diabetes Cue For Eed

[Judy]

Copied from previous thread from JBreckenridge....

QUOTE:"

Judy, you may be a Nehmer class member. What was your husband service connected for, and what were the causes of death and contributed factors on his death certificate, and was he ever on the ground in Vietnam? When did he die, and when did you file your claim?

DIC Nehmer example: Veitnam veteran dies of complications of diabetes (such as arteriosclerotic heart disease) in the mid 90s. Widow applies for DIC, and is denied because the vet isn't service connected for a heart condition. The Nehmer case later comes down and per 38 CFR 3.816, the widow can reopen the claim asking for service connected death based on complications of diabetes due to herbicide exposure. THe effective date would be date of death or date of the first claim, or the first of the month in which he died, depending on how the dates work out. This is one of the few exceptions for granting an effective date prior to a change in law.

You may want to start your own topic here in Claims Research""UNQUOTE:

Thank you for your information, here's my extremely brief scenario.

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.

Does this NEHMER case help me in my effort to CUE them for EED (on the UNappealed Final Decision issued in 1995? It sounds like it definitely does. There is NO AO involved here, vet was never in NAM and no exposure to AO.

ALSO, I have IMO for this new claim but am reluctant to submit it on the "first go round" as they always deny your claim. I thought it would be better to hold the IMO and then submit it as additional new evidence after the original CUE is denied... does that sound feasible or am I being foolish here?

thanks to all for contributing

Judy

[Berta]

Judy-Nehmer only involves Agent Orange claims.

Was the initial DIC claim for SC death on the exact same basis as what they finally awarded for?

If so-there could be CUE potential.But the CUE would have to be a legal error and also based on all records in VA's possession at time of the alleged CUE.

What I mean is say (example) the death certificate states COD as myocardial infarction with basal cell cancer contributing.VA denies initial DIC claim based solely on CAD, but subsequently awards re-opened claim for DIC based on the cancer.It might be very difficult to prove VA committed CUE in the denied decision as the basis for DIC was completely different from the awarded DIC.

There is much info on CUE here at hadit in the CUE forum.

[Judy]

ok, got it....Nehmer no help.

"Was the initial DIC claim for SC death on the exact same basis as what they finally awarded for?

"

Yes it was.

Perhaps a CUE is not going to work for me....how do I get EED out of this award?

Judy

[cowgirl]

Judy, I am reading here and there but thought I'd ask - do I understand that cancer wasn't listed on his death certificate? What was diagnosis listed on the initial claim for DIC? And in the VA's initial response on the denial? (if you posted that here already, can you point me to it?)

To get an earlier effective date, its a matter of knowing what the regulations and procedures were in effect at that time and their wording. Then if your claim clearly fits into the criteria, along with the information the VA had on hand at that time and wasn't appropriately rated, getting the date corrected is possible.(er, cgho - cowgirl's humble opinion!)

Best to ya,

Cg'up2009!

[broncovet]

Judy

Maybe I am missing something, but It would appear to me that it is unnecessary for you to meet the "CUE" standard, that a regular appeal for an EED should suffice. The reason is that the "CUE" standard is much tougher than regular appeal..to be awarded a CUE claim it has to be "undebatable" error, while with a regular appeal both the doctrine of equipose and the "favor the Veteran" apply. If your most recent decision awarding DIC was within 12 months, then I would appeal it for an EED. However, if your most recent decision awarding DIC was more than 12 months ago, then you would need to meet the stricter "CUE" standard criteria.

JMHO.

In some cases, this could be the difference between winning or loosing for you. In other words, maybe your case is not "undebatable", but, applying the doctrine of equipose which states, to the effect, that if there is evidence which supports the Veteran, and evidence which does not support the Veterans position, then the court would rule in favor of the Veteran. That is, you dont need to prove "without doubt" that you are entitled to an EED, you need only show that you have a 50/50 chance of being right in order to win.

Edited October 13, 2009 by broncovet

[Berta]

Broncovet-I think the EED they gave Judy was due to it being a 're-opened' claim.

So I am assuming that the claim was not continuously appealed from when it was first filed and that only a CUE claim could possibly generate a better EED.

I posted a CUE claim here recently-in claims research- it is a good template for all CUE claims-

if the original DIC claim they denied was exactly the same as what they just awarded-with the same evidence in the past denial and recent award- seems to me it might be easy to find some legal error they made in the decision -to file a CUE claim.

Judy could challenge the award letter but I don't know how that would work.I don't know how a NOD would help on the EED.

I challenged my recent award letter-but I didn't file a NOD nor a reconsideration request-I just told them why it was all wrong based on VA case law and regs.I said it was clearly and unmistakably erroneous and morally and legally incorrect except for the actual SC death award statement.They wanted me to keep the 1151 DIC instead of the direct SC DIC.

BS to that idea.

It seems that they did change already the type of DIC I get as they are processing my funeral expense claim and my Chap 35. They sent me some of the Chap 35 money already and are working on the accrued DMII CAD CVA claim.

I just have no idea if this sort of approach could work for Judy-because they already said her EED was based on the re-open date-still one never knows what might work until one tries.

[Judy]

"if the original DIC claim they denied was exactly the same as what they just awarded-with the same evidence in the past denial and recent award- seems to me it might be easy to find some legal error they made in the decision -to file a CUE claim."

It was exactly the same evidence EXCEPT for the IMO I provided when I reopened the claim.

What is tatamount here is this: The 100% rating from date of discharge in 1969 was lowered by VA only 13 months after discharge. They lowered it to 30% (because he was working AND did so when I applied for ed. benefits!) WITHOUT any evidence in the med recs showing a C & P exam at that time. then 10 years later during a cancer recurrence, the VA again rated him at 100% and remained so until the date of death 8 years later. IF, I repeat IF the VA had NOT lowered his rating, he would have been 100% for 22 years at the time of his death and therefore all of this would have been moot... the SC DIC original claim filed by me at time of death in 1990 would have sailed smooth as silk. I am looking for a way to prove that this re rating was the problem...if I can prove that point, then the EED back to date of death in 1990 would surely be granted.

I just don't know for sure how to tackle this.

ALSO:

" If your most recent decision awarding DIC was within 12 months, then I would appeal it for an EED. However, if your most recent decision awarding DIC was more than 12 months ago, then you would need to meet the stricter "CUE" standard criteria.

JMHO."

Does this mean I can appeal the current award (6 months old now) for an EED to date of death? That I'm not sure.... reading Berta's comment, and knowing the current award was based on the RE-opened claim date, where does that leave me any possibility of EED for 1990?

Judy