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sc chap35 no retro


laurel

Question

I'm confused, my husband file 11/2005 died 1/2006 lung cancer. Bva approved recently, but denied accrued benefits because when I received letter of denial I thought that was the end of the claim. I was told lung cancer was not a illness that was not observed by V.A. Later in sept. 2007 I needed help and returned for some assistance and open dic claim. At that time I was told if lung cancer became one of the illnesses added it would be considered a Nehmer claim. In 2010 it became observered and I had an appeal filed since 2009. Since the bva decision I confused as to retro date, I was told initially it would be taken back to 2005 date. Now they are telling me I had 1 yr.from the time of death or denial..not sure, but I was raising children and my husband was dead @ 54 yrs. old. Even still I was told once sc was established it would go back to the time of claim. Now the bit of confusion I got in touch w/Nehmer people and was told its not a nehmer case. This was Vietnam, he was a medic, service buddies substaniated stops and duties, they were station in thailand. I thought if a claim was filed before 2010 it was considered a Nehmer. Now the claim is at AMC and waiting to be rated....death doesn't automatically denote 100%. I don't understand what's happening. The children granted chapter 35, I in foreclosure and this is a hardship, we have waited 9yrs now what? Can Berta reply if at all possible I'm a fan whose been reading her answers for a very longtime. Just got the courage to join and tired of trying to figure it all out.

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I am sorry for your loss Laurel. Can you give us the Docket number and Citation number of the BVA award?

DIC is usually awarded back to the date the veteran died,if the DIC claim was filed within one  year of their death.

Accrued benefits depend on that filing date as well. (But Nehmer is different, under the 2010 Nehmer decision as to those new presumptives. I would have to find the past Nehmer  court orders to see if the accrued benefit statements are the same.)

Was he actually incountry Vietnam?  If so this should have been a Nehmer claim but I think there is more to that.

My initial Nehmer claim was denied because the VA said my husband's SMRs showed no heart disease. Heck, they were kids in Vietnam in the 60s, I bet none of them had heart disease. I was livid because I have been involved in the AO issue since 1991 and raised Cain and within 3 weeks they reversed on the AO IHD and awarded. I am sure many Nehmer claims were handled wrong by the VA. My Nehmer  decision is still wrong but regarding another issue.

Something you said ......

." I was told lung cancer was not a illness that was not observed by V.A. " Can you explain that statement?

My husband;s heart disease never appeared as diagnosed or treated in his VA medical records. I proved he had it as part of a FTCA/1151 case...wrongful death,due to multiple malpracticed conditions.

Are you saying your husband had lung cancer, and was a VA patient, but VA said they never 'observed' the symptoms of lung disease disease?

I got Chap 35 originally under a 100% P & T PTSD rating that came 3 years after my husband died.I then got a more favorable EED when I proved AO DMII contributed to his death ....what did VA base the Chapter 35 award on?

I am just guessing here on all of this. We can help more if you can read the BVA decision.

You said:

."death doesn't automatically denote 100%. " I am not sure what you meant by that but VA tried to tell me a few months ago( this was in a phone call from the director) that my husband's death did not make his 100% 1151 stroke "Permanent". All of my evidence said it was Permanent , I had never seen the VA pull that BS before to get out of paying anything, and after a battle, VA conceded it was Permanent at his death.

I have 20 years of documented claims errors they have made on my issues, ALL of them were battles, and I feel they treat widows like crap if they can, and will try to confound and confuse our issues,hoping we do not understand the regulations that control our claims.

The AO Thailand regulations are here under a search, if he was not incountry Vietnam....but they limit vets to when and where the DOD has said the AO was there.

We can help more when we read the BVA decision.

 

 

 

 

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This is from the Nehmer regulations  that included lung cancer and Nehmer  court Order prior to 2010

 

https://www.law.cornell.edu/cfr/text/38/3.816

(iv) The class member's estate.

(2) Inapplicability of certain accrued benefit requirements. The provisions of 38 U.S.C. 5121(c) and § 3.1000(c) requiring survivors to file claims for accrued benefits do not apply to payments under this section. When a Nehmerclass member dies prior to receiving retroactive payments under this section, VA will pay the amount to an identified payee in accordance with paragraph

That is basically exactly how Footnote One of Nehmer 2010 applies to accrued.

Still without reading the actual remand we cannot determine what VA is going to do with this claim.

"Bva approved recently, but denied accrued benefits"

Was the cancer listed on any past VA rating sheet as a NSC cancer with a percentage?

If not was it a disability that "should have been" listed (Footnote One Nehmer, info available here in the AO forum on Footnote one)

My AO IHD claim was a "should have been" listed NSC IHD on past rating decisions.

But that was because they malpracticed and never diagnosed it. Under Nehmer they did acknowledge it and gave a 30% rating (which I might CUE at some point as it was the prime cause of his death)

But in your case, there is a different reason why they denied accrued benefits but I don't know why and the decision will reveal more.

If this is not a Nehmer claim, then accrued benefits would be determined by any claim the veteran had filed himself, that was pending at death and that the survivor continued.Did yiour husband have any VA claims pending at his death? Did they involve the lung cancer?

3 issues here...is this an incountry Vietnam vet, and thus a Nehmer claim?

what reason did they deny accrued on,

What is the proper date of the DIC retro?

I hope others chime in here. We have many Vietnam vets here with AO presumptives and don't want their spouses to have to deal with VA in the arbitrary way many of us surviving spouses have had to, after they are gone.

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Hi Berta, thanx for response! Here goes the bullet points to our conversation. In regard to cllaim file it was filed undered lung cancer, three months after learning he had the disease. It was never rated, he died three months later 1/2006. Claim pending @ time of death.I received the denial and went to R.O. and was told lung cancer was not one of the presumptives. I was over whelmed by thiis and the fact that even service men carrying the barrels od A.O. were not getting compensated. Even to the point of Mrs. B. you might as well get married again because this is going to take a very long time. My response was how "I'm still in love with my husband" and his body was riddled w/cancer @ 54 something happen. I went bed listening to war stories....drinking  well water, hospital bombing, doing sutures and going to pickup dead bodies. He was a medic stationed in Thailand. I don't even know if personnel file was found due the fire. My husband was not treated @  V.A. hospital (happen fast,he proably carry this for some time) too far for me & children to visit, walked in the door w/stage 4,it was fast and serious. My confusion with my claim now at rating level is wouldn't death be a 100%. Now I can only assume it means something more than that. Here is the point...I'm getting a education in something I did not buy..thanx for your help. Back to the events that ensued, in 2007 of sept. I went back to R.O. due struggling w/finances and raising kids and open a DIC claim and was denied...not service connected. Then in 2009, filed an appeal. Time lapses because w/backlog it takes them forever to get back to you. Right now I'm questioning when I received the first denial letter if the 1yr.rule comes into question. At any rate I didn't receive a widows low income pension untill my youngest turn 16 and I was no longer able to receive social security, that occurred in 1/2011. In 2009 the SVR filed the appeal under Nehmer and told me I would considered such due the line of work ...Air Force medic. My claim is @AMC being rated, I guess for DIC , don't know the date they are going to use asof yet. Not sure what it means....called and neither does anyone else. All I know is I ve been told that once it became a pressumptive, because he died before it was adjudicated, it would be paid from time of dearh. Now I'm hearing one year rule, lost or burn files, no way to know boots on ground. Even though I found two buddies and a current V.A. doc now working in Houston to substaniate it. The reply refer is (0141 A1) the docket no. 10-20 084. Berta I was heart broken over this win lose. I was depending on everything I was ever told about retro and still sitting here with fingers crossed. Thank you again and I'm truly sorry for your loss as well, but know this ....your husband would be so so proud of you! I've been reading your responses for years

 

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"At any rate I didn't receive a widows low income pension untill my youngest turn 16 and I was no longer able to receive social security, that occurred in 1/2011."

If you can prove direct service death, from what I see here, you would be eligible for the REPS benefit. That is explained here under a search. It was a payment for the 2 years of SSA I lost when my daughter turned 16.

http://www.va.gov/vetapp11/Files4/1140199.txt

That is definitely the shortest remand I have ever seen and really doesnt tell me anything accept that there was a buddy statement,but I think the statement involed Thailand...?.

."In 2009 the SVR filed the appeal under Nehmer and told me I would considered such due the line of work ...Air Force medic. My claim is @AMC being rated, I guess for DIC , don't know the date they are going to use asof yet. Not sure what it means....called and neither does anyone else"

Can you scan and post a copy of the claim they filed (cover C file number ,name, address prior to scanning.

Was your husband in Vietnam at all during the war?

"Now I'm hearing one year rule, lost or burn files, no way to know boots on ground."

 

Va is fast to say the SMRs were burned in the St Louis Fire when they see USAF....have you attempted to get them yourself?

 

Go to the www.archives.gov web site and click on veterans records, and follow the directions there,. You will need to fill out a SF 180, and ask for his complete SMRS as well aqs his complete 201 Personnel file,. You will need to print off the bar coded thing they provide , sign it, Copy it, and then send it to where the site tells you to ( The back page of the SF 180)

I will find the Thailand regs and post them n

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This entire thread contains the Thailand Directive and the regulations.

If he had no boots on ground Vietnam, he would have to fit into the specific criteria and dates in this directive to proof Agent Orange exposure unless that buddy statement is solid. VA often does not give buddy statements too much weight.Was the statement from a supply chief or someone in Command? Where in Thailand was he stationed?

I think he probably got a stop over in Vietnam, but that would have to be proved as well.I am not familar with USAF 201 files, (my daughter is USAF vet) and she was in Vietnam twice (but after the war for TS AD) so I assume there would be an arrival and destination sheet , like what my husband's USMC  201 files revealed, the his records..

 

The BVA remand tells us nothing at all about the claim.

Can you give us the Docket Number and Citation number on whatever the BVA decision was that this statement came from:

"Bva approved recently, but denied accrued benefits" They might not have it yet at the BVA web site , if not can you scan and attach it here?

 

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Maybe this will simplify  what you are concerned about. I must admit I became quite confused here...

You said the DIC was granted,so no need to seek the SMRs etc from www.archives.gov

The AMC will pay your any retro due, and the 2015 rate is 1,254 per month. When the retro date is determined they will go to the DIC rate chart at VA.gov to determine those payments that fall under the retro dates for any past months and years..

Your children were awarded Chapter 35 (and they should also be eligible for CHAMPVA- and you too.

I think your main concern is if the retroactive DIC payment will be proper. Without knowing what was sent to the AMC and what the actual reason if for the DIC(in the DIC award) we cannot guess here as to what the DIC EED should be.

Nehmer is for Vietnam incountry veterans.

The Thailand AO awards and effective dates and accrued are different.

 

 

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