NOD for deceased husbands claims

[Poopsy Woopsy]

i am in an NOD for TDIU  thus asking accrued thru PTSD. The more work I do the more I find out the more I should have done or I guess my VSO. As in earlier posts, I have said that the only reason they denied the TDIU (which to me was obvious), is they denied it because of an old SSI claim for his back. I will "state" in my NOD that it should not supersede the TDIU/PTSD because I can add some presumptive info that started "Before" the back claim.. (I don't know if it will be as determinative to them, as PTSD can be elusive) Again I'm not sure thats what they even want. It seems they just want me to put in "Words" that it is not predicated on the back situation, which by the way back issues are in his VA med records as a condition as well, but I found where VA stated the back was stable. In doing all this (thru good info like you get here) I realized my husband should have been 100% for DMII. He met all the requirements for 100%. DMII it was originally claimed thru A.0. (along w CHF, ED, PN,) which I hope the new ruling as of Feb will change that. (we could not prove in country  because he was on ship, (did what you said Berta, got records asking for info stating ship etc, but they stated because of PII, I wouldn't receive such info. I do have his ship listed on the presumptive list so it all seems obvious. Do "I" have to Resubmit or do they just re-rule on the claim.  ANYWAY, back to my original point! Can and "Should" I add evidence stating proof he fits the 100% criteria for DMII. and ask for Re-consideration of DMII on presumptive or secondary grounds on the NOD??. (Or do I have the right to, (or shoud I)  resubmit it seperately, even though it was previously part of a closed claim) The AO is closed because of "No further proof" but should I not be able to re-direct his DMII on the NOD as a secondary to his PTSD instead? or even presumptive because of so much medical evidence in his VA med files. I am so determined to make them pay for what he "deserves" but I get lost with emotion, and then get lost with where I should go with all the information. What I don't understand is there is a huge amount of medical files all positive for everything claimed, so don't they have a "Duty to assist"  in getting it and figuring it out?  "Some" of the medical evidence but not much in respect to how much evidence there is, is in his C-files, so "is it" really as easy as sending "more" medical evidence that sits their right in his medical files for them to see?     I read where Berta stated not to re-state things that are obvious, so as not to assume "Ignorance" on their part or that they are not doing their job. (I realize they are just "Pawns" in the game) so some more direction would be very helpful to me. Been away for a bit because it takes such consentration with so much information,  realizing the more I find out the more work I have to do.   SOOOO afraid of making a mistake.  AND NO!!! I am too committed to this to hand it over to someone else at this point.. Except for asking verification from my VSO.

P.S. got a new printer so I could send receive or copy info now to help with any info received or replied to. Thanks everyone.. You are what grounds me!!    

[broncovet]

You posted:

Quote

Can and "Should" I add evidence stating proof he fits the 100% criteria for DMII.

Sure..if that is the benefit you are seeking!!  For Vets, they can add "new and relevant" evidence at any time a claim is pending under 38 cfr 3.156 b. 

You also posted:

Quote

which I hope the new ruling as of Feb will change that. (we could not prove in country  because he was on ship, (did what you said Berta, got records asking for info stating ship etc, but they stated because of PII, I wouldn't receive such info. I do have his ship listed on the presumptive list so it all seems obvious. Do "I" have to Resubmit or do they just re-rule on the claim.

If you count on VA to act like a 12 year old, or worse, you will rarely be disappointed.  I would show them the ship is on the presumptive list, and be thorough and resumbit, rather than "counting on" some VA employee to do their job.  

 

Further, you posted:

Quote

The AO is closed because of "No further proof" but should I not be able to re-direct his DMII on the NOD as a secondary to his PTSD instead? or even presumptive because of so much medical evidence in his VA med files. I am so determined to make them pay for what he "deserves" but I get lost with emotion, and then get lost with where I should go with all the information. What I don't understand is there is a huge amount of medical files all positive for everything claimed, so don't they have a "Duty to assist"  in getting it and figuring it out?  "Some" of the medical evidence but not much in respect to how much evidence there is, is in his C-files, so "is it" really as easy as sending "more" medical evidence that sits their right in his medical files for them to see?

This is a good reason I suggest professional representation, that is, an attorney.  

Yes, VA has a duty to assist.  Unfortunately, VA, because of the Chevron/Auer defence, gets to interpret its regulations any way they see fit.  So the VA's interpretation of "Duty to Assist" is interpreted as VA's duty to delay and deny.  

Edited February 12, 2019 by broncovet
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[Poopsy Woopsy]

Its Me Poopsy Woopsy again.. I just found some information "Specific" to my question about SSI/TDIU.. It hit the nail on the head... Don's SSI should make it easier to substantiate the claim for TDIU not make it harder to claim.. As I stated it seemed like they wanted me just to verify in words that the SSi did not trump the obvious TDIU.. Why I don't know.. seems again obvious to me. Hope i am not missing something here.   

[Poopsy Woopsy]

remember Broncovet, the claim is for  TDIU and in the NOD, because it also pertains at 100% to TDIU. It has not been given a rating just a denial through AO. Figured I could get it rated through secondary SC with additional evidence along with TDIU evidence. Because it stands on its own.. just didn't know if I could piggy back it so to say on this NOD

[broncovet]

A claim for tdiu IS a claim for increase.  Sometimes, when a vet applies for tdiu, the VA awards 100 percent, instead.  They did that to me.  There is no such thing as a "stand alone" tdiu claim, according to some recent case law.  If its important to you, I can probably cite the case law supporting (no stand alone tdiu claim) or you can do the research yourself.  Its better if I dont do all the research for you..and you learn how to research it yourself.  

[Berta]

"DMII it was originally claimed thru A.0. (along w CHF, ED, PN,)" which I hope the new ruling as of Feb will change that. (we could not prove in country  because he was on ship, (did what you said Berta, got records asking for info stating ship etc, but they stated because of PII, I wouldn't receive such info. I do have his ship listed on the presumptive list so it all seems obvious. Do "I" have to Resubmit or do they just re-rule on the claim.  "

Since his ship is on the AO list, along with the great news for Blue Waters ( which will take time- if VA appeals the Fed Court decision-  Procopio V Wilkie,) proof of him on the ship durng the Vietnam War, in the 7th Fleet ,should be sent to VA along with the NOD referring to it....if the NOD involves a denial of the DMII.

I hope you have a scanner as part of  the printer-if you could scan the DMII denial we could help more-

Cover your C file, name, address, prior to scanning it.

My personal experience wth the VA is that you have to tell them the facts of the claim like they are ,as Broncovet stated ,12 years old.

 " I read where Berta stated not to re-state things that are obvious, " not sure what I meant by that-

I have had to re- state Obvious Evidence they overlooked ,in the past, and enclose it , many times.

The denial of the DMII, CFD, etc is what we need to read...and the Evidence they used.

Did the VA make any attempt ,within the denial, to see if his ship on the AO list?

 

 

Edited February 13, 2019 by Berta

[Berta]

In your past posts you stated :

 

"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. "

So was this a formal Section 1151 DIC award?

I had a formal DIC award under 1151 from 1994 to 2009, when I proved death due to AO DMII ( misdiagnosed and never treated)  and then ,under Nehmer 2010 ,I proved death due to  AO IHD as well.(misdiagnosed and never treated)-it was the largest monetary award I ever got from VA (except for my FTCA settlement.)but it involved numerous issues.

This is why widowsd MUST fie for DIC and accrued within the first year after their spouse's death, which you did.

The only exception to that accrued regulation is if the claim falls under Nehmer.

A death due to SC AO could change everything here-if the DIC was based on 1151.

You appear to be fully eligible for accrued-and a SC death would render you CHAMPVA and DEA ( Chap 35) benefits -which I assume you do not receive now....?