Champva And Survivors

[john999]

What happens when the ChampVA sponsor dies and before the surviving spouse has their DIC approved? Does ChampVA stop until the survivor gets their DIC claim approved? If my wife were to be on Medicare as primary and ChampVA as the secondary medigap coverage and I croak then what? I know the money from my compensation stops, but do all the other benefits to the spouse stop as well until she/he has DIC approved? My wife is entitled to three survivor pensions so to speak. She would be eligible for my SSA, my Civil Service survivor pension and to DIC. The thing is how long does it take for all this to kick in after she applies? Not many survivors just snap out of it in a week and then claim their life insurance and all their survivor pensions. They have to bury their vet and deal with all that plus they might be in grief for a while. The way I see it the survivor can't afford to grieve if they want to keep paying their bills. Now I have some of this taken care of but the insurance thing worries me. One thing I do know is that the vet and the spouse need an emergency fund that will carry them at least 6 months while all this stuff gets worked out. I have the disabled vet insurance which is enough to bury me, but do undertakers extend credit based on the VA insurance? Even if a vet has the grave and headstone paid for by the VA the service and all the extras can come out to $5000-6000. I did take a course in financial planning but I did not get to that specific section I guess. My wife always avoids my talking about what she will have to do if I leave this world before her. She says " John, you worry too much!" Yeah, I have been dealing with the VA for 40 odd years, so I do worry. I think it would behoove her to get one of those medicare advantage plans so she would not be high and dry if I croak and she has to wait for DIC claim.

John

[free_spirit_etc]

Free Spirit,

Thank you for your thoughts and for catching the VA's wording change from "probable" to "possible".

Always pay attention to things they fail to mention and places they twist the words around. This often can give you information on where to focus to win the claim. Since a probable diagnosis is a "most likely" diagnosis, they morphed it into "possible" making it easier to deny the claim.

In my husband's claim - we presented two theories of entitlement:

1. That his cancer started while he was in service.

2. That his in service asbestos exposure contributed to the development of his lung cancer.

The very first letter from the VA acknowledged the claim was for lung cancer, to include from asbestos exposure. After that they morphed it into "lung cancer due to asbestos exposure." Though that was a slight change, it effectively allowed them to side step the issue of whether my husband's cancer started in service because they pretended my husband's claim was only about the asbestos exposure.

I believe that if they could have relied on a VA doctor to say that it was more likely than not that the cancer did not start in service they would have acknowledged that part of the claim. Since it would be hard for a doctor to state that, based on the medical evidence, they just twisted the claim and ignored that part.

Even when they finally acknowledged that the claim included our assertion that the cancer began in service (after my husband's death), and they pretended to address the issue, the VA doctor still did not address the issue. He did not offer an opinion as to when the cancer most likely started. He merely stated that most of the treatment in my husband's SMRs was for viral respiratory conditions, and it was less likely than not that those were early manifestations of lung cancer.

Luckily, the BVA did not play into that game, and they afforded the VA medical opinions less probative weight, specifically stating:

"In consideration of the opinions of the two private oncologists, both of whom opined that the Veteran's fatal lung cancer "certainly" began in service, the Board has determined that the Veteran's lung cancer likely began on active duty and that service connection for the cause of his death is thus warranted. In so finding, the Board accepts the private oncologists' opinions as being the most probative medical evidence on the subject, as such were based on a review of all historical records, and contain detailed rationale for the medical conclusions. See Boggs v. West, 11 Vet. App. 334 (1998). Given the depth of the examination reports, and the fact that the opinions were based on a review of the applicable record, the Board finds such opinions are probative and material to the Appellant's claim. See Owens v. Brown, 7 Vet. App. 429 (1995). The March 2002 VA negative etiological opinion is entitled to less probative weight, as it does not specifically address whether lung cancer had its onset in service. Similarly, the October 2007 VA opinion is entitled to less probative weight, as it concentrated on whether the Veteran's in-service respiratory complaints were an early manifestation of his lung cancer and not the growth rate of the disease and whether the asymptomatic tumor was present in service. To the contrary, both private oncologists reviewed the record and cited extensively to their own expertise in the field as well as the current state of medical knowledge in reasoning that the Veteran's lung cancer likely began while he was in active duty. Thus, in light of the opinions of the private oncologists, which both cite to applicable studies and contain supporting rationale, the Board finds that the Veteran's lung cancer likely began while he was on active duty, and entitlement to service connection for the cause of the Veteran's death is established."

So they got caught in their own side-step.

I realize your claim is not the same as mine, and the theories of entitlement are a bit different. However, it is my firm belief that you need to pay special attention to what the VA is ignoring, leaving out, side-stepping, and twisting around. Those areas will give you the keys to winning the claim.

If the VA could easily deny your claim with the diagnosis of probable lung cancer, they most likely would not have needed to change the word to possible. If they have to twist the claim and change the diagnosis in order to deny the claim, then that is a good indication that the actual untwisted claim has merit.

Edited January 28, 2015 by free_spirit_etc

[free_spirit_etc]

Atomic Widow -- The previous post includes a portion of my actual BVA decision. That is why I tell you to hang in there and not give up.

Berta, and some of the hadit folks offered me a lot of support and encouragement in my claim. But many people told me I would not win. In fact, I even got so tired of the VA "stuff" I tried to find an attorney to represent me. The attorney I contacted told me that if my husband's cancer was not diagnosed in service, and he didn't have boots on the ground in Vietnam, that I was not entitled to benefits. Notice, they didn't tell me the claim might be hard to win; they told me I was not "entitled."

The law about post-service diagnosis of disease, and my research of BVA decisions told me different. (And keep in mind my husband didn't even file a claim for his lung cancer until a year after his diagnosis when the treating physician told him it had started long before he retired from the service.)

But even the VSO that stepped in to represent me at the BVA hearing (who I subsequently fired) called my IMOs (that helped me win the claim) "theories written by people who had not seen my husband." ( see )He told me the judge didn't have to accept them, and I actually had to argue with the guy as to whether I could present them at the hearing or not.

But I hung in there -- and I honored my husband by finishing the fight he had started. Well.. actually.. my husband didn't "start" the fight. He filed a legitimate claim with the VA. The VA twisted things around and started the actual fight.

Edited January 28, 2015 by free_spirit_etc

[Berta]

Sometimes I think widows of vets could write a book on how piss poor vet reps not only discourage them from even filing a claim, but (in my case) my former POAs worked against me, because they didnt really know anything about DIC.

(They got the same training I did from NVLSP and it covers DIC)

Free spirit said:

. "But many people told me I would not win. In fact, I even got so tired of the VA "stuff" I tried to find an attorney to represent me. The attorney I contacted told me that if my husband's cancer was not diagnosed in service, and he didn't have boots on the ground in Vietnam, that I was not entitled to benefits. Notice, they didn't tell me the claim might be hard to win; they told me I was not "entitled."

20 NY lawyers told me I could never sue the VA, and/or never win my FTCA wrongful death case.

The DAV told me my1151 claim didn't have a chance.,nor did my accrued claim.

And a state vet org rep said my DMII AO claim would never succeed.

And an SSDI lawyer told me my husband would never win his reconsideration request.

They were ALL wrong.

I hope all vets here are gong to make sure their spouses know how to use the internet these days and how to use our web site , when they die. And I cannot stress enough the importance of an autopsy.

Also Free spirit said:

"If they have to twist the claim and change the diagnosis in order to deny the claim, then that is a good indication that the actual untwisted claim has merit." LOL, that is one of their underhanded tactics. And sometimes they will blatantly lie.

The harder they fought me, the more confident I was that I would succeed.

[free_spirit_etc]

Berta,

One thing that really gets me is that they not only won't help and they tell you that you don't have a chance -- they treat you like you are stupid.

Everyone kept telling me the cancer needed to be listed in my husband's SMRs, or he needed boots on the ground -- and they kept treating me as if I were stupid to think differently.

But taking the information my husband's doctor gave us about the doubling time of his kind of cancer, I started researching. When I typed doubling time and cancer into the Search Decisions box at the BVA site, I kept finding "claim granted" " on many of the decisions. Most of the claims based on that theory, that had solid IMOs, were granted. The claims that were denied, most often did not have IMOs or had very weak, speculative ones. However, a few claims were granted because the VA doctor had the honesty to say, "Yes. It most likely started in service."

But still, most people kept trying to tell me I didn't have a case. They could not get out their "It has to be presumptive or diagnosed in service" mind set despite the fact that VA law specifically addresses initial post-service diagnosis of disease.

Even at the hearing -- the guy working at the desk asked why I didn't have a VSO. I told him because everyone kept telling me I didn't have a case, despite the fact I had a very strong case. Then I got the "Poor thing. She doesn't even realize she doesn't have a case..." type response. Then he proceeded to get me a VSO to purportedly "help," though the only thing the VSO did was treated me like I was stupid and had no idea what I was talking about.

I am glad I had a good judge. I finally found someone in the system that understood exactly what I was talking about and at least treated me with respect.

The worst part wasn't even having to fight the claim with the faction of the VA that works to twist your claim around and so they can continually deny it (because they aren't even considering the actual claim as it stands). The worst part was being treated with such utter disrespect by those who pretend they are there to help.

The way the VA treated me throughout the years of pretending to adjudicate my claim inspired me to hang in there and not give up the fight. If they were going to deny it, I was bound and determined they would face it head-on and deny it on its actual merits, instead of with their word games of twisting everything around so they could pretend they were actually adjudicating the claim. But the way the way the folks that are supposed to be helping the veterans with their claims treated me reduced me to tears several times.

[free_spirit_etc]

Also Free spirit said:

"If they have to twist the claim and change the diagnosis in order to deny the claim, then that is a good indication that the actual untwisted claim has merit." LOL, that is one of their underhanded tactics. And sometimes they will blatantly lie.

The harder they fought me, the more confident I was that I would succeed.

And I think this is one thing Bob needs to address - the underhanded way they twist things around in order to deny a claim. If the VA has to twist the facts and lie in order to deny the claim - the claim should have been granted.

If a claim does not have merit - the VA can deny it without twisting the facts and lying.

[free_spirit_etc]

Anyway -- Atomic Widow --

I think the word "probable" will be your key issue to overcome. I have done a little research on the BVA site and found a couple of claims that were denied because the BVA said the individual had a probable diagnosis, and not a definitive one. And I have seen remands where the VA was asking for an opinion on the probable diagnosis.

I think you actually can win your claim, but it might not be a walk-in; especially if you are working with an RO that is changing the word probable to possible. It shows intent to deny the claim regardless of whether the claim has merit.

I know you were asking about Champva benefits, so I know you would like to the get the claim granted sooner rather than later.

In my own case, I stopped expecting the claim to be granted at the RO level. I just started preparing for the BVA. I didn't even submit my IMOs to the RO to consider. When I submitted them, I waived the right to have the RO review them. For one thing, I didn't think the chances were great that they would approve the claim anyway -- and then I would have to wait in line all over again for the review and the hearing. For another thing, I didn't trust that they wouldn't find a doctor who would once again pretend to address the issue, while not addressing it, but write a more extensive opinion for them to deny the claim.

So I just let them play their hand first and waited. I was done arguing at that level. They played their high card -- and then I went to the BVA a played my hand. My full house beat their high card. I had strong IMOs that actually discussed the evidence and addressed the issue, and they only had hastily written, weak medical opinions that didn't even address the issue at point.

In your case, you might have a chance at the RO. You definitely need to mention in your appeal that the RO changed the word probable to possible. But I think you also need to research claims with probable diagnoses. I can help some in my spare time (which I seem to have little of).

What I see as positive in your case is your mention that the medical records list both cancers as primary sites. I think that is strong because it isn't like someone coming in after the fact saying your husband probably had lung cancer. It was noted by his treating physician at the time they were treating him that not only did he most likely have lung cancer, they had enough evidence to determine it was a separate cancer, and not merely metastasized.

It is also listed on the death certificate. Once again, that shows the doctors considered it to be a likely diagnosis that contributed to his death.

Building the argument will most likely involve building a case that a probable diagnoses meets the "more likely than not" standard, and fighting their tendency to try to say that a definitive diagnosis is required in order to meet the standard for a presumptive illness. Again, I am not entirely clear on this -- but I am sure we can find out with a bit of research.

Any medical evidence your doctor has as to why they determined your husband had probable lung cancer will be helpful, as it can strengthen the case, by showing the diagnosis was based on medical evidence.

It seems very common for the VA to try to question primary sites for cancer. To me, that is a tendency to substitute their own opinion for a medical opinion. Cancer usually carries the name of the site where it originated; not the site where it is found. So larynx cancer that has spread to the lung is not called lung cancer. It is called larynx cancer. If a cancer is diagnosed as lung cancer, that generally means it originated in the lung. So what the VA should need to know that the lung cancer is a primary site is the fact that the doctor called it lung cancer.

Hang in there! We'll keep working on it!