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]

Also the SSI records (that is, your ssd decision which rendered hubby disabled) can help but it depends on the reasons the ss claim says you are disabled.  Are those conditions listed by SS also service connected by VA?  Now that should help you.  

However, if social security says your hubby was disabled because of his back, and he is sc for ptsd but not for the back, it wont help you.  

You need to find the social secuirty disability letter and see what conditions caused your ssd.  

Edited February 13, 2019 by broncovet

[Poopsy Woopsy]

Berta, Bronco;  I am DIC and i get champVA They said I was eligible for two things but that DIC was better. They reopened this claim on their own after saying I missed the chance to send addtional information.. Doesn't suprise me.. I couldn't function mentally for a while.. It was all quite a shock. I have been doing a lot of research (Bronco). Get a lot from here. Some days I feel like a lawyer and should get paid big bucks.  Anyway. PTSD 70% was easy but now I am just going to state that it is "As likely as NOT" that its the PTSD not the SSI (NOT SSDI) back, thus getting his TDIU. So even though they are stating the SSI is the problem.. they must concede that it isn't even SS"D"I. AND I have evidence to show progression of PTSD that started "Before"  the back SSI. The cardiologist letter that got me DIC also related the cause of death to both PTSD "AND" CHF. This is why after redirecting thinking of SSI to PTSD. I want to take the opportunity to Add "presumptive, for CHF, DMII, PN  and everything that was on the AO claim. (He also fits the 100% criteria for DMII) Would it be "Presumptive or secondary or both?? Can you do that on an NOD?? I have stacks of medical evidence, some stating "Chronic" which I know is helpful. Just not sure if NOD is the place. Finally, what happens if now with the "New" blue water ruling.. that all those medical issues are all rated For AO??  it seems so obvious the poor guy had several of the maladies on the list and became apparant at a fairly early age. What comes first the chicken or the egg? Well It will probably be years before there is a re-ruling for old claims on AO, so will move forward with TDIU and secondary or presumptive stuff. Thanks, PoopsyWoopsy 

[Poopsy Woopsy]

On 2/13/2019 at 5:10 AM, broncovet said:

Also the SSI records (that is, your ssd decision which rendered hubby disabled) can help but it depends on the reasons the ss claim says you are disabled.  Are those conditions listed by SS also service connected by VA?  Now that should help you.  

However, if social security says your hubby was disabled because of his back, and he is sc for ptsd but not for the back, it wont help you.  

You need to find the social secuirty disability letter and see what conditions caused your ssd.  

thanks Broncovet 

Social Security was given under SSI, not disability..on his back (a monetary need/really related to PTSD)  which is a condition that was also being taken care of at the VA and in his medical records. Anyway I just stated PTSD predates the Back issue..

 Well I thought I was almost done with this NOD nightmare when I realized while perusing around HADIT, I read Berta's info on CFR 4.6 / CUE. If i stated in husbands claim for PTSD that issues raised for PTSD started in BOOTCAMP with 2 deaths. shouldn't the claim take in the time starting with the evidence in service? should they have not taken that into conisderation as EED seeing how they used that evidence in giving a positive claim for PTSD. Would this be a clear CUE???

[Berta]

I thought your husband was already 70% for PTSD...? If so , they will not revisit any stressor,in my opinion, because he already had a proven stressor.

"I want to take the opportunity to Add "presumptive, for CHF, DMII, PN  and everything that was on the AO claim. (He also fits the 100% criteria for DMII) Would it be "Presumptive or secondary or both?? Can you do that on an NOD?? I have stacks of medical evidence, some stating "Chronic" which I know is helpful. Just not sure if NOD is the place. Finally, what happens if now with the "New" blue water ruling.. that all those medical issues are all rated For AO??  it seems so obvious the poor guy had several of the maladies on the list and became apparant at a fairly early age."

By early age do you mean -prior to his service?

I am re posting the Procopio info in our AO forum -as to the new Blue Water AO situation.

Since his ship is on a ship's list-(what ship was it?) and you have medical proof of his AO disabilities, I suggest you follow the advice of NVLSP and file a new claim solely on the AO basis.

 

 

[broncovet]

Unfortunately, no.  The effective date is the later of the "date you applied" or the facts found (that is, the date the doc said he was disabled).  

There is an exception to this when the VEteran applies for benefits within 12 months of discharge, and then you can get benefits up to the date of discharge.  You wont ever be given VA disability while also receiving military pay, to my knowledge.  

You also asked:

Quote

Do "I" have to Resubmit or do they just re-rule on the claim. 

Yes, you have to resubmit.  The VA NEVER pays benefits until/unless you ask for them.  There is a rule, when submitting "new evidence" which can allow an earlier effective date.  READ these over carefully to see which, if any applies to you. 

38 CFR 3.156 b "pending claim".  This means (look it up) that if you submit new and relevant evidence, which warrants reopening a "pending" claim, then you get the effective date you first applied.  "pending" means its not finally adjuticated.  Example:  You apply on Jan. 4, 2012.  You can appeal "up until" Jan 4, 2013, a year later.  Ok.  Lets say you DO file a nod.  Lets further say it goes to the BVA and that takes 4 more years.  This claim is pending all this time.  

38 cfr 3.156 C  "new and material (or relevant) service records".  This means you get the effective date you first applied.  Example:  VA denies you because THEY say, you dont have vietnam service (Vn service is required for presumptive of DMii, I thiink).   You find your service records which PROVE you were in Vietnam, such as his orders..or even orders to get OUT of Vietnam.  (To get out, he would first have to go to vietnam).  

https://www.law.cornell.edu/cfr/text/38/3.156   

This has been updated to reflect new ramp rules.  Ramp does not call it "material" evidence they call it "relevant" evidence.  Relevant is a relaxed standard vs "material".  

Edited February 23, 2019 by broncovet

[broncovet]

Poopsy:

   Dont YOU state "as likely as not".  Your doctor needs  to state that for service connection!!  Your opinion of "as likely as not" and $10 will get you a cup of coffee most anyplace.  But so will 10 bucks.  The "at least as likely as not" is part of the Caluza elements required for SC:

1.  Current diagnosis.

2.  In service event (called a "stressor" for PTSD).

3.  Doctors opinion that your "current diagnosis" is at least as likely as not due to xy event in service.  This is called a nexus.  Many VSO's think a nexus is a small car made by Toyota.