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

[Pete53]

When I filed for VA and SSD I was unsure amd ,amy told me I was wasting my time. When SS granted I knew I would win and a little over 5 years later I did. Over the years I have seen a lot of bad information come from so called experts but I do know this if you don't give up you can win cause for all the ways the VA has to wiggle eventually they draw the noose in on themselves.

I have a special place in my heart for the widows cause they stood by their Veterans when the VA did not.

[free_spirit_etc]

Atomic Widow

In writing your NOD, you will want to address the errors the RO made (such as changing the diagnosis - i.e. disregarding the doctor's diagnosis and substituting their own medical judgement). And you will want to spell out the evidence that supports your claim (i.e. clearly connect the dots for them). It can also help to point out relevant sections of law.

I am attaching one of my arguments I sent to the BVA as an example.

Well dang... I don't see where to attach it -- so I will paste it in here for the moment:

DIC CLAIM

LUNG CANCER IN-SERVICE ONSET

ARGUMENT

1. My husband was diagnosed with lung cancer, and had a 3.1 cm tumor removed, within a short time after his retirement from a 28-year career in the Air Force. He later died from the disease.

2. §3.303(d) clearly states “Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.”

3. Competent medical evidence in the record is sufficient to establish it is more likely than not that my husband’s lung cancer had its inception during service, and thus was incurred coincident with his service in the Armed Forces. § 3.303 (a)

4. Two independent medical opinions were submitted at the September 3, 2013 Board Hearing. Both opinions are well-articulated and based on pertinent evidence in the medical records. Both opinions were written by specialists who are Board Certified in their respective fields in oncology. Both specialists have the requisite knowledge and experience to opine on the medical issues involved in the claim. Additionally, one of the specialists, Dr. xxxx, reported his experience doing bench research analyzing cell survival curves / growth rates.

5. Both specialists clearly stated that it is more likely than not that my husband’s lung cancer had its onset while he was serving in the Air Force. Their conclusions were based, in part, on the size of my husband’s tumor when it was surgically removed in 2000, the standard established growth rate of my husband’s type of cancer, the actual reported growth rate of my husband’s tumor prior to the start of his chemotherapy, the amount of time it took for my husband’s cancer to once again become detectable by CT and PET scans after his September 2000 surgery, the relatively small size of my husband’s recurrent tumor three years post-surgery, and the fact that it took a significant amount of time for his cancer to become lethal.

6. There is no medical opinion, nor medical evidence in the record, that directly conflicts with the recently submitted medical opinions.

7. Though the Supplemental Statement of Case noted my husband’s 1996 chest x-ray did not show evidence of cancer, both specialists pointed out that it takes a significant amount of time for a tumor to become detectable by x-ray. Dr. xxxx, a radiation oncologist, also pointed out that chest x-rays are known to miss the majority of lung cancers for most of the tumor’s lifespan. Dr. xxxx also indicated that my husband’s tumor would most likley have been discovered prior to his 1998 retirement if a more sensitive instrument would have been used for detection.

8. The Supplemental Statement of Case states the October 2007 VA examiner’s opinion indicated none of my husband’s respiratory problems in service can be linked to the development of adenocarcinoma of the lung. However, the examiner only discussed whether the signs and symptoms of respiratory problems noted in the SMRs could be considered an early manifestation of lung cancer. He did not, as the SSOC stated, opine on whether they could be linked to the development of lung cancer.

9. Additionally, the VA examiner limited the scope of his discussion to only the viral respiratory illness my husband was treated for, and did not discuss the non-viral illnesses diagnosed in service, such as his chronic bronchitis.

10. Most importantly, the VA examiner did not actually refute our claim that my husband’s cancer had its onset in service.

11. The VA examiner documented that he reviewed the C-file. There was ample evidence in the C-file supporting our claim that my husband’s cancer had its onset while he was in the service, including Dr. xxxxx handwritten note, Dr. xxxx June 2006 letter, my husband’s statements, and a wealth of supplemental evidence from medical treatises and journals.

12. The VA examiner did not refute any of this evidence. He merely opined that the signs and symptoms of my husband’s viral respiratory illnesses treated in service could not reasonably be linked to an early manifestation of his lung cancer.

13. §3.303(d) does not require an illness to be diagnosed or treated in service in order to establish service connection. In fact, it specifically addresses post-service initial diagnosis of disease.

14. My husband submitted evidence indicating lung cancer is most often considered asymptomatic until late in its development. The evidence was from the U.S. National Cancer Institute's Surveillance, Epidemiology and End Results Program SEER's Training Modules, U.S. Preventive Services Task Force Guide to Clinical Preventive Services, the American Cancer Society, as well as excerpts from articles in peer reviewed medical journals. (Both recently submitted independent medical opinions further substantiate this information.)

15. As evidence in the record reported the asymptomatic nature of lung cancer in its early stages, the VA examiner’s October 2007 opinion does not conflict with the evidence we submitted in support of the claim. Though the VA examiner did not address this well-established medical principle when opining whether my husband’s viral respiratory illness could be early manifestations of lung cancer, he also did not indicate that lung cancer requires obvious respiratory symptoms in order to be present, nor provide any rationale to support such a conclusion. He merely opined that my husband’s viral respiratory illnesses were less likely than not early manifestations of lung cancer.

16. Though the Supplemental Statement of Case stated there is no statement from Dr. xxxx in the file which suggests that my husband’s cancer was present during service, my husband submitted the handwritten note from Dr. xxxx when he filed his initial claim for lung cancer.

17. The handwritten note from Dr. xxxx noted the doubling times of various types of cancer, starred (*) the “Adeno CA,” noted it was 3.1 cm, and noted DT (doubling time) 6 months. He additionally noted “15 yrs till 1 cm.” then noted several more sizes, and then noted “3.25 ß 35.”

18. The 6 month doubling time was further substantiated by the June 27, 2006 letter from Dr. xxxx, who stated that it is accepted as a standard in the field that my husband’s type of cancer has a mean doubling rate of 180 days.

19. Though Dr. xxxxx handwritten note was not a fully-articulated opinion, we submitted a wealth of supporting evidence to show that Dr. xxxxx notations were based on sound medical principles. §3.159 (a) indicates statements conveying sound medical principals found in medical treatises and authoritative writings can be considered competent medical evidence. The Court has held that treatises “can provide important support when combined with the opinion of a medical professional.” (Sacks v. West, 1998).

20. Considering the fact my husband had a 3.1 cm tumor removed 2 years post-retirement, his treating physician noting that it would take this type of cancer 15 years to reach the size of 1 cm certainly suggests that my husband’s cancer was present in service. The two recently submitted medical opinions further substantiate this.

21. The Regional Office was in error to use the October 2007 VA examiner’s opinion as a basis for denying the claim. There was no evidence in the record to suggest that my husband’s cancer grew at a different rate or otherwise fell outside the standard development timeline noted by Dr. xxx and Dr. xxxi, and established in the medical treatises.

22. Additionally, as the Regional Office was aware of the fact that my husband’s discharge physical has disappeared from his file (due to my repeated requests that they look for it), they had a heightened duty to consider the applicability of the benefit of the doubt, to assist in developing the claim, and to evaluate and discuss the evidence favorable to the claimant. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991).

23. The only competent medical evidence in the record that specifically addresses whether it is more likely than not my husband’s cancer had its onset in service clearly establishes that it did.

24. The VA has obtained two VA medical opinions concerning the claim. Neither VA examiner actually refuted the assertion that my husband’s cancer had its onset in service, nor provided any sound medical reasoning for doing so.

25. As there is substantial competent medical evidence establishing my husband’s lung cancer had its onset in service, and no competent medical evidence that actually conflicts with this, I believe that the probative evidence is in favor of the claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (“The Court has cautioned VA against seeking an additional medical opinion where favorable evidence in the record is unrefuted…).”

26. Entitlement to service connection based on doubling time and / or growth rates of cancer is not uncommon. Service connection has been granted on this basis in various claims. (See BVA Citation Nr: 0932955, BVA Citation Nr: 1132635, BVA Citation Nr: 0202424, BVA Citation Nr: 0905201, BVA Citation Nr: 0022373, BVA Citation Nr: 0521737, BVA Citation Nr: 1308760). A non-precedential decision may be cited "for any persuasiveness or reasoning it contains." See Bethea v. Derwinski, 252, 254 (1992).

27. §3.303(d) also states, “Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid.”

28. M21-1MR, Part IV, Subpart ii, Chapter 2, Section B, 3 c. clearly states “Consider whether direct service connection may be established under 38 CFR 3.303(d), even if service connection is claimed for a disease diagnosed after service has ended. Service connection may be granted for a disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service. Do not attempt to establish presumptive service connection for chronic or tropical diseases until the possibility of establishing direct service connection has been ruled out.”

29. When the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must weigh against a claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996).

30. I believe that we have established that it is more likely than not that my husband’s cancer had its inception during the time that he was serving in the Air Force. I respectfully request that service connection be granted for his illness and his death.

Respectfully submitted,

xxx

Edited January 29, 2015 by free_spirit_etc

[Berta]

Superb! This is exactly how to prepare a NOD.

The Nod is the first Avenue of attack ,so best to attack every statement in the decision that is wrong.

I too have used M21-1MR printouts and citations, and used a BVA decision I got long ago that supported a legal argument I had over my FTCA offset.

I also made sure that I referred to my enclosed medical evidence in the NOD ,if they had tried to confabulate it in the decision.

I have stuff at the RO presently (with a NOD on one issue filed over 2 years ago) and I shape everything these days for the BVA..

I wish I was there already. But I have not been denied. My timely NOD was on one statement my Nehmer award letter. They have to address my CUE claim first,on that, and then determine my request for an extension on the NOD, as well as the formal NOD.

If a decision contains a legal error that would have manifested an altered outcome in the award...I raised the point that NOD deadlines can be extended "for good cause" and I think a VA error of this nature is definitely good cause as one cannot prepare a valid NOD on an erroneous decision.

The NOD is one of the most important documents we will ever need to file with VA.

What we do not argue against in the decision, is technically acceptance of what they said.

A decision often has to be read many times to effectively support a strong NOD.

[Berta]

I have one final point for Atomic widow.

Did you or your vet rep raise and attempt to prove direct service connection,in addition to attempting to use the presumptive Radiogenic regulations?

In this Federal Circuit case:
34 F.3d 1039

Clyde R. COMBEE, Claimant-Appellant,
v.
Jesse BROWN, Secretary of Veterans Affairs, Respondent-Appellee.

No. 93-7107.

United States Court of Appeals,
Federal Circuit

Sept. 1, 1994.
Rehearing Denied Oct. 31, 1994.

The court states:

"However, the record does not show that the Board examined the sufficiency of Mr. Combee's proof to show direct service connection under 38 U.S.C. Sec. 1110 and 38 C.F.R. Sec. 3.303(d). The Radiation Compensation Act protects veterans' opportunity to show direct service connection, even if their maladies do not qualify for presumptive service connection. To the extent that the Board and the Court of Veterans Appeals denied Mr. Combee the chance to prove actual causation, they erred. Therefore, this court remands to give Mr. Combee an opportunity to prove that his neutropenia or leukopenia was incurred in or aggravated by his service."

REVERSED and REMANDED."

Many claimants get locked into the presumptive regulations yet have other ways to possible go.

Edited January 29, 2015 by Berta

[free_spirit_etc]

thanks, PR. I'll pursue getting my husband's claim file ASAP.

As for the rest of my appeal of DIC denial:

- lung cancer (not a specific type) is a presumptive condition from military exposure to atmospheric ionizing radiation;

- the VA conceded his participation in active duty atmospheric nuclear testing.

- my husband's death certificate lists "probable lung cancer" under the heading "significant condition contributing to death";

- so I'm getting the pulmonologist (lung cancer specialist) who diagnosed my husband to write an evidence-based opinion that "probable lung cancer" was "more likely than not" lung cancer and why it couldn't be biopsied for 100% certainty. I'm also asking her to provide evidence-based medical research and her opinion supporting lung cancer contributing to death.

I expect to receive that documentation from the MD in March when she returns from maternity leave.

Once I have it in hand, do I just attach a cover letter, form 21-4138 (Statement in Support of Claim) to the medical records and send a copy of all to VA certified mail?

thanks for the wisdom.

Jo

You will want to write a a specific Notice of Disagreement, listing specific reasons you disagree with their decision, and spelling out the evidence for your claim (i.e. connect the dots for them).

As far as "so I'm getting the pulmonologist (lung cancer specialist) who diagnosed my husband to write an evidence-based opinion that "probable lung cancer" was "more likely than not" lung cancer and why it couldn't be biopsied for 100% certainty. I'm also asking her to provide evidence-based medical research and her opinion supporting lung cancer contributing to death."

Why she diagnosed it as probable lung cancer is probably more important than why it couldn't be biopsied for 100% certainty. Though why it could not be biopsied might be relevant, it is not as important to getting your claim approved as why she diagnosed it as lung cancer. The important part is "Based on x, y, and z medical evidence it was determined that the ___ was most likely primary lung cancer.

I am not sure of your relationship with this doctor, but if she would be willing to provide you with a provisional statement, and write a more complete statement once you can get some feedback on what else might be needed for the VA (after we have seen what she has written) that would be wonderful!

It is also great that she is willing to include a statement on how the lung cancer contributed to his death. I know there are some guidelines for that too, where it needs to be shown that it was a significant contribution, and not just a contributing factor. The fact that the Death Certificate actually stated that should be strong evidence. The Death Certificate is a legal document. They should be considered strong evidence. But having a statement that backs that would always help. It is always best to make the evidence as strong as you can, not just as strong as you think is needed. VA claims are not a place to walk the fine line --- get as far above the line as you can and so they have more trouble twisting things around.

If possible, it is good to look for places they will argue, and try to head that off by answering the objection before they can make it. I think that objection in your claim is the use of the word "probable" that they have changed to "possible." Unfortunately, once the RO has made an objection, they generally just keep repeating the same phrase, regardless of the amount of evidence they receive. So it is possible you won't get this resolved until the BVA. But hopefully, you can get it resolved sooner.

Can I ask? Is the doctor who diagnosed the lung cancer also the attending physician who signed the Death Certificate? Or did a different doctor sign it? If so, that is another doctor who confirmed the probable lung cancer.

[free_spirit_etc]

There is a Court case here http://search.uscourts.cavc.gov/isysquery/2b823686-e861-4d32-b187-21bbf3834544/1/doc/

and a BVA case here http://www.va.gov/vetapp10/Files1/1004323.txt

on the issue of probable lung cancer diagnosis.

On the BVA case, they are saying that probable is not a definitive diagnosis - and, in fact, once stated it is not an "actual" diagnosis.

On the court case, they did say that the claimant was entitled to the benefit of the doubt on whether the veteran had lung cancer, but then they upheld the BVA on saying it couldn't be determined if it was primary or metastatic. What is odd is that the physician asked on the remand said it was not possible to tell without a biopsy or autopsy. But he said it was at least as likely as not that it was metastatic. That would follow that it was at least as likely as not that it wasn't. I am not seeing any mention of the widow submitting an independent opinion in that case.

I need to go over these again when I have a little more time to dig. They aren't real promising, but you have to look at all sides of the issue to make the best case that you can.