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

[broncovet]

Judy

If your most recent claim is withing the year, like you said, I would file a Notice of Disagreement where you are disputing the effective date. I am doing the same thing myself, and, tho I do not know the result yet, I am going on the assumption that, since I filed the NOD within the 12 month period, I do not need to meet the strict CUE standard.

The good part is that I can always file a CUE later, for example, if I am unsuccessful at my appeal, as there is no time limit on CUE. So could you.

I am just trying to help here. Berta is very competent and experienced..much more so than I am, so I would take her advice over mine any day.

I really dont know what would happen if you went "the other way", that is you filed a CUE for an eed, and the BVA determined that a CUE was not necessary because you were within the one year period. I just dont know if the BVA would be nice and tell you that, or if they would just deny the CUE on the basis that your claim did not meet the strict CUE requirements. You see, by then, it could be too late (after a year) for you to file a regular appeal, because most appeals take a couple years, and by the time you got an answer from the BVA it would be way past the one year appeal period.

I still think the best way for you to MAXIMIZE your chances at winning your claim is to file a Notice of Disagreement for an EED to your most recent claim. If your appeal is denied, you can still CUE an earlier decision. It gives you two chances to win, not just one. Its kind of like carrying a spare tire. You never know when there will be a nail in the road.

PS..I just dont think the BVA will bring up any issues that you do not. That is, if you file a CUE, and they dont think you met the cue standard they would just deny you, and I dont think they would "assume" you meant to also file a NOD, which has a lower standard than CUE.

Edited October 13, 2009 by broncovet

[Judy]

Broncovet,

Thank you very much for your detailed explanation as to why you have the opinion that it would be better to file a NOD on the current award.

I am such an inexperienced lay person at this so it never occured to me to file a NOD regarding the effective date as the CUE can always be filed later if need be.

I want to file the SF 95 for FTCA claim as well but haven't found any attorney who wants to touch it because the death is so old. They don't seem to understand that the earliest date I personally became aware that there was malpractice was when I got the first IMO (used to bolster my recent award for SC DIC) so it has been under 2 years. Nevertheless, I am going to file FTCA myself to stop the clock and continue to search for an attorney should I need one.

Thanks again, I meet with SO tomorrow and I will file NOD on the EED of the current award.

Judy

[Berta]

I went over these posts again and I agree with Broncovet here-

but I think the VA might say that the claim was not continuously prosecuted-thus the EED would stand as it is.

In that case -a CUE claim could be filed however because there had been a previous final and unappealed decision to CUE.

[deltaj]

"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

Judy, I sent you a personal message on obtaining copies of records from Social Security. I read of a case here on hadit where a veteran or survivors obtained service medical records from Social Security that V.A. had sent to Social Security and V.A. had later stated the records were destroyed by the fire at the National Personnel Records Center. I'm thinking that if your husband had applied for Social Security V.A. may have sent copies of his file to Social Security including any civilian medical records in their possession. I'm know you are looking for your late husband's medical records from 1970 to 1973 to show that his cancer had recurred and that V.A. incorrectly reduced his 100% rating. Were you married to him then? Can you recall whether he being treated by a V.A. hospital or a private hospital during that period for his cancer?

Edited October 14, 2009 by deltaj

[broncovet]

Thank you Berta and Judy.

The "theory" is this: Once you have passed the one year mark on a decision, you can NEVER go back. However, if I timely filed a NOD, there is nothing wrong with me withdrawing that NOD at a later date because it no longer applies.

I once knew a International Chess Master, who tutored me in the game. He told me to "make the move that leaves you the most options AND leaves your opponnet the most ways of going wrong" . That is, dont burn down any bridges before you cross them.

Bottom Line: If in doubt get the NOD out. Dont make the mistake of waiting too long to file a NOD.

Late filing of a NOD past the one year period gives the VA just one more excuse to deny. If we want to win our claim we want to remove as many excuses to deny as we can. I think this should be posted on the front page of hadit. Many, many Veterans regret not filing a NOD within a year, but I have never ever heard of one who said, "Gee I wish I would have never filed that NOD on time."

Edited October 14, 2009 by broncovet

[Berta]

Judy =this claim might help you in getting a more favorable EED for DIC.

http://www.va.gov/vetapp09/files3/0921980.txt

It is similiar to your situation and the BVA seemed to re-characterized the claim and awarded it.

Doug Rosinski, attorney for the widow here- is our guest at SVR radio tonight.