ao Persistant

[Persistant]

Berta told me about Footnote One Nehmer yesterday and I had not heard about that although I do know about Nehmer.  And yes my husband was rated for Ischemic heart disease before it was added to the presumptive list. And his death certificate signed by his GP at VA saying long term heart disease.  It was rated as secondary to diabetes (which was rated 20% initially) and was already a presumptive condition. He had applied for both at that time - about 2003 or 2004.  He was rated 30% initially for his heart even though he had had a quadruple bypass (Dec 2000) with neurological complications, extensive scar tissue from many previous heart attacks that had to be cleaned out before the bypass could proceed in surgery.  He had a TIA on the operating table and post pump syndrome from being on the heart lung machine so long (due to the cleanup) for surgery.  He was told by his heart specialist he could no longer work at what he was skilled to do. He was granted SS Disability as a result 9 months later.  

He filed his first VA claim a couple years later when his buddy finally persuaded him to do it.  He had been diagnosed with Type II Diabetes in 1997.  They didn't address any of the neurological stuff (from the heart surgery) as I recall at all or the post pump syndrome (which usually goes away rather quickly but was a problem for at least a couple years for Don).  The lower left ventricle of his heart was dead already before surgery from previous attacks we didn't know about - silent due to diabetes.  And his ejection fraction was 25 before and right after surgery and then came up to 30-35.  It bounced around some over the years but was usually 30-40. He had an echocardiogram every year which approximated it. After 2 hospitalizations for Congestive Heart Failure over the next few years, they finally rated him 60% heart and 40% diabetes (when he became insulin dependant.  Shortly after starting insulin  - a few months -  Don was put on an insulin pump because he was needing so much insulin and put him on the U500 insulin which is very closely monitored because of being so very strong) and VA rated him for 10% each leg for Peripheral Neuropathy.  Don also claimed PTSD, which should have been granted, as we had a few years worth of records already from a private practice psychologist the VA had recommended whose report said he had it and it was from VietNam (non-combat).  But Va's C&P psychologist or psyciatrist said he wasn't sure of that origin. He agreed Don had it. They asked us to prove Don's stressors.  We searched for months for other guys Don remembered being there, found one but couldn't prove the stressors.  They never contacted us when the requirement to prove stressors was lifted to re-evaluate his claim.

In 2006 they rated  him TDIU and his heart 100% by itself in the same decision with effective dates a few months apart???  Makes no sense to me since the TDIU was then dropped due to the 100% rating.  That was his last rating - 2006. He developed kidney failure late 2010 with a hospitalization of a few weeks for Congestive Heart Failure because the kidneys weren't removing the fluid with normal types of hospital treatment. He was treated by a team consisting of his heart specialist,  his GP who had admitted him, and the new Nephrology group the GP brought in. All Private Practice doctors and hospital. They finally tried something rather bold, I'm told, that started the fluid draining.  After discharge, at home, he had a few weeks of digital monitoring of his stats, reports I had to give them on weight and output amounts etc. and nurse visits and was told to prepare for dialysis.

About that time his doctor at VA called, alarmed, at his rapid decline in kidney function. That is in the medical records at VA along with numerous notations of him being on dialysis and having a port in his abdomen for it, every time he went in for a 6 month checkup.

As you know, Berta, we asked about rating his kidney failure (which his doctors say was from diabetes making it another secondary condition of diabetes and so service connected..) and 3 different VSOs in 3 locations each said we couldn't go above 100%. I didn't know about these kind of forums then.  And only discovered the blog I reference below, by accident.  We also asked his doctors at VA and they didn't know either.  But one of them (unbeknownst to us) requested payment from VA for the 'dialysis treatment plan' and they agreed to pay for supplies, treatment, bi-monthly clinic followups with the 'team' (nephrologist, nurse, dietician, social worker). They also covered delivery of supplies to our home bi-monthly (huge amount of heavy bags of fluid and much more.).  He had started dialysis April 2011 and they began paying April 2013 and continued until his death Dec 6, 2015.  In March 2015 I saw a blog about Special Monthly Compensation and about rating conditions beyond the 100% level. I asked for an analysis of Don's case and the attorney agreed requesting Don's C-File from VA in March. It didn't arrive until late Aug 2015.  The analysis  wasn't quite finished when he died.  A & A was definitely something he qualified for as well and I have many statements from friends, relatives, our pastor etc as well as notes in VA's files and doctor statements about it. But that's another story.

I don't know if Nehmer affects anything I've said here or not.  Does anyone else?  Berta?  And we were not ever contacted by VA or NVLSP about it.  Maybe because he was already 100%? 

I did apply for DIC and Accrued benefits within the year following his death and was granted DIC and denied accrued because they said there weren't any.  They never checked his C file or medical records or Treasury to discover anything really. I had thought the attorney would represent me in an appeal but he's decided not to.

My DIC was granted at the higher level due to Don having been 100% for over 8 years.  I'm not sure what you thought I interpreted wrong about that Berta.  

[Berta]

Thanks for the recent Scan 0020. It made this CUE claim easy to prepare.

I suggest you get a hold of the Vietnam Veterans of America and have them go over it.

If they do not understand it I can explain it to them here. I am surprised they didnt catch it.

 

 

 

Department of Veterans Affairs                                           (date)

Togus Regional Office                                                         (C file #)

This is a claim of CUE (clear and unmistakable error) under auspices of 38 USC 5109, in the enclosed decision , dated April 18, 2007. Copy enclosed ---pages.

I am the surviving spouse of the veteran ( put his full name here)and my accrued benefits  application was filed in timely fashion, within one year of the veteran’s death on  (date)

The CUEs (there are two) occurred because VA failed to apply basic VA case law and  the statutory mandate of the SMC regulations.

CUE # 1 .This is a violation of 38 CFR 4.1 et al, specifically 38 CFR 4.6:

“ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law." https://www.law.cornell.edu/cfr/text/38/4.6

CUE# 2

This CUE is a violation of the SMC mandate, in the April 18, 2007 decision,thus:

The Statutory mandate is quite clear and found within M21-1MR,Part IV, Chapter 8, and explained in the VBM, by NVLSP :

"The VA Adjudication Procedures Manual (M21-1MR) mandates that VA adjudicators consider entitlement to

    special monthly compensation as an inferred issue. VA rating activities are obligated to consider entitlement to

    special monthly compensation in all decisions where the medical evidence indicates possible entitlement."

   (Source:  2009 Edition of the Veterans Benefits Manual by National Veterans Legal Services Program.)

The medical evidence in VA’s possession at time of the above April 28, 2007 decision ,warranted proper consideration and application of the SMC regulations. Also the veteran was an Agent Orange -exposed veteran of the Vietnam War.

The CUEs above ,due to lack of consideration of the statutory mandate of SMC,as an inferred issue, manifested an altered outcome for the veteran ,in his lifetime, and the retroactive amount is now due to me, as his surviving spouse.

I request a retroactive amount for the highest level of SMC he was eligible for, based on all medical records in VA’s possession, at time of the April 18, 2007 decision.

I have enclosed a copy of your April 18,2007 decision.

                                                                                                            Respectfully,

Enclosures: April 18 2007 decision( pages) (sign, adding ,surviving spouse of ( the full name of the veteran.

(note, please put your name, address, and Cfile Number on every copy page of the decision and mark the copies as 1-7, 2-7 etc etc ,as it appears to be a 7 page decision. I suggest that VVA ,if they still hold POA for you, go over the CUE, and then make sure the VARO gets it.)

 

 

 

 

 

 

 

Edited August 4, 2017 by Berta

[Berta]

forgot to add....I do not understand the appeal you mentioned.

Others might be able to help with that issue if we know more.

[Persistant]

forgot to add the scans - sorry

[Persistant]

Berta you mentioned housebound and there is a myriad of information that actually reaches the higher level of Aid and Attendance since he would have had to have round the clock attendance without me to get through every day safely. I took care of the needs surrounding his dialysis (5x per 24 hour periods) that he couldn't do alone; I was trained extensively to do it and operated under the umbrella of the dialysis clinic nurses and doctors which we saw (always together) 2x a month for almost 5 years. That's just one aspect of the whole picture. And of course, as I've said before, his renal failure was never rated at all. So I'm not sure how all this needs to be presented to VA now. I have collected written, signed statements both lay and doctors and head nurse from the clinic stating what each observed that he needed me to help him with.  Doctor statements that the renal failure was due to diabetes.  Etc. I went to every doctor appt and test because he couldn't get the information straight either to them or from them; I had to understand what every med was and what it was prescribed to do (not always what they were know for doing), when to reorder so he didn't run out (21 medications), helped him put shoes and socks and pants on, dress his dialysis port, get juice and open it when his sugar went low, then check again 15 min later and give him food to keep it up, watched his dietary needs which were different for renal issues and heart issues and again for diabetic issues and on and on the list goes.  But when he was in a doctor's visit, he was the picture of having much together and it wasn't obvious to them...he didn't want to appear deficient as a man. So he sometimes lied to them too especially in C&P exams when I wasn't allowed to accompany some interviews. So information in the C-file is inaccurate in many places too. Well you get the picture. The head RN at the clinic wrote a great letter about what is involved in Peritonial Dialysis at home and my lay letters are outstanding as well. It's overwhelming to me to read them now and realize all that went on day after day back then.  

[Berta]

The only way to recover any additional accrued benefits, as far as I can tell here- is with CUE claims.

You mentioned an appeal. Was it to appeal the DIC claim?

The problem with any new or secondary issues ,that were not claimed in his lifetime is that , unless they fall under the three  2010 Nehmer presumptives, the only way to claim them is if they "should have been coded" under Footnote One. He did receive the AO IHD award. And that was coded.

 

There were some denied claims on one of the rating sheets.

Was a NOD file in time on the denials, and is there an appeal in progress on them?

Edited August 4, 2017 by Berta

[Berta]

Disregard the older CUE draft because  the one I prepared and posted here today was based on the actual decision of April 18, 2007.

That decision also holds a rating sheet in the pfd (Scan 0021) of some conditions the VA denied.

Was a timely NOD filed on that decision? It was 10 years ago but I have seen a few appeals take that long.

Those denials too in the same decision might hold the basis for CUE but I suggest that you study over the CUE criteria here in our CUE forum very carefully.

 I didn't find any VA medical rationale in the PDF for those denials.

And I think the best bet is the SMC CUE I posted above today.