Should This Be Eed For Previously Won Dic Or Is It A Case Of Cue?

[Judy]

I hope starting a new topic is the correct thing to do.

I won very old SC DIC claim (I reopened in 2007), won in 2009, retro only to 2007.

I am working on getting EED (back to date of death, 1990).

I have a current Decision (denial) dated April 2012, and now must file BVA APPEAL (I-9).

I am working with Bash, he and I noticed the current VARO Decision lists part of the

EVIDENCE is:

""Copy of Board of Veterans Appeals Decision (BVA) pertaining to earlier effective date for ionizing radiation exposure disability (No relationship to this claim as this is not ionizing radiation claim) ""

I went back into my records to see where "ionizing radiation" was first mentioned (by them-I never used that term in my claim(s)) to find this in the BVA Decision dated 1994 (my original claim was 1990

and this was the BVA APPEAL to that ongoing claim). This is what I found in the 1994 BVA Denial:

""At the time this case was orinally before the Board in April 1992, it appeared that the appellant had presented a claim which was plausible and, therefore, "well-grounded" within the meaning of 38 U.S.C.A. $ 5107 (a) (West 1991). However, for reasons explained below, we are now of the opinion that the appellant has not submitted evidence of a well-grounded claim. ""

""In order for service connection for the cause of the veteran's death to be granted, it must be shown that a service-connected disorder caused the death or substantially or materially contributed to it.

A service - connected disorder is one which was incurred in or aggravated by service, or one which was proximately due to or the result of an established service-connected disability. During the veteran's lifetime, service connection had been established for nodular sclerosing Hodgkin's disease, which was rated as 100 percent disabling. According to his death certificate, the immediate cause of his death in August 1991 was arteriosclerotic heart disease. There were no other conditions contributing to death, and an autopsy was not conducted.""

........"" Arteriosclerotic heart disease is not recognized to be a potentially "radiogenic disease" under 38 U.S.C.A. $ 1112 © and 38 C.F.R. $ 3.309 (d). Consequently, the veteran's fatal arteriosclerotic heart disease may not be attributed to service radiation exposure, 38 C.F.R. $ 3.311b; see also Comboe v Principi No. 91-786 (U.S. Vet. App. January 1, 1993).""

......""Subsequent to the May 1992 remand, the United States Court of Veterans Appeals held that where the determinative issue in a claim involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible is required to establish that the claim is well grounded. Grottviet v Brown, U.S. Vet.App. 92-20 (May 5, 1993). Lay persons are not competent to offer opinions on medical causation. Espiritu v Derwinski, 2 Vet. App. 492 (1992). If no competent medical evidence is submitted to support the claim, it is not well grounded. Tirpak v Derwinski, 2 Vet. App. 609, 611 (1992). In light of this additional case law and the absense of competent medical evidence to support her claim, we must conclude that the appellant's claim is not well grounded. Accordingly, service connection for cause of the veteran's death is not in order.""

Now, my question.... Dr. Bash says "sounds like radiation error; should get EED".....

Can I possibly be awarded EED on this BVA APPEAL as it is related to my 2009 DIC award (retro to 2007) ??

OR

Is it necessary to open a NEW CUE claim in order to use this effectively (with IMO) to go for the EED?

Please can someone help me understand as I do not want to make a mistake here.

I am ready to file the I-9 and I read Berta's "verbage" on exactly how to word what I am "taking exception to".... VERY helpful!

Berta also suggested sending your exhibits (IMO too?) WITH the I-9 for them to have your evidence ......so it is very important

for me to KNOW if I should send all of this as it relates to my current claim for EED of the 2007 effective date of my DIC award.???

IF I need to use a CUE for this, then how would I respond to the current APPEAL?

Sorry to have written a book but I really need advice from you who really understand the law/regs etc., and you needed to know

all these pertinent facts to be clear on what is happening.

Just a word to explain my dilemma, I have had two SO's (AMVETS) and (TEXAS VETERANS COMMISSION) and neither one of

them want to assist or represent me anymore....can you believe it?

Thank you so much!

Judy B

( original case is in jurisdiction of Houston VARO)

[Philip Rogers]

Judy, did the veteran serve in Viet Nam?

pr

[Judy]

Judy, did the veteran serve in Viet Nam?

pr

No he didn't Philip.

It looks like they adjudged the old claim as if he was exposed to "ionizing radiation" though.

thanks for the reply,

Judy B

[Berta]

Judy I remember your claim to some extent but I only have time today to review a few past posts you made here-

My first question is exactly what Philip asked.Any Vietnam incountry service? Korea,near the DMZ, ? Thailand? If so when and where?

“I have a current Decision (denial) dated April 2012, and now must file BVA APPEAL (I-9). “

Can you scan and attach here the Reasons and Basis for denial?(Cover personal stuff)

“Dr. Bash says "sounds like radiation error; should get EED".....

I saw this DIC as potential; under 1318 DIC or under Section 1151, 38 SC.

Under what basis did they grant the DIC? I forget.

Did you ever have the Death Certificate amended and does it now include any contributing conditions to death?

I LOVE Dr. Bash and did a SVR show here recently with him.

But I don't see his point. Yet.........

“Vet was SC 100% for cancer. Died in 1990 and death certificate read (arteriosclerotic heart diease...no contributing or underlying causes on death certificate...issued by County coroner...no autopsy done). I (widow) file for SC DIC and its denied "no causal relationship/nexus between death certificate COD and SC DIC of cancer). I appealed; denied again; appealed again, remanded by VBA to RO and denied again. All this took over 5 years...I gave up. Then , 10 + years later, I REOPENED claim; denied again. I submitted IMO and new evidence and CLAIM WAS GRANTED (for SC DIC!) but retro pay only back to date of RE OPENED claim...2 years of retro. “

from:

and:

" I reviewed the record on Mr. B----. According to the Death Certificate this veteran's Cause of Death was Arteriosclerotic Heart Disease.He had been treated for Hodgkin's lymphoma in the past. “

from:

The reason I dont see Dr. Bash's point is that the regs read:

“ lymphomas other

than Hodgkin's disease; parathyroid adenoma; etc “

and it excludes what type of cancer I thought you said your husband had- However- I assume Dr. Bash has another basis of potential service connection and would like to know what the basis is ,as competent medical evidence (which Dr. Bash provides) could potentially support a better EED.

Dr. Bash isnt steering you wrong at all- that isn't what I mean----he sees something in the Radiation regs that we dont know of yet, that can be medically associated with your husband's cancer and I assume your husband had proven radiation exposure to a “radiation Risk activity”........?

Did the VA conceded that exposure? How exactly did they word the concession to radiation exposure?

I am familiar with "Atomic Vets" claims, and they succeed very rarely.My neighbor was part of the Hiroshima occupation and I studied these regs and many BVA decisions on Atomic vets carefully but he had no disability that could fit into them.I did see very strong evidence of a 1151 claim in his situation but he didnt want to file it.

VA wanted to give him a hip replacement because he had started to limp a lot and have extreme leg pain.

Then he mentioned a statin drug they had him on.

He is a Cherokee Indian. The VA cannot give certain statins to American Indians! I was very upset when he told me about the statin med.

I told him to question this with his doctor and the VA doc said-'Oh I thought you were a Pakistani or that kind of Indian.'

Idiots. It says right on his original VAC stuff that he was American Indian. The VA immediately stopped the statin med, his limp started to get better and there was no need for hip surgery that they scheduled him for, which he didnt even need .

Idiots!!!!!

Did you ever pursue the medication error VA made regarding your husband under FTCA? under something like accutane????

These are the radiation regs:

A "radiation-exposed veteran" is defined by 38 C.F.R. §

3.309(d)(3) as a veteran who while serving on active duty or on

active duty for training or inactive duty training, participated

in a radiation-risk activity. There are a number of activities

defined as a "radiation-risk activity" including, but not

limited to, onsite participation in a test involving the

atmospheric detonation of a nuclear device; the occupation of

Hiroshima, Japan or Nagasaki, Japan by United States forces

during the period beginning on August 6, 1945, and ending on July

1, 1946; or internment as a prisoner of war (or service on active

duty in Japan immediately following such internment) during World

War II which resulted in an opportunity for exposure to ionizing

radiation comparable to that of the United States occupational

forces in Hiroshima or Nagasaki during the period from August 6,

1945 through July 1, 1946. 38 C.F.R. § 3.309(b)(i), (ii) (2010).

If a claimant does not qualify as a "radiation-exposed veteran"

under 38 C.F.R.

§ 3.309(d)(3) and/or does not suffer from one the presumptive

conditions listed in 38 C.F.R. § 3.309(d)(2), the veteran may

still benefit from the special development procedures provided in

38 C.F.R. § 3.311 if the veteran suffers from a radiogenic

disease and claims exposure to ionizing radiation in service.

Under 38 C.F.R.

§ 3.311, "radiogenic disease" means a disease that may be

induced by ionizing radiation and shall include the following:

cancer, including all forms of leukemia except chronic lymphatic

(lymphocytic) leukemia, multiple myeloma, and lymphomas other

than Hodgkin's disease; parathyroid adenoma; tumors of the brain

and central nervous system, non-malignant thyroid nodular

disease, and posterior subcapsular cataracts. 38 C.F.R. §

3.311(b)(2) (2010). Additionally, if a claim is based on a

disease other than one of those listed in paragraph (b)(2), VA shall nevertheless consider the claim under the provisions of

38 C.F.R. § 3.311 provided that the veteran has cited or

submitted competent scientific or medical evidence that the

claimed condition is a radiogenic disease. 38 C.F.R.

§ 3.311(b)(4) (2010).

Although, as I said, they exclude Hodgkins lymphoma, CLL, and MM, there is something in your husband's medical records that hopefully fits into these regs and Dr Bash has seen it.

Edited June 1, 2012 by Berta

[Berta]

These cases are difficult but possible.

This veteran was granted for ionizing radiation as causing her breast and ovarian cancer.

http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp10/Files6/1047452.txt

She had definitely been exposed to a radiation risk activity. in service.

In part the decisions states:

"The Veteran contends that her duties during service exposed her

to ionizing radiation. Specifically, she asserts that as a 27L

Lance Missile Repairer/Technician, she worked with the Lance

Missile for five years while stationed in Germany. In her

capacity, the Veteran states that she oversaw the testing and

repairs of all elements of the missile which was a neutron bomb.

She further indicates that she was part of the Propellant

Draining Kit Operation team which required her to go into bunkers

and help package extremely hazardous munitions."

[Judy]

Judy I remember your claim to some extent but I only have time today to review a few past posts you made here-

My first question is exactly what Philip asked.Any Vietnam incountry service? Korea,near the DMZ, ? Thailand? If so when and where?

Thank you Berta for your comments/perspective, as always.

1) he never served in Vietnam, Thailand, Korea, DMZ etc. ...no

“I have a current Decision (denial) dated April 2012, and now must file BVA APPEAL (I-9). “

Can you scan and attach here the Reasons and Basis for denial?(Cover personal stuff)

2) YES, I can and will scan it and post to the thread....

“Dr. Bash says "sounds like radiation error; should get EED".....

I saw this DIC as potential; under 1318 DIC or under Section 1151, 38 SC.

Under what basis did they grant the DIC? I forget.

3) DIC was granted 2009 on the basis that (FINALLY) they admitted Service-connected... so SC DIC (retro only 2 years-date of RE opened claim)

Did you ever have the Death Certificate amended and does it now include any contributing conditions to death?

4) NO it was never amended and does not give any contributing conditions.

I LOVE Dr. Bash and did a SVR show here recently with him.

But I don't see his point. Yet.........

“Vet was SC 100% for cancer. Died in 1990 and death certificate read (arteriosclerotic heart diease...no contributing or underlying causes on death certificate...issued by County coroner...no autopsy done). I (widow) file for SC DIC and its denied "no causal relationship/nexus between death certificate COD and SC DIC of cancer). I appealed; denied again; appealed again, remanded by VBA to RO and denied again. All this took over 5 years...I gave up. Then , 10 + years later, I REOPENED claim; denied again. I submitted IMO and new evidence and CLAIM WAS GRANTED (for SC DIC!) but retro pay only back to date of RE OPENED claim...2 years of retro. “

from:

and:

" I reviewed the record on Mr. B----. According to the Death Certificate this veteran's Cause of Death was Arteriosclerotic Heart Disease.He had been treated for Hodgkin's lymphoma in the past. “

from:

The reason I dont see Dr. Bash's point is that the regs read:

“ lymphomas other

than Hodgkin's disease; parathyroid adenoma; etc “

5)WHAT IS MOST INTERESTING HERE IS THAT HIS ORIGINAL DIAGNOSIS WAS " LYMPHOSARCOMA, ANTERIOR SUPERIOR MEDIASTINUM EXTENDING TO THE RIGHT SUPRACLAVICULAR AREA." (1968)

6) NOW COMES 1982 MED RECS : SURGICAL REMOVAL OF MASS IN THE NECK AND DIAGNOSIS READS: " MASS, RIGHT NECK9LYMPH NODE) SHOWING CHANGES CONSISTENT WITH HODGKIN'S DISEASE, NODULAR SCLEROSING TYPE." (1982)

In the med recs they refer to it at another recurrence as "non-Hodgkin's Lymphoma (Lymphosarcoma)".

and it excludes what type of cancer I thought you said your husband had- However- I assume Dr. Bash has another basis of potential service connection and would like to know what the basis is ,as competent medical evidence (which Dr. Bash provides) could potentially support a better EED.

Dr. Bash isnt steering you wrong at all- that isn't what I mean----he sees something in the Radiation regs that we dont know of yet, that can be medically associated with your husband's cancer and I assume your husband had proven radiation exposure to a “radiation Risk activity”........?

Berta, he was never exposed to radiation EXCEPT the radiation (4000 rads daily for 17 weeks) administered to the chest area FOR the treatment of his disease.

Did the VA conceded that exposure? How exactly did they word the concession to radiation exposure?

I am familiar with "Atomic Vets" claims, and they succeed very rarely.My neighbor was part of the Hiroshima occupation and I studied these regs and many BVA decisions on Atomic vets carefully but he had no disability that could fit into them.I did see very strong evidence of a 1151 claim in his situation but he didnt want to file it.

VA wanted to give him a hip replacement because he had started to limp a lot and have extreme leg pain.

Then he mentioned a statin drug they had him on.

He is a Cherokee Indian. The VA cannot give certain statins to American Indians! I was very upset when he told me about the statin med.

I told him to question this with his doctor and the VA doc said-'Oh I thought you were a Pakistani or that kind of Indian.'

Idiots. It says right on his original VAC stuff that he was American Indian. The VA immediately stopped the statin med, his limp started to get better and there was no need for hip surgery that they scheduled him for, which he didnt even need .

Idiots!!!!!

Did you ever pursue the medication error VA made regarding your husband under FTCA? under something like accutane????

These are the radiation regs:

A "radiation-exposed veteran" is defined by 38 C.F.R. §

3.309(d)(3) as a veteran who while serving on active duty or on

active duty for training or inactive duty training, participated

in a radiation-risk activity. There are a number of activities

defined as a "radiation-risk activity" including, but not

limited to, onsite participation in a test involving the

atmospheric detonation of a nuclear device; the occupation of

Hiroshima, Japan or Nagasaki, Japan by United States forces

during the period beginning on August 6, 1945, and ending on July

1, 1946; or internment as a prisoner of war (or service on active

duty in Japan immediately following such internment) during World

War II which resulted in an opportunity for exposure to ionizing

radiation comparable to that of the United States occupational

forces in Hiroshima or Nagasaki during the period from August 6,

1945 through July 1, 1946. 38 C.F.R. § 3.309(b)(i), (ii) (2010).

If a claimant does not qualify as a "radiation-exposed veteran"

under 38 C.F.R.

§ 3.309(d)(3) and/or does not suffer from one the presumptive

conditions listed in 38 C.F.R. § 3.309(d)(2), the veteran may

still benefit from the special development procedures provided in

38 C.F.R. § 3.311 if the veteran suffers from a radiogenic

disease and claims exposure to ionizing radiation in service.

Under 38 C.F.R.

§ 3.311, "radiogenic disease" means a disease that may be

induced by ionizing radiation and shall include the following:

cancer, including all forms of leukemia except chronic lymphatic

(lymphocytic) leukemia, multiple myeloma, and lymphomas other

than Hodgkin's disease; parathyroid adenoma; tumors of the brain

and central nervous system, non-malignant thyroid nodular

disease, and posterior subcapsular cataracts. 38 C.F.R. §

3.311(b)(2) (2010). Additionally, if a claim is based on a

disease other than one of those listed in paragraph (b)(2), VA shall nevertheless consider the claim under the provisions of

38 C.F.R. § 3.311 provided that the veteran has cited or

submitted competent scientific or medical evidence that the

claimed condition is a radiogenic disease. 38 C.F.R.

§ 3.311(b)(4) (2010).

Although, as I said, they exclude Hodgkins lymphoma, CLL, and MM, there is something in your husband's medical records that hopefully fits into these regs and Dr Bash has seen it.

Berta, what I am thinking (and brought up to Dr. Bash) is this: The April 2012 denial that we are currently working from is referring to EVIDENCE ITEMS used to consider the claim (now) and it

states under EVIDENCE:

"Copy of Board of Veterans Appeals Decision (BVA) pertaining to earlier effective date for ionizing radiation exposire disability (No relationship to this claim as this is not ionizing radiation claim)"

I am guessing that perhaps Dr. Bash believes (as I do) that the earlier BVA denial (1994- pertaining to the 1990 original claim for DIC) was JUDGED by the standard for an "ionizing radiation" claim....

which it never was. Mind you I said I am guessing; Bash has not told me anything except to say " Sounds like radiation error; you should get EED"... that is all I know.

My CONCERN is this: ....."IF" this is true, can I possibly win this EED on THIS APPEAL (related to the SC DIC award date of 2007) OR..... MUST IT BE A NEW CLAIM FOR CUE in order to

approach it correctly????? I don't want to submit the NEW IMO BASH is working on and then find out it should have been a CUE.... VA would say "oh, that evidence is already in the file and

has already been considered ".... (after they deny again).... advice PLEASE???

Thanks,

Judy B. (I will scan and post the reasons for basis of denial; shortly )

[Judy]

Berta,

I'm going to attempt to attach the scans here.

The first two pages are from the April 2012 present EED claim as related to the 2009 SC DIC award (retro to 2007)

(labeled APRIL-2012)

The last two pages are from the BVA APPEAL DENIAL I received in 1994 (denial of the original 1990 claim for SC DIC)

where it APPEARS that they may have judged the claim based on the regs for "IONIZING RADIATION" since that is

mentioned here.

I think this is what Dr. Bash may be focusing on. (??)

Thanks,

Judy B