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Poopsy Woopsy

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Poopsy Woopsy

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My husband was 70% PTSD and had three claims pending; Unemployability, AO, A&A. but before they were awarded. the VA killed my husband.

I was awarded DIC, as it was an easy case having a letter from an outside cardiologist stating the reason he died was neglect on the VA's part. 

I checked the status of the pending claims. and the person said you just have to wait. I said, are they just waiting for me to die too! AND, his 

answer was, Yeah, kinda looks that way! He also mentioned there was no Unemployability on the claim. I have a copy of the paperwork

that the Va rep sent in. So I have proof it "WAS FILED" He was suppose to get back to me about it not being there, but I never heard.

I am now stuck on DIC because I am suffering from several maladies that all came to light right after my husband passed away.

I can't work because of them and am looking at surgeries.

I was asked to come see the VA rep at local congressman's office. He did some checking and told me you have no claims open.

HOW CAN THAT BE. No letter stating such. Nothing!. It was definitely news to me, after waiting all this time.

He said, I should have filed a TORTE claim after it was found that the VA was responsible for my husbands death.

How can you do something you are not aware of. and Damn sure the VA won't tell you about!!

 I have passed the statute of limitations, as it will be 3 yrs. this coming May!! 

Am I dead in the water. and if so. How could that be possible as I was not informed or aware of any of it!!

My grief is  insurmountable and the physical has taken any quality of life I might of still had. but now I am stuck with not enough to live on. 

How is that even possible if they (The VA)  are in the wrong? What recourse do I have? Do not tell me "NONE" They made choices. and that

means I have choices!!  They don't know the "Wrath I can bring as a grieveing wife to get things "DONE" 

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Hopefully, someone suggested you file a "substitution of claimant" which is required when the VEteran dies.  

In other words, the claim dies with the VEteran UNLESS you file a substitution of claimant.

There is a time limit for that to happen.  

According to this site, this must happen within a year of the death of the claimant.  

https://blog.eldercounsel.com/does-a-va-pension-claim-die-with-the-claimant

Naturally, if you were represented by an attorney the attorney should have explained this for you.

If represented by a VSO, its hit and miss, more miss than hit.  

If there is a large potential retro, then you should consider legal representation.  I have had a claim in since 2002, and the VA's MO is just like you said...they delay you until you die, then they begin delaying the spouse all over again.  

Since it would appear the severity of your late husband's injuries is not an issue after death, then it boils down to service connection and effective dates.  (for retro). 

Since you have gotten DIC, it sounds like this must have been SC.  Or, your husband passed 10 or more years after he was rated 100% (that is another way to qualify for DIC).  

You may be eligible to file on your late husbands social security.  Check with social security about that.  

Now, on to effective dates, since that may be your primary issue, that is, you are trying to get IU on your deceased hubby.  

YOu want to resubmit those TDIU forms pronto.  Explain those were previously submitted on xx-xx-xxx (date submitted claim for tdiu).  

The effective date for your retro will be the later of "the date filed" or "facts found", which is the date the doc said your hubby became unemployable.  

Check his medical records to see if a doctor said your husband was "unable to maintain SGE" due to his service connected condions.  

You will also need to file the TDIU form on the correct form.  Previously this was not required, but dont take chances here..file it on the correct form, after substitution, of course.  

Unless you are amazingly persistent, organized enough to keep copies of all documents, and great at researching and sorting out case law, you should likely consider an attorney.  

I explain this over and over, but an attorney often costs less than you think, sometimes zero.  Here is why:

When you go to the CAVC and are represented by an attorney, he or she should apply for compensation under EAJA.  The EAJA fees are regurlarly awarded, and that amount will be deducted from any attorney fee you pay.  Example:

I recently went to cavc on an appeal, represented by an attorney, Julie Glover at Glover Luck in DAllas texas.  

My attorney won a remand, and 6000 in attorney's fees.  This means, when/if I do get my retro, the first 30,000 in retro will have no attorney fees.  In other words if my retro is less than 30,000 my attorney fees will be zero.  I will pay 20 percent to any retro ABOVE 30,000.  My attorney charges 20 percent, so 20 percent of 30,000 is 6000.  That is why Im unlikely to pay any attorney fees, and I will be smiling even if I do pay attorney fees, since that would mean I get over 30,000 in retro.  So, if my retro is 35,000:

35,000 times 20% equals 7000

But EAJA paid                -6000

So I would owe 1000 to the attorney and would collect 34,000 in retro.  

Edited by broncovet
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"They don't know the "Wrath I can bring as a grieveing wife to get things "DONE" .

It was "wrath" that helped me prove my husband's wrongful death.His malpraticed heart disease was but one part of the final outcome.

You said :

"My husband was 70% PTSD and had three claims pending; Unemployability, AO, A&A. but before they were awarded. the VA killed my husband.

I was awarded DIC, as it was an easy case having a letter from an outside cardiologist stating the reason he died was neglect on the VA's part. "

Yes, they awarded DIC but I assume under Section 1151.

1151 DIC has no ancillary benefits such as CHAMPVA and Chapter 35  with it.

If your husband was an incountry Vietnam Veteran and had Ischemic heart disease, the VA should determine that his IHD ( as long as the death certificate reveals the IHD caused directly or contributed to his death)

they will award a subsequent AO Direct SC death that would give you CHAMPVA as well as Chapter 35 for his dependents and multiple other benefits. That award could also give you accrued benefits for potential SMC S.

In my case ( I went through all of above and the direct AO IHD death was awarded in 2012 ( 18 years after my Marine husband died) with a favorable EED under Nehmer...

"I was asked to come see the VA rep at local congressman's office. He did some checking and told me you have no claims open."

That is VERY concerning!!!!!!

I suggest you file an IRIS inquiry to get a status of those claims.

TDIU----my husband filed for TDIU about a year before he died. They have never mentioned that.

But they did award 100% P & T for his PTSD posthumously. I assume they cannot award TDIU to a dead veteran, but would award 100% P & T instead.

When you filed the DIC form did you file the substitution form as well?

Broncovet is right on that form and the one year deadline but it might not even apply to AO claims under Nehmer. I need to check.

Since the IHD was malpracticed on, you might well be a "Footnote One" Nehmer claimant.

I was a Footnote One Nehmer claimant and received a very favorable EED due to their malpractice.

Still - it would be good to check with IRIS as to the actual status of your claims.

Go to the main VA web site, www.va.gov and click on the Contact Us button, then click on Ask a Question, and the site will redirect you to IRIS.

You will need to fill out the form there and  I always wrote my qeustion in Word and then copied and pasted it into the IRIS thing, to make sure my questions covered everything, and then ask for an Email reply ( so they cant make anything up by phone).

There is plenty here on AO IHD claims and Nehmer and I hope your vet rep who filed the DIC claim knows how these claims are handled.

Did the DIC award letter have a rating sheet with it or any info on what they actually awarded?

If so can you scan and post that decision here ? ( Cover C file # ,name, address)

You said:

"How is that even possible if they (The VA)  are in the wrong?"

The VA made countless errors and deliberate mistakes in the course of my FTCA and 1151 claims.

 

My DIC 1151 award letter held 4 or 5 CUEs, (clear and unmistakable errors) all granted but  with one still pending.

They even denied my AO IHD claim at first, but within a few weeks reversed with an award because I called CUE on them with a scathing  IRIS complaint identifying the VA  idiot who  wrote the denial letter .I still wonder how many other AO IHD widows he denied, who might have done nothing about it.

 

They want to believe us widows are stupid and so grief stricken that we wont fight back.

My husband made me promise I would continue his claims ( PTSD ,TDIU, and 1151) on a beautiful Fall morning 22 years ago, after he had called the VA for a status. He collapsed 4 hours later and died as I gave him CPR.

I am still angry about what they did to him and wrote to Secretary Shulkin recently ( CCed to POTUS) as to how the VA hides it's malpractice statistics from Congress and the public so no one knows ( except the VA and some of us FTCAers and a few lawyers too I think)) just how many veterans the VA kills with lousy medical care.

Your main issue is the AO IHD claim, in my opinion.

If you can scan and attach the DIC award here it will tell us more.

It might well be as erroneous as mine was in 1998 and a vet rep told me not to NOD it.

By 2003 I had another malpractice claim ( AO DMII)(awarded 2009) and that is when I filed CUEs on the 1998 award as it still bothered me and the vet rep should have told me to NOD it.

Did you have a rep from the VA or a rep from a state org or DAV, AL, VFW etc?

I received Chapter 35 and CHAMPVA from the posthumous 100% SC PTSD award I got.It could work that way for you,if the PTSD claim is still pending.

Otherwise it would be the AO IHD death DIC award that would garner you hopefully CHAMPVA, and other ancillary benefits.

I have 4 DIC awards but they only pay one award every month.

That's OK because every award brought me closer to understanding how significant their malpractice on my huisband was....and worse yet....how they almost got away with it, with a documented cover up-----and other crap they tried to pull on me....and they failed.

If they can raise the PTSD to 100% P & T, and if the AO IHD is at 60% or greater, that would set up the SMC S potential here.

Others will chime in too I hope....

 

 

 

 

 

 

 

Edited by Berta
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By CHAMPVA , I mean the Civilian Health and Medical Program from the VA.

If a spouse is qualified for CHAMPVA they must also obtain Medicare Part A and Part B when they are 65.

CHAMPVA would help you a lot . Save all of your medical bills because some  of them could possibly be refunded retroactively----that all depends on the EED that an award letter determines that makes a survivor eligible for CHAMPVA.

I see the AO IHD as your main issue but also the PTSD claim is Very important too,as our situations as similar and it was the PTSD award from 30% to 100% P & T that awarded me Chap 35 and CHAMPVA.

In those days I had to start from day one on my husband's pending claims.

He had a PTSD award from SSA, Voc Rehab records,2 VA PTSD hospitalizations and multiple psychological tests tests done in his lifetime ( after a battle) and the VA gave a very favorable EED for that accrued award 

but they could have awarded it all in his lifetime yet chose to ignore the evidence( and lied to my Senator and 2 Congressman about the SSA award)so that claim took 3 years.

It is the PTSD claim you have that will depend on how soon after death the accrued /substitution claim was filed.

I am sure that wont be an issue in the AO IHD claim but will have to read over all the Nehmer info here.

I know this is all a lot to digest, and grief and anger can cloud our thinking.

And worse yet , we can get poor advice from vet reps and VSOs who do not have a clue ,but will act like they are omniscient.

 

 

 

Edited by Berta
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I found what I wanted to post here.

As Broncovet correctly stated, the non AO claims require a substitution form filed for any accrued benefit.

This is the regulation regarding Nehmer claims, which is defined as a retroactive payment, not an accrued payment:

 

“I.  Retroactive Benefits

The appellant contends that the Veteran's heart disease was due to Agent Orange exposure and, therefore,  retroactive benefits are warranted pursuant to the Nehmer decision. 

 

This is not a claim for accrued benefits.  The RO, on its own initiative, sent the appellant a letter in March 2011 explaining that it was going to review the matter pursuant to Nehmer v. Veterans Administration of the Gov't of the U.S., 284 F. 3d 1158 (9th Cir. 2002).  The provisions of 38 U.S.C. 5121(c) and §3.1000(c), which require survivors to file claims for accrued benefits, do not apply to payments under 38 C.F.R. § 3.816, regarding awards under the Nehmer Court Orders for disability or death caused by a condition presumptively associated with herbicide exposure.  See 38 C.F.R. § 3.816(f)(2) (2015)."

That is what I was searching for.The AO claim is not dependent on any accrued or substitution form being filed within one year after death.

The BVA decision goes on to state:

"1) Applicable Law

 

Retroactive benefits may be paid under Nehmer if a Nehmer class member is entitled to disability compensation for a covered herbicide disease.  See 38 C.F.R. § 3.816. 

 

Nehmer class member means: (i) a Vietnam veteran who has a covered herbicide disease; or (ii) a surviving spouse, child, or parent of a deceased Vietnam veteran who died from a covered herbicide disease.  38 C.F.R. § 3.816(b)(1).  If the class member's claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose, except as otherwise provided in paragraph (c)(3) of this section.  38 C.F.R. § 3.816(c)(2). 

 

The covered herbicide diseases are listed in 38 C.F.R. § 3.309(e).  See 38 C.F.R. § 3.816(b)(2).  This list includes ischemic heart disease, which was added to the list of covered herbicide diseases effective from August 31, 2010.  See 38 C.F.R. § 3.309(e); 75 Fed. Reg. 53202 (Aug. 31, 2010). “

 

https://www.va.gov/vetapp16/files2/1609942.txt

(This above claim was denied but for reasons beyond the regulations they cited)

It worked in my case. 

AO IHD death claim filed Sept 2010

IHD never diagnosed or treated during the veteran's lifetime.

1998 1151 award to include IHD, in malpratice statement , but no rating, no diagnostic code

No accrued claim pending specifically for IHD

Medical evidence warranted retroactive payment for AO IHD back to 1988,to his date of death under Nehmer....as the "date disability arose" per the Nehmer regulations above, as it was the first date of the VA's awareness of my husband's IHD.....which they failed to diagnose properly and treat( FTCA/1151)

 

 

 

 

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Remember, VA losing your claim is VA's favorite next to denial or delays.  They "lose" claims on purpose, as they have done mine.  Its called "shredding", and, yes its alive and well.   More and more VEts are having claims "mysteriously disappear".  This should not be possible with electronic claims filing, but VA must have figured out how to shred the stuff electronically also.  

The VA gets away with this, over and over, simply because there is no accountability.  With a new VASEC, you should certainly let him know this.  

However, you need documetation from your "VA rep", which I presume is a VSO, that is was filed.  Your VA rep may have been the one to drop the ball.  Its not good he (apparently) wont return your calls, but I think about one in 10 VSO's return calls.  

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On 4/5/2017 at 5:38 AM, Berta said:

"They don't know the "Wrath I can bring as a grieveing wife to get things "DONE" .

It was "wrath" that helped me prove my husband's wrongful death.His malpraticed heart disease was but one part of the final outcome.

You said :

"My husband was 70% PTSD and had three claims pending; Unemployability, AO, A&A. but before they were awarded. the VA killed my husband.

I was awarded DIC, as it was an easy case having a letter from an outside cardiologist stating the reason he died was neglect on the VA's part. "

Yes, they awarded DIC but I assume under Section 1151.

1151 DIC has no ancillary benefits such as CHAMPVA and Chapter 35  with it.

If your husband was an incountry Vietnam Veteran and had Ischemic heart disease, the VA should determine that his IHD ( as long as the death certificate reveals the IHD caused directly or contributed to his death)

they will award a subsequent AO Direct SC death that would give you CHAMPVA as well as Chapter 35 for his dependents and multiple other benefits. That award could also give you accrued benefits for potential SMC S.

In my case ( I went through all of above and the direct AO IHD death was awarded in 2012 ( 18 years after my Marine husband died) with a favorable EED under Nehmer...

"I was asked to come see the VA rep at local congressman's office. He did some checking and told me you have no claims open."

That is VERY concerning!!!!!!

I suggest you file an IRIS inquiry to get a status of those claims.

TDIU----my husband filed for TDIU about a year before he died. They have never mentioned that.

But they did award 100% P & T for his PTSD posthumously. I assume they cannot award TDIU to a dead veteran, but would award 100% P & T instead.

When you filed the DIC form did you file the substitution form as well?

Broncovet is right on that form and the one year deadline but it might not even apply to AO claims under Nehmer. I need to check.

Since the IHD was malpracticed on, you might well be a "Footnote One" Nehmer claimant.

I was a Footnote One Nehmer claimant and received a very favorable EED due to their malpractice.

Still - it would be good to check with IRIS as to the actual status of your claims.

Go to the main VA web site, www.va.gov and click on the Contact Us button, then click on Ask a Question, and the site will redirect you to IRIS.

You will need to fill out the form there and  I always wrote my qeustion in Word and then copied and pasted it into the IRIS thing, to make sure my questions covered everything, and then ask for an Email reply ( so they cant make anything up by phone).

There is plenty here on AO IHD claims and Nehmer and I hope your vet rep who filed the DIC claim knows how these claims are handled.

Did the DIC award letter have a rating sheet with it or any info on what they actually awarded?

If so can you scan and post that decision here ? ( Cover C file # ,name, address)

You said:

"How is that even possible if they (The VA)  are in the wrong?"

The VA made countless errors and deliberate mistakes in the course of my FTCA and 1151 claims.

 

My DIC 1151 award letter held 4 or 5 CUEs, (clear and unmistakable errors) all granted but  with one still pending.

They even denied my AO IHD claim at first, but within a few weeks reversed with an award because I called CUE on them with a scathing  IRIS complaint identifying the VA  idiot who  wrote the denial letter .I still wonder how many other AO IHD widows he denied, who might have done nothing about it.

 

They want to believe us widows are stupid and so grief stricken that we wont fight back.

My husband made me promise I would continue his claims ( PTSD ,TDIU, and 1151) on a beautiful Fall morning 22 years ago, after he had called the VA for a status. He collapsed 4 hours later and died as I gave him CPR.

I am still angry about what they did to him and wrote to Secretary Shulkin recently ( CCed to POTUS) as to how the VA hides it's malpractice statistics from Congress and the public so no one knows ( except the VA and some of us FTCAers and a few lawyers too I think)) just how many veterans the VA kills with lousy medical care.

Your main issue is the AO IHD claim, in my opinion.

If you can scan and attach the DIC award here it will tell us more.

It might well be as erroneous as mine was in 1998 and a vet rep told me not to NOD it.

By 2003 I had another malpractice claim ( AO DMII)(awarded 2009) and that is when I filed CUEs on the 1998 award as it still bothered me and the vet rep should have told me to NOD it.

Did you have a rep from the VA or a rep from a state org or DAV, AL, VFW etc?

I received Chapter 35 and CHAMPVA from the posthumous 100% SC PTSD award I got.It could work that way for you,if the PTSD claim is still pending.

Otherwise it would be the AO IHD death DIC award that would garner you hopefully CHAMPVA, and other ancillary benefits.

I have 4 DIC awards but they only pay one award every month.

That's OK because every award brought me closer to understanding how significant their malpractice on my huisband was....and worse yet....how they almost got away with it, with a documented cover up-----and other crap they tried to pull on me....and they failed.

If they can raise the PTSD to 100% P & T, and if the AO IHD is at 60% or greater, that would set up the SMC S potential here.

Others will chime in too I hope....

Thank you for your input

My husband had 70% PTSD. 4 out of the list of 10 for AO and was in the waters but not boots on ground. Secret mission, so makes it difficult to get info,

I got ChampVA. and I have to have medicaid pick up what ChampVA doesn't pay.

I am not as yet 65 so don't file for medicare.

I also filed the paper to change payee from my husband to me. No one told me to, I just found out on my own, the day before time ran out. I also have the copy of the files I have been waiting for.

I have copies. letters and Dates, times and all info from early on. 

My husband should have gotten Unemployability early on. They wouldn't even give us A&A. I have all his medical records and a few letters I had written to show he should have been eligible (One was an answer to an independent "How did we do" Co. about the Va, They told me it got "Policy Changes" at the VA). 

I have had issues with the VA reps here, so started taking things in my own hands. 

I have a lot of info, One huge thing would be to show reason for exposure.. He was in the waters of Viet Nam, which now they will recognize, but I don't have any proof yet, and they should have shown proof against it then, rated it as the criteria changed. That is why I think he is eligible now. I also think I have medical evidence to show he should have been 100% PTSD, as they tried putting him in a home (was their recommendation); after one of his hospital stays. Never would have happened!! (For better or for worse. would never leave him in his time of need).

My husband was 70% service connected and I receive champVA & education money that I have used just this last year, (So is that different than just DIC?). So my plight is not to get DIC I already have it. I want the claim of Unemployability to make him100% and AO because of having 4 of the 8 or10 ailments you must have to even get AO. So I can receive the accrued monies we have been waiting for all this time. 

The Va officer at the local senators office said I should have filed a "Torte" claim as soon as they took responsibility of his death. 

How in the hell are you suppose to do something you are not even aware of. I called a lawyer and he said you'll be dead before you see any money so take the DIC. Well VA had me over a barrel since I couldn't work (and they wouldn't pay me to take care of my husband, Anyone could have gotten paid to take care of him but me!) We now didn't have an income other than him receiving his award for 70% PTSD. that we were now stuck living on. So how could I have waited around for them to take responsibility in his death and warrant me an award.. They've got you right there.. We already had to use my 50,000 inheritance just to live until they gave us the PTSD award. Remember he couldn't be left without round the clock care....AND now they say I don't even have a claim in!!! Where does this injustice END!! AND all of this "PALES" in dealing with the loss of my husband.. I still cry EVERY day and it has been almost 3 yrs (this May18th) Another live ruined. God help them all!! 

 

 

 

 

On 4/5/2017 at 5:38 AM, Berta said:

 

 

 

 

 

 

 

 

 

Edited by Poopsy Woopsy
too much more to say
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