I am a little lost trying to follow all this but I do need to make 2 points:
“colon cancer claimed as rectal cancer associated to AO”
These are not AO presumptive cancers. If this stems from a Soft Tissue sarcoma-(Not carcinoma) (there are about 34 STS cancers on the AO presumptive list, and STS cancers are fairly rare) that will take an IMO to fully explain to VA that a AO STS cancer ( a doctor would have to identify the actual STS type) has caused the colon and/or rectal cancer,with a full medical rationale.
Also I disagree with free spirit's statement:
“What complicates this somewhat for me is that even if the regs were applied a certain way in a certain case doesn't mean they will apply the same way in a very similar case. “
in this respect. The regulations control how the VA decides every claim but every claim has different evidence,specific solely to the disability the veteran is making the claim for.
If VA doesnt apply the regs properly,they have committed a CUE. Actually bonafide CUEs really dont happen that often or we would sure be filing more CUE claims against the VA.
Similiar cases have no weight at all with the VA in deciding any specific claim.
It is medical evidence that awards a claim. Even if the VA commits a major VCAA error ,in applying the VCAA regulations, yet the evidence still favors the veteran, the veteran will succeed.
As to accrued benefits -the regulations for survivors are not similar in any way to those regarding veterans claims.
Accrued benefits must be applied for within one year after the veteran's death. The only exception is regarding Nehmer .
The court stated:
“Thus, pursuant to this regulation, there
may be circumstances – perhaps rare but certainly possible – where documents are in the Secretary's
possession at the date of the veteran's death (and therefore are considered to be in the file at the date
of death), yet have never been presented to the Agency decisionmakers “
That was true in my claim for accrued.It IS rare and takes thoroughly accessing what is in the deceased veteran's file and what isn't there but should be there. When I submitted what should have been in my husband's medical files but was Not there,I won my accrued claim. It was in VA's possession but not available to the “decisionmakers” until they got it from me. I had gotten these records from the VA doctor who treated my husband and he was stunned that VA didnt have copies of these significant medical records in his VA med rec files.He had treated my husband for over 2 years with extensive therapy, gave him
multiple psychiatric tests and hypnosis sessions.
The VA shrink my husband had prior to him for many years was the VA employees shrink and didnt document a thing because he feared it could somehow interfere with any veteran or civilian's VA employment. He was a lovely man but It was quite a battle for me to get my husband (after having a major stroke), to the Real PTSD VA shrink (psychiatrist) because he didht work for the VA anymore, SSA had already awarded him solely for PTSD ,the initial VA shrink didnt document anything and he didnt have a clue on treating PTSD anyhow.
Survivors often have lots of leg work to do. I hope all the vets here have made sure their spouses are fully aware of their disabilities ,treatment, med profiles and medical records and will know where all that stuff is if they die.
Edited by Berta, 28 July 2012 - 04:06 PM.