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Ann Bracey

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"Why would effective date go at least back to 2009 or 2010? Thank you!"

I hope others will read the BVA denial (link above) and comment.

In part it states:

 

“The appellant filed a request to reopen the claim for DIC in January 2010 based on service connection for the cause of the Veteran's death. The evidence received since the November 2000 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim for DIC.” “The RO reopened the DIC claim in an October 2010 decision and granted the appellant DIC based on service connection for death of the Veteran with an effective date of January 27, 2010. The appellant filed timely notice of disagreement and Form VA-9 to appeal that determination.” The appellant's next submission was a written statement requesting to reopen the previously denied claim for DIC was received in January 2010 at the RO. Along with the new claim in January 2010, the appellant also submitted the autopsy report dated May 2000, the month of the Veteran's death. The cause of death listed on the autopsy report is "widely metastatic small cell undifferentiated carcinoma of the right lung." Based on the autopsy report, in October 2010, the RO granted DIC for service connection for death as a result of the Veteran's presumed exposure to Agent Orange in the Republic of Vietnam and subsequent development of lung cancer, a condition listed in 38 C.F.R. § 3.309. The effective date was January 27, 2010, the date the appellant submitted the request to reopen the DIC claim.



 

“In the Board hearing in August 2016, the appellant testified that she had not submitted the autopsy report in 2000 because either it was not produced at that time, she was not asked for it, or she did not have it. The evidence of record shows that the RO contacted the appellant directly via letter in August 2000 and requested a copy of the autopsy report. The death certificate dated May 15, 2000 indicates that an autopsy had already been completed and the findings were available prior to completion of the cause of death on the certificate. The autopsy report states that the appellant authorized the autopsy, which was completed on May 13, 2000. “

“The Board finds that an effective date earlier than January 27, 2010 for the appellant's award of entitlement to DIC is not warranted. The November 2000 rating decision was final. Thus the appropriate effective date for the entitlement to DIC for the appellant is the date of receipt of the new claim in January 2010. 38 C.F.R. § 3.400(c)(2) (2017).”

(quotes from the BVA decision in this thread)

Neither the RO nor the BVA had the autopsy prior to January 2010.They had no way of   knowing it revealed " widely metastatic small cell undifferentiated carcinoma of the right lung." Based on the autopsy report, in October 2010, "the RO granted DIC for service connection for death as a result of the Veteran's presumed exposure to Agent Orange in the Republic of Vietnam and subsequent development of lung cancer, a condition listed in 38 C.F.R. § 3.309."

I am assuming the death certificate was not detailed enough for them to SC his death just with the Death Certificate or the mention of an autopsy.

On my husband's death certificate, there was nothing there to Service Connect his death.

His autopsy however proved his 1151 claim and my wrongful death case (FTCA) proving he had undiagnosed and untreated IHD and a improperly disagnosed and improperly treated Stroke, that happened because his many ER trips with transcient ischemia of the brain had been inproperly diagnosed and treated with the wrong medications.

They awarded DIC under 1151. My daughter Insisted I go through all of his med recs again- she was in the Military at the time and kept bringing up that I needed to re open because she was sure Dad had DMII from AO and it had 'more than likely" been misdiagnosed too. Finally I re opened the claim. I had discovered she was right.The DIC was changed to death directly due to his service.I then received all of the ancillary benefits that come with a Direct SC death. 

My long point here is that, without the autopsy I would have never been awarded direct SC death. ( or FTCA and 1151 award) I had to decifer 6 pages of it, all sorts of heart and brain slides-etc.And the toxicology report revealed only VA meds in his system. He didnt drink or take drugs.

The reason he was autopsied was that he was an Organ Donor.

They (VA) got 12 copies of it and kept failing to consider it as well as the settlement I made with the USA for wrongful death until I called General Counsel, who in turn ordered them to pay me DIC.(1151 DIC)

The BVA gave you the date they received the autopsy as the date they were aware of the actual cause of your husband's death.It held far more info than any death certificate ever holds.

That is why I believe the BVA decision is correct but others here might see this differently.

As far as I know you did not appeal with the Court of Veterans Appeals.....because you would have heard from vet lawyers if you did- 

Have you attempted to  or would you be willing to send some vet lawyers a link to your BVA decision? Tell them you have re-opened the claim and have filed a NOD.

Matt Hill and Chris Attig are members here and great vet lawyers.Also CCK is great and there are many others .

And hopefully others will chime in on the BVA denial as well as maybe suggesting a vet lawyer they had a good experience with.

 

 

 

 


 

 

Edited by Berta
to explain better
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