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Dic Question . . .


Philip Rogers

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I started this claim many yrs ago for my wife (now ex) and her mother. Her father died of an aneurysm on 1/1/69. He was an ROTC, reserve officer and had served a yr in Korea in 1964-65, or thereabouts and was released from actice duty around 1966, but had reserve duty. Reserve officers are never actually discharged from the military unless they specificall request it. He requested a discharge and was discharged around Oct or Nov 1968. SC for an aneurysm can be attained if it happens within one yr of discharge. When he died they denied his widow SC and DIC.

I started a CUE claim yrs ago but never followed up due to a messy divorce. Anyway, does anyone feel she has a leg to stand on based on his actual discharge date of 1968??? I feel she could, although it could take yrs. Any thoughts would be appreciated.

pr

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Philip- was the aneurysm due to brain thrombosis or brain hemorrhage

from cerebral aneurysm?

And therefore might fit into the 3.309 regs in the hadit link below-

If it did fall into the chronic presumptives, they might have made a CUE in the denial if they didnt consider it that way .

Also Boggs V Peake might help you but I dont know how far back this decision would go,regarding past claims issues. We discussed Boggs here under a recent post Hoppy replied to-

http://caselaw.findlaw.com/us-federal-circuit/1490654.html

See this hadit link as this info might help:

Aneurysm is generic and can really mean other things- such as a major hemmorrhagic stroke could be due to aneurysm causing brain thrombosis but if the claim wasn't not filed as a chronic presumptive, yet the claim could have been clearly construed as a thrombosis brain claim, then maybe the VA erred by not considering the chronic presumptives based on the dates you posted here as to discharge date etc.

If I were you I would go over the claim again with a new look and I assume you were not prejudiced by filing the past CUE claim per any BVA denial on it, and can file another one now.

I hope you have access to all the info you would need from his widow.

I assume he had no SC rating for anything in his lifetime. ?

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Thanks, Berta. It was definitely a ruptured brain aneurysm. He was treated at Mass General, with a new procedure, at the time, a sleeve attached and he was sent home only to have another fatal one, shortly thereafter, in about 6 wks. He had very poor vision and at the time I felt that perhaps the aneurysm was causing pressure on an optic nerve, causing his poor vision. If I can't tie it to that, then I'm looking for how his discharge would effect SC. Since it happened so long after his Korean tour,64-65 or 66, they used his discharge from active duty as the reason for the denial. My arguement there has to do w/the fact that reserve officers are never discharged, unless requested and was hoping someone may have knowledge regarding that issue???

We do have the full autopsy report and his medical records from Mass General, however I haven't reviewed them in 12 yrs or so.

pr

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doesnt the issue of title 10 and title 32 have to be addressed as well? Sounds like he technically only had one year active and the rest reserve. 3.309(a) is one year to a compensable degree after active duty. Jmho

State Mission

When Army National Guard units are not under federal control, the governor is the commander-in-chief of his or her respective state, territory (Guam, Virgin Islands), or commonwealth (Puerto Rico). The President of the United States commands the District of Columbia National Guard, though this command is routinely delegated to the Commanding General of the DC National Guard. Each of the 54 National Guard organizations is supervised by the Adjutant General of the state or territory who also serves as the Director or Commanding General of the state military forces (in DC, only the Commanding General title is used).

When serving under Title 32 Active Duty, Title 32 service is primarily state active duty. This includes the following forms of active service:

o State Active Duty (SAD). The Governor can activate National Guard personnel to “State Active Duty” in response to natural or man-made disasters or Homeland Defense missions. State Active Duty is based on State statute and policy as well as State funds, and the Soldiers and Airmen remain under the command and control of the Governor. A key aspect of this duty status is that the Posse Comitatus Act (PCA) does not apply.

o Title 32 Full-Time National Guard Duty. “Full-time National Guard duty” means training or other duty, other than inactive duty, performed by a member of the National Guard. Title 32 allows the Governor, with the approval of the President or the Secretary of Defense, to order a member to duty for operational HLD activities IAW the United States Code (USC):

The key to state active service is that Federal Law provides the Governor with the ability to place a soldier in a full-time duty status under the command and control of the State but directly funded with Federal dollars. Even though this duty status is authorized by Federal statute, this section is a statutory exception to the Posse Comitatus Act; the Governor may use the Guard in a law enforcement capacity; and the chain of command rests within the State.

In the categories listed above, as well as on active duty for training (ADT) or inactive duty for training (IDT) orders, ARNG units or individuals may be mobilized for non- combat purposes such as the State Partnership Program, humanitarian missions, counterdrug operations, and peacekeeping or peace enforcement missions.

Under state law, the ARNG provides protection of life and property, and preserves peace, order, and public safety. These missions are accomplished through emergency relief support during natural disasters such as floods, earthquakes, and forest fires; search and rescue operations; support to civil authorities; maintenance of vital public services; and counterdrug operations. The ARNG also adds value to local communities through

4

Federal Mission

The Army National Guard’s federal mission is to maintain well-trained, well-equipped units available for prompt mobilization during war and provide assistance during national emergencies (such as natural disasters or civil disturbances). The ARNG’s units (or any Reserve component forces) may be activated in a number of ways as prescribed by public law. Most of the laws for Federal Mission operations are in Title 10 of the U.S. Code.

When serving under Title 10, “active duty” means full-time duty in the active military service of the United States. Title 10 allows the President to “federalize” National Guard forces by ordering them to active duty in their reserve component status or by calling them into Federal service in their militia status. This includes the following forms of active service:

o Voluntary Order to Active Duty. With his or her consent and the consent of the Governor.

o Partial Mobilization. In time of national emergency declared by the President for any unit or any member for not more than 24 consecutive months.

o Presidential Reserve Call Up. When the President determines that it is necessary to augment the active forces for any operational mission for any unit or any member for not more than 270 days.

o Federal Aid for State Governments. Whenever an insurrection occurs in any State against its government, the President may, upon the request of its legislature or of its governor call into Federal service such of the militia of the other States. This is a statutory exception to the Posse Comitatus Act.

o Use of Militia and Armed Forces to Enforce Federal Authority. Whenever the President considers that unlawful obstructions, assemblages, or rebellion make it impracticable to enforce the laws of the United States in any State or Territory, he may call into Federal service such of the militia of any State. This is another statutory exception to Posse Comitatus.

o Interference with State and Federal law. The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy.

o Air and Army National Guard. Air and Army National Guard can specifically be called into Federal service in case of invasion, rebellion, or inability to execute Federal law with active forces.

The National Guard Bureau (NGB), both a staff and operating agency, administers the federal functions of the Army National Guard (ARNG) and the Air National Guard

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“My arguement there has to do w/the fact that reserve officers are never discharged, unless requested and was hoping someone may have knowledge regarding that issue?? “

I have friend who retired after 30 years Naval Reserves some time ago.He told me he had multiple DD 215s for active DTY.

I will try to reach him and ask that.

T8r certainly raised a very good point here. With good and important info.

Do you have his SMRs?

Do they reveal during his periods of active duty, anything , as contributing to death, that might be associated with anything in his SMRs.

I was concerned that my friend didn't seem to get any discharge physical at all when he retired. I guess T8r's info shows why he didnt get one.

Is there an actual DIC denial PR?

Did a rating sheet come with it?

" He was treated at Mass General" Do you have those records?

It might well be that the VA denial was correct in every respect-still- it pays to always give denials another good look.

And definitely the autopsy.

When I reopened my DIC claim for direct DIC instead of 1151 DIC, I realized I had overlooked one word in the 6 page autopsy. I had assumed (like an ass) that the common meaning for the word , was the same as the medical meaning.

I had plenty of evidence and 3 IMos for that claim and didnt need to send them any more evidence but I learned a lesson- never to assume I know what a term means in medical stuff- and to make sure I look it up in a good medical dictionary.

An autopsy can reveal a lot.

.

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Forgot-my retired Navy Reserve Officer friend is on vacation from the VA.... but will return soon---

Maybe this will help someone here at hadit regarding the word I mentioned.

The word was “fibrosis”and it appeared in the medical rhetoric of the autopsied heart slides of my husband's heart in the Medical Examiner's microscopic notes as myocardial fibrosis.

I didnt focus on it and the full term myocardial fibrosis until after Dr. Bash had already prepared his second IMO for the claim .

I had ordered a Cardio opinion too and had not received that yet and would have sent my new info on the myocardial fibrosis to him

This type of fibrosis, I learned from some excellent diabetes sources, is a major marker for diabetes mellitus

My claim was for DMII but my husband had never been diagnosed or treated for it by VA and I couldnt FTCA them again for negligence.

Thus I was trying to prove with the DMII claim for DIC (I already got 1151 DIC) he had something there was no diagnosis or treatment for in VA medical records and it contributed to his death- DMII due to AO.

His exposure to AO was never an issue (Vietnam 65-66)

They awarded the claim before the cardio IMO was even prepared and VA never saw this fibrosis evidence.

I was told by a few reps that this claim was impossible. If one is willing to do the leg work,and often some difficult medical research and get a real doctor's IMO to back u their research and what the med recs reveal then Nothing is really impossible.

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