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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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Berta

DIC and Corona deaths of veterans

Question

Posted (edited)

As you all know, the Corona virus has caused deaths of veterans, as well as VA employees.

https://www.militarytimes.com/news/pentagon-congress/2020/04/10/va-reports-200th-death-from-coronavirus/

https://apnews.com/2e86b87b7e14a56a95518e8fb4127a4b

https://www.militarytimes.com/news/2020/04/24/veterans-affairs-records-400th-death-from-coronavirus/

If a primary cause of death on a death certificate is the Corona virus, then a widow/widower might have to prove that a contributing cause of death ,listed on the death certificate,

is due to the service of the veteran.

In a case whereby the veteran has had a long standing SC , that is listed as  contributing to death, on the death certificate ,or in a case of the veteran with 100% P & T SC for 10 continuous years, that might not be an issue for a proper grant of DIC.

The medical news suggests strongly that anyone with diabetes, heart disease, lung problems, HBP , and/or  obesity and particularly if they are over 50 years old, is at a high risk, if they get the virus, ......to die from it.

When my husband died, the coroner asked me what his diagnosed conditions were. At that time I had no idea of the malpracticed conditions, but told him wha tI could.

As a organ donor he was autopsied and the autopsy revealed , by then, all of the proof of my FTCA charges, and the 1151 claim he had pending at death that I became the claimant on.

I am concerned about how VA will handle a death certificate if it states the Virus as primary cause but might not state the secondary and contributing  causes of death,properly.

The survivor in that case will need a strong IMO, and of course if an autopsy is done, that will be very probative evidence in some cases, to garner DIC.

Since  family members are not allowed to be in any hospital where their veteran might be a Corona patient, it is highly unlikely that there would be anyone to advise the coroner or Medical examiner of the disabilities the veteran had in their lifetime, if they die while being treated. That is an unusual facet of the Conora situation, and medical personnel are so overworked at VA and private hospitals , that these deaths certificates might not be very helpful for a DIC claim.

Many deceased virus victims are still  not even buried. 

 

 

 

 

 

Edited by Berta

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Ms berta it would be interesting to know about this...but seems from the potus thinks  (President Trump)I think he would agree to add this coronavirus to the list for veteran widows to get DIC if this coronavirus is the cause of their death.

I mean its hard to protect everybody from this horrific virus  with no found vaccine to combat it. 

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I think if a family member was in a VA nursing home and got Corona virus and died, its probably the fault of the nursing home.  Thus, you should consider an 1151 claim.  

In a similar way, if you went to the VA hospital for treatment and would up with corona virus 2 weeks or so later, then the hospital visit is highly suspicious of causing the virus.  

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Posted (edited)

These are good points you both have made.

My husband's 1151 claim, filed months before he died, covered this regulation to the letter , as to 

38 USC 1151 (a), (1),(A)

My FTCA case also fell under the "compromise. settlement statements ( FTCA) but only in this way:

I and General Counsel negotiated the "Offset amount".I am glad I didnt have a lawyer because lawyers often accept the entire settlement as the offset, without even challenging that...specifically on death claims from widows. In that case a widow might not receive DIC for Decades.

I was refunded the Offset by VA, (after contacting OGC because my RO refused to address my letters on it)* because I also successfully proved direct SC death due to malpracticed AO IHD, AO DMII, and also have a current claim on death due to AO HBP. I posted more HBP AO awards from BVA yesterday in the AO forum.

* My prime evidence was a legal statement BVA made l in a case I had that was rendered Moot by the BVA, because I had won it by then, at the RO level.

The veteran (or their survivor )who got Corona at a VA would have to prove that is where they got it and how they got it due to VA Negligence.They would need an IME/IMO as well in my opinion.

Unfortunately I already feel the VA has already come up with an excuse...like maybe the staff did not have adequate PPE, or maybe the veteran was misdiagnosed with the flu, etc etc etc....or maybe just that our nation was not ever prepared for something like COVID 19.

 

 

"38 U.S. Code § 1151. Benefits for persons disabled by treatment or vocational rehabilitation
U.S. Code

(a) Compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran’s willful misconduct and—
(1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was—
(A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or
(B) an event not reasonably foreseeable; or
(2) the disability or death was proximately caused (A) by the provision of training and rehabilitation services by the Secretary (including by a service-provider used by the Secretary for such purpose under section 3115 of this title) as part of an approved rehabilitation program under chapter 31 of this title, or (B) by participation in a program (known as a “compensated work therapy program”) under section 1718 of this title.
(b)
(1) Where an individual is, on or after December 1, 1962, awarded a judgment against the United States in a civil action brought pursuant to section 1346(b) of title 28 or, on or after December 1, 1962, enters into a settlement or compromise under section 2672 or 2677 of title 28 by reason of a disability or death treated pursuant to this section as if it were service-connected, then (except as otherwise provided in paragraph (2)) no benefits shall be paid to such individual for any month beginning after the date such judgment, settlement, or compromise on account of such disability or death becomes final until the aggregate amount of benefits which would be paid but for this subsection equals the total amount included in such judgment, settlement, or compromise.
(2) In the case of a judgment, settlement, or compromise covered by paragraph (1) that becomes final on or after the date of the enactment of this paragraph and that includes an amount that is specifically designated for a purpose for which benefits are provided under chapter 21 or 39 of this title (hereinafter in this paragraph referred to as the “offset amount”), if such judgment, settlement, or compromise becomes final before the date of the award of benefits under chapter 21 or 39 for the purpose for which the offset amount was specifically designated—
(A) the amount of such award shall be reduced by the offset amount; and
(B) if the offset amount is greater than the amount of such award, the excess amount received pursuant to the judgment, settlement or compromise, shall be offset against benefits otherwise payable under this chapter.
(c) A qualifying additional disability under this section shall be treated in the same manner as if it were a service-connected disability for purposes of the following provisions of this title:
(1) Chapter 21, relating to specially adapted housing.
(2) Chapter 39, relating to automobiles and adaptive equipment.
(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1124, § 351; Pub. L. 87–825, § 3, Oct. 15, 1962, 76 Stat. 950; Pub. L. 91–24, § 3, June 11, 1969, 83 Stat. 33; Pub. L. 94–433, title IV, § 404(19), Sept. 30, 1976, 90 Stat. 1379; Pub. L. 98–223, title II, § 213(1), Mar. 2, 1984, 98 Stat. 46; renumbered § 1151 and amended Pub. L. 102–83, §§ 4(a)(1), 5(a), Aug. 6, 1991, 105 Stat. 403, 406; Pub. L. 104–204, title IV, § 422(a), Sept. 26, 1996, 110 Stat. 2926; Pub. L. 106–419, title III, § 303, Nov. 1, 2000, 114 Stat. 1853; Pub. L. 108–454, title III, § 304(a),(c), Dec. 10, 2004, 118 Stat. 3611.)"

 https://www.law.cornell.edu/uscode/text/38/1151

A 1151 death does not bestow Peace with Honor.It means the very system that was created by your service, the VA, didn't have a clue on how to treat you properly, medically, with treatment consistent with the standard medical community.

It is far better if a Covid surviving spouse can prove that a SC condition directly contributed to the veteran's death from Covid. That garners DIC and Peace with Honor.

If I had a veteran spouse who died due to the virus, and was under VA's health care,  I would file under both

premises; 1151 and also direct SC, if the VA medical evidence and VA regulations, supported that.

Some states will revise a death certificate, if the Death Certificate did not add a contributing cause of death as an established SC disability.

The Medical Examiner would need medical proof of that.

 

Edited by Berta

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Well in a case where a veteran contacts the coronavirus  while under VA Care  and the veteran never had these coronavirus symptoms before getting the VA Care   Is ;it the VA Responsibility to protect this Veteran  and if he contacted this coronavirus while in the VA Care  and died from this virus   looks like the burden of proof falls on the VA And not his Widow?

I can only imagine that VA WILL COVER THEM SELF IF ANY THING LIKE THIS HAPPENS  AND i'M FAIRLY SURE THEY DO COVER THEMSELF REAL FAST WHEN THINGS LIKE THIS DOES HAPPEN

iT PROBABLY HAPPENS MORE OFTEN THAN NOT..WE JUST DON'T KNOW ABOUT IT

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Posted (edited)

I agree- look at the Legionnaire's disease fiasco-

https://www.legionnairesdiseasenews.com/2019/01/legionnaires-kills-15th-illinois-veteran-since-2015/

Of the minimal Legionnaire's cases at BVA , I have not found any awarded yet under 1151.

The problem with the Covid virus, like Legionnaires, often is that it recoverable from, with no known ratable disability as a consequence of those diseases.

However we do not have enough medical info yet from the vast medical input into this recent disease, to even determine, if there would be  additional disabilities present,  solely due to the virus, after a recovery.

1151 and FTCA depend on medical outcomes due to Proven VA negligence.....meaning additional disability or death directly due to VA medical malpractice.

 

 

 

Edited by Berta

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      The VA DRO denied my claim for an earlier effective date for my sleep apnea. They originally denied it in 2008 but granted it in Nov 2019 secondary to my GERD. I was rated for GERD in 2001. So I had it in 2008. I have attached the 2008 denial, 2018 approval, and the NOD SOC. All of my medical files and the medical articles and VA Citations referenced were in existence in or before Jan 2008. The only new items were the NEXUS letter from Dr Bash and a few extra buddy letters. The original denial states that my medical records show no diagnosis or treatment and only isolated complaints of symptoms. The denial does not even list my wife's or my lay statements as evidence reviewed. I have symptoms listed numerous times in my SMRs:

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      b. Physical exam dated 24 Jan 79 listed frequent/severe headaches" dizziness, and
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      e. Admitted to hospital 05 Aug 86 for chest pains and anxiety.
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      h. Physical exam dated 07 Oct 91 listed frequent/severe headaches
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