTCA settlement for death by VA 1997

All of above were contingent on the wording of the death certificate and the detailed 6 page autopsy.

I again suggest to every vet here- make sure your family knows that you don't mind being autopsied at your death.It wont hurt a bit.

My husband was an organ donor and this is why he was autopsied.

But I never dreamed ,when the organ bank called to to arrange this, a few hours after he died, how critical and important that autopsy would be for my claims.

Derenick asked:

“QUESTION-CAN SHE FILE FOR DIC IN REGARDS TO THIS CAUSE OF DEATH-SHE IS FILING THE FORM FOR SUBSTITUTION FOR THE AGENT ORANGE CLAIM AT BVA,ANY ADVICE APPRECIATED,THANKS,GEORGE “

Yes she should absolutely file or service connected due to asbestos exposure in service.

I suggest she get a vet rep ASAP to see if te deceased veteran's claim has been formally transfrred to the BVA yet, and what steps she should take as far as the substitution aspect.

Obviously the 21-534 form will cover accrued benefits and there is a place on the form where this can be noted.

Under a hadit search the VA Navy PIES list should pop up and these are the Navy occupations that DOD has deemed as to exposure values in service to asbestos via Navy MOS.

Did the RO deny this claim during the veterans lifetime regarding asbestos and is that what the BVA case is for?

Edited July 10, 2012 by Berta