Question???

[Ann Bracey]

Every time I am on this site I forget to ask this question. When my husband was diagnosed with the condition in 2003 and died from 2010, he was totally mentally as well as physically unable to file a VA Claim as well as stay on his job. Had I not inquired and pushed for assistance from the VA it would have never happened!  Due to the severity of his illness and inability to do these things would the VA not have taken this into consideration when first denying claim for service connection??? Would really like some replies!

Thanks!!

[Buck52]

When a Veteran us unable to file a claim on his own such as your late hubby   then another person needs to step up such as yourself or  hire Veterans service Officer/Attorney/Claims Agent. to file his claims. (just need him to sign the POA Document.)

What was your hubby service connected for?

Also do you get DIC Payments?

Now if your hubby was denied ?  we  need to know the bases and reason of his denial? we need to know if your hubby was service connected for injury or diseases? what was the %? 

if not you need his STR's and all of his medical records /C-FILE  going back at least the 10 years.

We can't make any promises but this is a start.

Ms Berta maybe the one to help you out more than most of us , she filed her deceases hubby's claims and won.

Edited January 26, 2019 by Buck52

[Berta]

No, I have already tried to help Ann Bracey.I have nothing else to offer.

The  many past posts regarding her issues are here:

https://community.hadit.com/search/?q=Ann Bracey

Perhaps a lawyer could do something with the claim she had but I felt the BVA decision was solid and she apparently did not appeal to the CAVC.

I dont even think it could be re-opened- 

she asked today:

"Due to the severity of his illness and inability to do these things would the VA not have taken this into consideration when first denying claim for service connection???"

No , because the denial could have been appealed.

The BVA decision that you received could have been appealed.

Buck, please read the past posts in the search feature.

 

[Berta]

"Ms Berta maybe the one to help you out more than most of us ,

she filed her deceases hubby's claims and won."

That is not quite correct-

I continued my husband's 2 claims he filed in his lifetime.I also was eligible for accrued ( still am).

All the other claims I have filed ( 3 or 4 CUEs pending) derived from established evidence due to his 2 original claims.

AO DMII award, AO IHD award, 1151 100% P & T Stroke award, SMC CUE award, multiple CUes awarded in the 1998 DIC decision, some pending.1151 HBP award 2015

His original 1151 claim , that he filed, in his lifetime , along wth his request for increase in his 30% PTSD were all resolved, They awarded 100% P & T  for the PTSD 3 years after he died.

My husband, when he filed the 1151 , dictated it to me- I still have it- he was declared 100% P & T back to 3 years before he filed the PTSD claim. EED Nov 1991, claim filed 1992

He was declared 100% P & T by the stroke in his lifetime at a C & P exam.And b 3 VA doctors. 

My husband had not only the 100% SC PTSD but significant brain damage not only from the Stroke that VA caused but also from the malpractice that led up to it.His malpracticed  AO IHD EED was 1988 (Nehmer) 

Claims have to be filed by the veteran or their POA or their spouse acting for them ( as I typed his dictation for the 1151 claim and made sure we had copies, and he signed it and I mailed it.He could no longer use a PC. I felt the ending statement was too dramatic-but by then he was very angry and told me to leave that statement in.He won, after he died,  on every charge he made except one-they never admitted to malpracticing on hi s PTSD but after the RO got his 1151, everything in that respect changed-and he finally got some good PTSD care.

The VA does not excuse any vet from not filing a claim DUE to their incapacitations.

VSOs will help do that and in Many cases here at hadit, the spouse helps them file the claim and then the spouse will help do , as  in my case, support it with evidence, after my husband died.These 2 claims Rod had- were not denied in his lifetime, and I already mentioned here he had SSDI first solely for the stroke, then upon reconsideration, SSDI solely for the PTSD, but were still pending when he died, as the VA had failed to obtain those critical SSDI records in his lifetime....and could have.In any event I made sure they got them after he died. So you have a Vietnam combat vet with evidence in their lifetime  of 2 100% ratings, and we did not even know he had IHD, and DMII, as well a SMC S, and my recent decision states his 1151 HBP contributed to his death as well .

But my husband had enough brain power left to know of two major medical screw ups the VA made by then and he felt ( he had helped vets wth claims before he had the stroke ) that he even said it was "as likely as not" the VA had made other significant medical errors in his care.

 

Maybe some lawyer out there can perform a Miracle for Ann. I sure can't.

 

 

 

 

 

To add many here recommended  the list of lawyers NOVA and I believe I recommend Chris Attig at some point- but I realised that it would be impossible to get over the BVA denial-unless some lawyer had a very unusual way to do that-

also this comment came from a fairly new member- we dont know know the results of their offer to help:

"Hey Ann,

I be happy to review your claim for a CUE claim. Do you have the CFILE?  I found one yesterday in a veteran's file that five attorney offices missed prior to me taking a look at it. Just let me know. Review is free of course and an extra pair of eyes can never hurt. Happy Holidays."

Member VAadvocate 3 posts November 20 2018.

I believe someone suggested contacting asknod as well.

 

 

 

 

 

Edited January 26, 2019 by Berta

[broncovet]

Without reviewing the entire cfile, I cant opine whether or not a cue, nod, reopen, etc will succeed.  Its been my experience that, often the arguement the Veteran thinks will win the claim ultimately winds up being discarded by an attorney, and he wins the claim with an alternative arguement that the Veteran was unaware of.  

In other words, if you permit an attorney to view your cfile, they can often identify an arguement that winds up winning.  You wont know that until you have an attorney review your file.  

Based on what you posted, however, I concur with Berta.  In general, the effective date of the claim will not be earlier than the date filed.  (Exception:  If you file within a year of exit from service).  The VA does not award benefits UNLESS the Veteran applies.  

There may be an exception in the event of a mental disorder.  Example:  The Veteran applies for benefits for physical disabilities, but is unaware of mental heallth disorders.  The reason is that a hospitalization or doctor exam CAN be used as an inferred (informal) claim for INCREASE.  But you dont get benefits you have not applied for.  Some Vets argue "they did not know" about VA benefits, because "no one told them".  Its not the VA's responsibility to inform you of each benefit you may be eligible for: the burden is on the Veteran to identify and apply for the applicable benefit.  In other words, ignorance of the law is no excuse.  Think about it.  "Gee, I didnt know it was illegal to rob a bank and kill the security guard."    Ok, well since you didnt know about the law, you are excused from prosecution.  That dog wont hunt.  

If a Veteran is too sick to apply, then a family member or friend can apply for him, or get him a representative, provided that, the applicable POA is signed by the VEteran.  Even a Vetran declared mentally incompetent, has a right to decide whether or not he chooses to apply for benefits.  You see there ARE downsides to applying for VA benefits.  An important one is you give up any semblance of privacy, as the VA will know more about you than your mother does by the time you win benfits.  Some people dont think its worth this invasion of privacy for the potential benefits they may receive.  I get that completely.  While I chose to "open up my entire medical record" to literally millions of VA employees and NON VA employees (such as VSO's, attorneys, and judges), I can understand that some people may not be willing to tell the VA intimate details of their life in exchange for "a chance" they may win benfits. (no guarantee).  

Edited January 26, 2019 by broncovet

[Berta]

If anyone is willing to read all of Ann' posts, scattered in many different topics, at hadit ,to include the BVA denial, that appears not to have been appealed to th e CAVC at all , they will understand that it is highly unlikely she would receive any more DIC , which she already gets.