Accrued Benefits

[free_spirit_etc]

I was reading through my husband's VA claims in my spare time.... And I have a question.

When we were arguing his cancer claim -- we noticed other claims that we think SHOULD have been granted. It was recommended not to reopen or claim a CUE on them until we were done with the cancer claim.. as it could pull his c-file in all different directions.

When he died this February - the only open claim he had was for the cancer.

In regard to accrued benefits -- would the only way I could present the other claims be a CUE?

There are 3 claims:

1. Right shoulder injury -- which was claimed on his original claim at retirement (1998) in which they did find something wrong with his shoulder -- but denied the claim (RO and BVA) based on the fact his SMR did not show treatment. They said he didn't have a Nexus either -- though I am not sure what type of nexus they think you should have when you claim the disability UPON discharge --after 28 years of service. But they said there was no nexus showing that the disability the found in his right shoulder during his initial C&P exam was related to the disability he claimed at retirement. We still haven't gotten a copy of his discharge physical --to see if the right shoulder is listed on that -- but wouldn't that be a Service Medical Record. I am assuming it WOULD be listed -- as he claimed it with the VA on retirement. Could this be a CUE (presumed soundness?) --and is that the only way I could persue the claim?

2. Cervical strain - He also claimed this on retirement. SMR listed cervicle strain -- but they couldn't find a current disability --( C&P 1999 )He appealed and 2002 C&P DID find a bit of damage at C-3 c-4 -- but wasn't considered disabling enough to warrant a "current disability" (even at 0 %) -- And the VA examiner stated my husband claimed it was service related --but that the c-file didn't show that it was -- (I have no idea how he came up with this) and stated he didn't think the current nondisabling disability was connected in etioligy to the service. Then the 2003 exam he had for headaches on a Desert Storm C&P stated his headaches were CAUSED by his cervical strain c-3 c-4 --(therefore not service connected -- as they were diagnosed.

Again, when you have a neck injury in SMR -- and claim for cervical pain on retirement -- and then your neck keeps hurting -- and they keep finding that the condition is worse -- it sure looks like a nexus to me.

So could this be a CUE? - or could it be considered an INFORMAL claim to reopen cervical strain that was never adjudicated (in 2003)--and as such would STILL be pending at his death?

3. Chronic Sinutitis (yes..I saw the other thread on this). On the headache claim the examiner also stated some of his headaches were caused by chronic sinus infections -- and the examiner also noted he had several incidences in service - and that his in service x-rays had diagnosed chronic sinustitis (both SMR and C&P designated the ethmoid sinuses). Again --would this be a cue? Is that the only way it could be raised for accrued benefits? or could it be a pending informal claim for Sinus Problems -- since the VA only addressed that his headaches couldn't be granted SC because they had been diagnosed and therefore were not related to Desert Storm Illness.

Kind of odd -- Your headaches can not be Service Connected because they are caused by

1. a chronic sinus condition that was diagnosed in the service and treated repeatedly

2, the cervical strain that is in your SMRs and that you have been telling us has been hurting you since your discharge from active duty

Therefore -- we deny you service connection...

???

Free

[Berta]

I feel the main issue you have is service connected death.

There are no accrued benefits at this point except for the potential accrued service connected cancer award.

If the VA does SC his death- they will have to rate from date he filed claim to death- as to rating schudule and will most likely state the cancer was 100% P & T because it caused his death-if they determine that.

I don''t know what to think about re-opening the other claims-

or even if they could be re-opened-not sure-

If CUEs are claimed to re-open,and it could be attempted, the CUE claims MUST be based on legal error at time the CUE occurred.

Legal errors in the decisions -which would have to be poured over good to find those errors.

Then it presents the next problem-

If a CUE occurred-did it cost the veteran money- the manifested different outcome- that happened due to the CUE?

Meaning the claims would have had to be supported with evidence to award-at time of the alledged Cued decisions.

I hope my CUES I filed as a widow didnt confuse you-

the VA had evidence of my husband's eligibility for SMC consideration.

They failed to consider SMC at all.In 2 final VA decision.

My rep questioned the decisions but did not advise me to NOD.

I didnt understand SMC then (1997)

100% SC PTSD plus 100% Sec 1151 stroke,documented and rated , plus 100% Sec 1151 heart disease (NEVER rated in spite of VACO medical FTCA report )additional CUE and

-my present claim- diabetes rating as contributing to all above plus HBP rating still due under Sec 1151.(as documented in VACO medical FTCA report)

These all involve legal errors in regards to established medical evidence.

It altered the outcome of the accrued award I got.

These are CUEs that occurred in final decisions.

The evidence I sent to support was mainly all of the regs that they broke.

The medical evidence was all in his c file at time of the alleged CUE-and showed SMC should have been awarded as accrued as it was due the veteran in his lifetime.

That is the criteria any CUE claim must follow.

The older claims would have to be studied to see if the medical evidence VA had suypported the award at the time- and what legal errors the ratings or decisions contained that prevented proper award of those claims.

The re-open of my older CUE by the VA itself last year is a different issue- I hope that didnt confuse you either-

I am confused by it as well as the BVA-

The only CUE I recall at the BVA was granted about 2-3 years ago at the RO level-

or maybe one that regarding PTSD causing the veteran heart disease-

I should look into that claim but keep forgeting to find it on the BVA web site-

I think the BVA sent it back to the RO.

CUES are confusing issues -

BUT can succeed-you haver to find their legal error.

The CUE I had at the BVA was a completely non medical issue.They denied it.

It took a lawyer to get it.

Regional COunsel awarded it to me.

Edited April 28, 2007 by Berta

[free_spirit_etc]

Yes. I know the major focus of the claim should to get the SC awarded for the lung cancer.

He had medical evidence in the file on the other ones. On two of them -- by the time the medical evidence was IN the file - he was no longer claiming for them.

But it does seem pretty sucky that they can deny claims that you have xyz - and then when you claim something else -- they can deny THAT because you have xyz...without going back to award xyz.

I know I am ahead of myself here -- but I usually am...looking 50 steps down the road -- to see how this step might affect that step.

And I have to keep in mind that by the time I go through the lung cancer claim - there will be many more court decisions made that may affect past claims anyway.

Free

I feel the main issue you have is service connected death.

There are no accrued benefits at this point except for the potential accrued service connected cancer award.

If the VA does SC his death- they will have to rate from date he filed claim to death- as to rating schudule and will most likely state the cancer was 100% P & T because it caused his death-if they determine that.

I don''t know what to think about re-opening the other claims-

or even if they could be re-opened-not sure-

If CUEs are claimed to re-open,and it could be attempted, the CUE claims MUST be based on legal error at time the CUE occurred.

Legal errors in the decisions -which would have to be poured over good to find those errors.

Then it presents the next problem-

If a CUE occurred-did it cost the veteran money- the manifested different outcome- that happened due to the CUE?

Meaning the claims would have had to be supported with evidence to award-at time of the alledged Cued decisions.

I hope my CUES I filed as a widow didnt confuse you-

the VA had evidence of my husband's eligibility for SMC consideration.

They failed to consider SMC at all.In 2 final VA decision.

My rep questioned the decisions but did not advise me to NOD.

I didnt understand SMC then (1997)

100% SC PTSD plus 100% Sec 1151 stroke,documented and rated , plus 100% Sec 1151 heart disease (NEVER rated in spite of VACO medical FTCA report )additional CUE and

-my present claim- diabetes rating as contributing to all above plus HBP rating still due under Sec 1151.(as documented in VACO medical FTCA report)

These all involve legal errors in regards to established medical evidence.

It altered the outcome of the accrued award I got.

These are CUEs that occurred in final decisions.

The evidence I sent to support was mainly all of the regs that they broke.

The medical evidence was all in his c file at time of the alleged CUE-and showed SMC should have been awarded as accrued as it was due the veteran in his lifetime.

That is the criteria any CUE claim must follow.

The older claims would have to be studied to see if the medical evidence VA had suypported the award at the time- and what legal errors the ratings or decisions contained that prevented proper award of those claims.

The re-open of my older CUE by the VA itself last year is a different issue- I hope that didnt confuse you either-

I am confused by it as well as the BVA-

The only CUE I recall at the BVA was granted about 2-3 years ago at the RO level-

or maybe one that regarding PTSD causing the veteran heart disease-

I should look into that claim but keep forgeting to find it on the BVA web site-

I think the BVA sent it back to the RO.

CUES are confusing issues -

BUT can succeed-you haver to find their legal error.

The CUE I had at the BVA was a completely non medical issue.They denied it.

It took a lawyer to get it.

Regional COunsel awarded it to me.

[Hoppy]

"But it does seem pretty sucky that they can deny claims that you have xyz - and then when you claim something else -- they can deny THAT because you have xyz...without going back to award xyz."

If xyz is not previously service connected then it is not sucky. It would be sucky if xyz had been service connected. You have to get xyz service connected inorder for them to not be able to site xyz as the reason for the denial of the new condition. They will not go back and service connect a previous denial unless you give them a reason, such as new and material evidence or you win on appeal. Since you allowed xyz to close you will have to come up with a way to service connect them. I do not know what to tell you at this time.

I had the same situation but xyz was service connected on appeal. Thus, the new condition was also later service connected.

[free_spirit_etc]

Hoppy,

The reason the cervical strain was not service connected was that the VA had said there was no evidence of a current disability - though my husband had SMRs showing he had injured his neck and complaints of neck pain. It is hard to service connect something they deny is in existence. He did appeal -- but the BVA also said there was no shown cervical condition.

But when he claimed for headaches -- THEN they decided he had a cervical condition which was causing his headaches. To me this WAS new and material evidence... that he had a CURRENT cervical condition. I thought the VA was supposed to consider a claim for ALL claims that are reasonably raised...whether the veteran diagnosed them properly or not. So though he was claiming for headaches --the fact that they attributed his headaches to the cervical condition they denied existed before should have been new and material evidence to grant the previous denied cervical condition. He had already satified the other prongs -- Entered the service presumed sound -- had a documneted neck injury in SMRs -- spent 28 years in the service --and claimed cervical condition prior to retirement. He was just lacking the current disability prong. Once they determined he had a current disability for a claimed condition - it should have been used to grant the condition, rather than deny another.

Free

"But it does seem pretty sucky that they can deny claims that you have xyz - and then when you claim something else -- they can deny THAT because you have xyz...without going back to award xyz."

If xyz is not previously service connected then it is not sucky. It would be sucky if xyz had been service connected. You have to get xyz service connected inorder for them to not be able to site xyz as the reason for the denial of the new condition. They will not go back and service connect a previous denial unless you give them a reason, such as new and material evidence or you win on appeal. Since you allowed xyz to close you will have to come up with a way to service connect them. I do not know what to tell you at this time.

I had the same situation but xyz was service connected on appeal. Thus, the new condition was also later service connected.

[Hoppy]

free,

I remember the cervical situation now. We kicked this around some time ago. Your right there is a contridiction that needs to be explained. It sound like the logic behind the denial is not properly explained and does not meet VA standards. I do not know if bringing this flaw to the attention of the RO would cause them re-open a closed claim. Maybe if you got a doctor to read the adjudication statements and write a opinion that in his medical expertise the adjudicators presented a situation that is medically impossible. Or get a shrink to write a report that the logic in the decison indicates that the adjudicators suffer from a cognitative disorder. Submit it as new and material medical evidence. That might twist their little brains.

Here is more on the sinusitis.

I am confused about one thing. I have heard that when a veteran died the claim also died. I am not really familiar with the CFR. It is just something I heard.

You mentioned that you read the other sinusitis post. In that I suggested that establishing an allergic connection was my intended goal. This is because I had found BVA cases where they recognized the chronic nature of allergies. I had been diagnosed with the allergic manifestation of my condition while on active duty.

I had not seen any such BVA policy regarding infectious conditions. You mentioned that there were notations of infections in association with the sinusitis. If you could establish a condition related to service that was causing the infections it might qualify as new and material. I have read that there are medical conditions that make a person susceptible to infections. I do not know the specifics. It might take a doctor to review the SMR to see if any such situation existed. You could request a C&P However, I do not think the RO would schedule a C&P to go on such a fishing expedition for an underlying condition.

In my claim I argued that an underlying condition (principal) was known to exist while I was on active duty. This principal was called the immune response. I argued that in my case it is not only chronic but permanent with no known cure. The doctors had already ruled out allergic desensitization in my case.

The immune response is of such permanence that if a person who was fifty years old became sick and needed penicillin, a doctor would not give him penicillin if he told the doctor he had an allergic reaction to penicillin when he was twenty years old. This is probably why the BVA recognizes the chronic nature of allergies. It is my recollection that some of the conditions that make a person susceptible to chronic infections are also permanent.

Edited April 30, 2007 by Hoppy

[free_spirit_etc]

Thanks Hoppy. The claim does in essence "die" with a veteran. However, the spouse is entitled to accrued benefits -- benefits which were due to the veteran, or should have been granted to the veteran, but were not. Therefore I think the decision has to be made with the information already in the file at the time of the veteran's death. I can present new evidence for the service connection for lung cancer for DIC - but if the case is decided (in his favor) based on new evidence (and not evidence of record) I would get DIC - but no accrued benefits.

As far as the other cases are concerned - we discovered the errors when we got a copy of his VA medical files when fighting the cancer claim -but chose not persue them until after the cancer claim was adjudicated -- as we didn't want to slow that down.

As he did not reopen them -- they are in essence closed. I cannot reopen them with new and material evidence -- but I can argue something like a CUE - or possibly that an INFORMAL claim was created when the VA recieved evidence from the C&P that a previously submitted claim now had the required evidence of current disability (cervical) and that a INFORMAL claim for a chronic sinus condition was opened when the C&P examiner noted that his headaches were caused by chronic ethmoid sinutistis - and also noted that the SMRs showed consistent treatment for sinus infections throughout his service career, as well as a dignosis of chronic ethmoid sinutitis from x-ray reports of his sinuses. So the C&P examiner already pretty much wrote the nexus --connecting chronic sinus problems to the service -- the VA just missed it --as they were just focusing on the fact that the headaches could not be Desert Storm related, as they were a "diagnosed" condition.

I think I might have an argument that these were both Informal Claims that were raised by the evidence - but not adjudicated, and thus still pending at the time of his death.

As far as the shoulder claim -I think the only route to go on those would be a CUE claim -- and that would have to be based on the presumption of soundness - That he entered the service presumed sound -- that upon retirement he claimed a shoulder injury --that they FOUND a current disability from his shoulder injury --but denied SC because they said the SMRs did not show a shoulder injury and there was no nexus between his shoulder injury and his period of service. It would seem like if you enter the service presumed sound -- and serve 28 years -- and claim a shoulder injury UPON discharge -- you would not need an actual nexus. They confirmed his shoulder WAS injured.

Again, it might be best to wait until I get the DIC thing under my belt -- but I know it also takes a HUGE amount of time to figure these things out... so I am making notes.

As far as back pay goes -- I don't think I would actually come out ahead by very much - (because of waiving the retirement pay). But I do know he would want me to pursue it for other reasons.

He also claimed asking for dental treatment at retirement -- you know the ONE TIME treatment you are supposed to get after discharge if you didn't get treatment within 90 days of your discharge (they are supposed to fix your teeth before you get out --or fix them one time after you get out). They bounced that back and forth between the RO and the BVA for YEARS -- trying to decide if his dental condition was compensible. He wasn't asking for compensation -he was just asking for his dental treatment he was SUPPOSED to get. But they kept so focused on denying him compensation --they didn't ever grant him the treatment...even though he pointed out that he was asking for treatment, not compensation. This was definately an error -- but I don't think there is anything that can be done about that now - as he can no longer get the treatment.

Free

free,

I remember the cervical situation now. We kicked this around some time ago. Your right there is a contridiction that needs to be explained. It sound like the logic behind the denial is not properly explained and does not meet VA standards. I do not know if bringing this flaw to the attention of the RO would cause them re-open a closed claim. Maybe if you got a doctor to read the adjudication statements and write a opinion that in his medical expertise the adjudicators presented a situation that is medically impossible. Or get a shrink to write a report that the logic in the decison indicates that the adjudicators suffer from a cognitative disorder. Submit it as new and material medical evidence. That might twist their little brains.

Here is more on the sinusitis.

I am confused about one thing. I have heard that when a veteran died the claim also died. I am not really familiar with the CFR. It is just something I heard.

You mentioned that you read the other sinusitis post. In that I suggested that establishing an allergic connection was my intended goal. This is because I had found BVA cases where they recognized the chronic nature of allergies. I had been diagnosed with the allergic manifestation of my condition while on active duty.

I had not seen any such BVA policy regarding infectious conditions. You mentioned that there were notations of infections in association with the sinusitis. If you could establish a condition related to service that was causing the infections it might qualify as new and material. I have read that there are medical conditions that make a person susceptible to infections. I do not know the specifics. It might take a doctor to review the SMR to see if any such situation existed. You could request a C&P However, I do not think the RO would schedule a C&P to go on such a fishing expedition for an underlying condition.

In my claim I argued that an underlying condition (principal) was known to exist while I was on active duty. This principal was called the immune response. I argued that in my case it is not only chronic but permanent with no known cure. The doctors had already ruled out allergic desensitization in my case.

The immune response is of such permanence that if a person who was fifty years old became sick and needed penicillin, a doctor would not give him penicillin if he told the doctor he had an allergic reaction to penicillin when he was twenty years old. This is probably why the BVA recognizes the chronic nature of allergies. It is my recollection that some of the conditions that make a person susceptible to chronic infections are also permanent.