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

[Hoppy]

Presumptive chronic disabilities are within 38 USC 1112 and must have been manifested to at least 10% (by medical evidence) within the first year after discharge- Maybe this applies to the shoulder claim.

If it is not a presumptive chronic disability then you might have to show continuity of treatment to establish a pattern of chronicity. Disabilities not shown as chronic in service must show continuity of treatment. Disabilities that are shown as chronic in service or by continuity "can" be rated if they degrade at a later date to a ratable level of severity. In my angioedema claim I had to address this issue or it would not have automatically been SC'd even though I was diagnosed with an allergic manifestation of the disease in-service. I got a doctor to write a report that addressed the issue favorably for me as advised by Alex and Clark Evans. Additionally, his report ruled out any way of determining an inter current post service injury that was responsibility for the increase in severity.

I would expect that the VA would question why a shoulder injury that had not been treated in the service got worse after discharge. There is a lot more to it than the presumption of soundness. Orthopedic conditions can change overnight due to a subsequent injury. I am sure the VA will take steps to protect themselves from compensating orthopedic conditions that are not shown to have a solid connection to service.

This is where diagnostic terms come into play. They rely heavily on diagnoses and unless there were diagnostic terms in the SMR or you provided them with in-service and post service diagnoses that suggested a connection I doubt they would even schedule a C&P. They are required to read the SMR and they ask you to submit any additional evidence. However, they do not figure everything out for you. I can not remember the exact case. However, there is case law that precludes any requirement that the VA go on "fishing expeditions" to develop evidence. I suspect that "Shoulder Injury" is not sufficiently specific diagnostic terminology to get the RO involved. If more specific diagnostic terminology was used in service and post service it would be important to know this.

People have been talking about generic claims. I would strongly suggest that you pay close attention to diagnostic terms. A generic claim will only work if the diagnostic terms are there for them to see. Otherwise you have to get a doctor to explain to them the logic behind your claim.

[free_spirit_etc]

I can see your point on the diagnosis. IS the discharge physical part of your SMR's? We still haven't gotten a copy of that yet. But he filled out the VA claim PRIOR to discharge -- He had a C&P exam that stated he had limited range of motion -but the x-ray was negative. A later C&P stated he had osteoarthritis in both shoulders - greater on right than left. He reported to the VA that the injury had occured in 1987. He does show treatment for pain in his arm in 87 in his service records -- with pain on full extension -but they attributed it to his elbow -- though stated there was no trauma.

I don't think the shoulder injury would classify under the one year presumptive rule. I think it would have to be present at dischage or require a medical nexus connecting it to an in-service occurance.

I understand that they do not have to go on fishing expeditions. I also understand that certain standards have to be met. But once again, it would seem to me that if you report pain in your shoulder BEFORE you are discharged -- and they do find you have restricted movement in that joint - it wouldn't seem like a great leap to figure that it more likely than not started during your 28 years of service. Maybe I am missing something.

Free

Presumptive chronic disabilities are within 38 USC 1112 and must have been manifested to at least 10% (by medical evidence) within the first year after discharge- Maybe this applies to the shoulder claim.

If it is not a presumptive chronic disability then you might have to show continuity of treatment to establish a pattern of chronicity. Disabilities not shown as chronic in service must show continuity of treatment. Disabilities that are shown as chronic in service or by continuity "can" be rated if they degrade at a later date to a ratable level of severity. In my angioedema claim I had to address this issue or it would not have automatically been SC'd even though I was diagnosed with an allergic manifestation of the disease in-service. I got a doctor to write a report that addressed the issue favorably for me as advised by Alex and Clark Evans. Additionally, his report ruled out any way of determining an inter current post service injury that was responsibility for the increase in severity.

I would expect that the VA would question why a shoulder injury that had not been treated in the service got worse after discharge. There is a lot more to it than the presumption of soundness. Orthopedic conditions can change overnight due to a subsequent injury. I am sure the VA will take steps to protect themselves from compensating orthopedic conditions that are not shown to have a solid connection to service.

This is where diagnostic terms come into play. They rely heavily on diagnoses and unless there were diagnostic terms in the SMR or you provided them with in-service and post service diagnoses that suggested a connection I doubt they would even schedule a C&P. They are required to read the SMR and they ask you to submit any additional evidence. However, they do not figure everything out for you. I can not remember the exact case. However, there is case law that precludes any requirement that the VA go on "fishing expeditions" to develop evidence. I suspect that "Shoulder Injury" is not sufficiently specific diagnostic terminology to get the RO involved. If more specific diagnostic terminology was used in service and post service it would be important to know this.

People have been talking about generic claims. I would strongly suggest that you pay close attention to diagnostic terms. A generic claim will only work if the diagnostic terms are there for them to see. Otherwise you have to get a doctor to explain to them the logic behind your claim.

[Berta]

Free- I copied what I had posted before to not to confuse this issue:

"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"

I am basing this on that fact that he had the cancer claim pending when he died-

did he have other claims pending too when he died?

If the cancer claim succeeds-and you have re-opened it- there should be accrued benefits due to you -equaling whatever the veteran -had he lived- would have gotten in compensation for the cancer.

And you are right- based on the medical evidence in the c file at time of death.

The direct SC claim due to cancer is a separate issue and can be supported by additional evidence.

You mentioned retirement pay -I dont know if you mean you are eligible for SBP?

Was he 20 years or more service retired?

If so please read my post under SBP and DIC.

[free_spirit_etc]

Berta - Yes. He had a cancer claim pending with the VA at the time of death. So my understanding is that in order to get accrued benefits due to the cancer - they would have to grant the SC based on the evidence in the record at the time of his death. Then I would be paid what he would have recieved back to his filing date.

For the DIC -- I understand that I can send additional evidence to establish service connnection. But if that is granted -- but the additional evidence was needed to SC his cancer (i.e. NOT in his file at the time of death) then I would get DIC and no retro.

He was retired from the military with 28 years in. But I didn't qualify for SBP. I think you can only add a new wife to SBP IF you had previously enrolled your previous wife. Since he did not enroll his wife at his time of retirement -- then he couldn't enroll any subsequent wives.

He was getting divorced at the time he retired. Actually he was TRYING to get divorced for much longer than that. They had already been living apart for two years...and she was living with her boyfriend. But she did EVRYTHING she could to prolong the divorce so they would be married the magical 10 years that allowed her a chunk of his retirement pay.

And she succeeded. The last court date -- SHE "forgot" a document that needed to be notarized. She FINALLY produced it 13 days AFTER his retirement for the divorce to be granted. They had quite a fight over SBP -- but as she was already getting 18 percent of his retirement pay - he sure didn't want to pay another 6.5 percent to make sure she kept getting his pay AFTER he died.

But since he was technically married when he retired - and did not select SBP - then he couldn't add me to SBP when we got married.

He also got a portion of HER retirement pay. But he paid her $545 a month and she paid him $157 a month. Since he died the 5th of February -she only sent him a check for $28 (for the five days he was alive in February). HIS payment to her was taken out of his check --the FULL $545 a month (because the Feb check is for Jan retirement pay).

So she collected the full month from his and paid for five days from hers.

I have sent her a letter requesting that she pay the balance to his Estate...or to return the portion of HIS pay that exceded the five days she was willing to pay him.

Free

Free

Free- I copied what I had posted before to not to confuse this issue:

"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"

I am basing this on that fact that he had the cancer claim pending when he died-

did he have other claims pending too when he died?

If the cancer claim succeeds-and you have re-opened it- there should be accrued benefits due to you -equaling whatever the veteran -had he lived- would have gotten in compensation for the cancer.

And you are right- based on the medical evidence in the c file at time of death.

The direct SC claim due to cancer is a separate issue and can be supported by additional evidence.

You mentioned retirement pay -I dont know if you mean you are eligible for SBP?

Was he 20 years or more service retired?

If so please read my post under SBP and DIC.

[Berta]

I think we discussed this here before -

Do you fully satisfy the VA's criteria for surviving spouse?

38 CFR 3.54 (2006)

[free_spirit_etc]

Yes. I meet number 1. We didn't have a child (Whew!) and he died 10 months after we were married. We sure thought we were going to have quite a bit longer.

But I am very grateful that he didn't spend much time "being sick." He would have hated that. But we really thought he would pull through this time and have more time. Of course - they SAID his pneumonia was cleared up -- took him off antibiotics and sent him home on Wednesday. Saturday he was back in ICU --with guess what? Pneumonia. He couldn't breathe. They said his pneumonia was "back" Yeah. Right. He had started needing more oxygen BEFORE he left the hospital when they switched him from IV to oral antibitoics. Then they sent him home with NO antibiotics since he was "doing SO good." I do not believe the pneumonia came back. I believe they didn't get it all the way cleared up. The overdose and Narcan trip they gave him didn't help either. That was when he stared talking about still having the will to live - but not knowing if he had the strength anymore.

I stayed with him the whole time he was in the hospital. Slept in a recliner by his bed (and with him IN his bed a couple nights). Had I not been there the night they overdosed him - he would have died then -- they would have found him and probably said he died in his sleep. He was barely breathing when I got the nurses. (They tripled his pain patch and forgot to Dc the pain shots).

This was NOT a VA hosptial....

But they made quite a few not good moves in his care. BUT when you have a terminal illness -- it doesn't seem to matter much. People think you were going to die anyway. So what if you die a little sooner than you could have.

My position is that you deserve EVERY DAY of your life!!! If you have one day, one week, one month, or one year left - you deserve that.

§ 3.54 Marriage dates.

A surviving spouse may qualify for pension, compensation, or dependency and indemnity compensation if the marriage to the veteran occurred before or during his or her service or, if married to him or her after his or her separation from service, before the applicable date stated in his section.

© Dependency and indemnity compensation. Dependency and indemnity compensation payable under 38 U.S.C. 1310(a) may be paid to the surviving spouse of a veteran who died on or after January 1, 1957, who was married to the veteran:

(1) Before the expiration of 15 years after the termination of the period of service in which the injury or disease causing the death of the veteran was incurred or aggravated, or

(2) For 1 year or more, or

(3) For any period of time if a child was born of the marriage, or was born to them before the marriage.

(Authority: 38 U.S.C. 1304)

Free

I think we discussed this here before -

Do you fully satisfy the VA's criteria for surviving spouse?

38 CFR 3.54 (2006)