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]

The basis for the CUE could be that the rating for Judy's husband should have been 100% for ten years prior to death.

Since the SC rating was for 8 years at 100% SC -then if medical evidence already established in the VA records would support an EED of the 100% back to 10 years prior to death- Judy could file a CUE claim on the decision denying DIC based on the 10 year rule (38 USC 1318)

This narrows the focus to only 2 full years preceeding the 8 year 100% SC prior to her husband's death.If medical evidence in the VA's possession would havewarranted an earlier EED for the restoration of the 100% comp for the full two years in addition to the 8 years- this is CUE basis with potential for better DIC retro date.

This type of CUE is explained on pages 525 and 526 of the VBVM, 2009 edition by NVLSP.

[Berta]

I will post next topic a widow's claim that succeeded under the CUE scenario.

[Pete53]

Judy:

I am rooting for you.

[cowgirl]

Judy, I have a question related to what you stated 'could have been' - did they not give you a specific reason? Also you said he was rated 100% by the VA and USAF. How did that work? did he recieve benefits from both - or which one took the lead? You posted the VA reduced him to 30% at the same time they denied you for ED (education benefits?). That sure has me puzzled too. Did you/he recieve a denial statement then? I can't imagine it being much wording wise. In the late 90's when I recieved a few denials from the VA I was lucky to get a single, vague sentence. But, at least that is in my Cfile.

Forgive me if I asked already, what was his specific job title? bases did he serve on? or travel to on temporary duty? Those years PMEL labs could have been closer to the flightline than todays offices. And could be probable exposure to jet fuel like JP4 (think Benzine) or other fuels.

Best to ya,

cg'up2009!

It is ONLY because of the reduced rating that my original SC DIC claim could have been denied since THAT FACT is what made him rating at 100% for only 8 years at time of death as opposed to the 10 year reg that was in effect at that time. Am I making any sense to anyone?

I want to PROVE BEYOND A DOUBT that they WRONGFULLY reduced his rating. I think this is my best chance at success of getting the EED to 1990.

Anyone have any suggestions here?

What do I need to file to (CUE THEM?) prove they re-rated him in ERROR?

Judy

[broncovet]

Judy

Altho I am just thinking aloud here, I am thinking a "double barreled" attack may produce the best results for you.

1. Attack the most recent decision based on a timely filed NOD for an eed.

2. Attack the lowering of your husbands rating based upon CUE, because it is more than one year old.

By "hitting em with both barrels of a double barrel shotgun" you got a bigger pattern and are more likely to stop em.

Reason:

While attack #1, may well succeed, if it does not you use Attack number 2 (CUE the earlier reduction).

By lumping them together, it could save you time. Example: You file a NOD, it takes four years, they say no. Then you file a CUE attack. It is gonna take still more time.

By firing both barrels at once, it could reduce the time till you get your money by a couple years.

You might even get lucky here. For example, in your NOD if you casually mention the old decision reducing your hubbies rating is a "Clear Error", you just might not get the VA to fight you on it, that is, the VA may never "notice" your CUE claim on the earlier decision, and may never address your CUE claim.

If you did loose at the BVA ,then you could file at the CAVC saying they ignored your CUE claim. The VA deserves to get nailed for ignoring our claims, and our appeals. You could well argue that you DID file a CUE claim, stating the earlier decision was a "Clear Error".

If the VA does not "notice" your CUE claim, then you can cite this decision:

Moody vs Principii:

In Roberson we held that the VA has a duty to “fully and sympathetically develop a veteran’s claim to its optimum,” 251 F.3d at 1384 (quoting Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998)), and that this requires the VA to “determine all potential claims raised by the evidence, applying all relevant laws and regulations.” Id. The Court of Appeals for Veterans Claims held that Roberson did not apply here because it “identified a narrow factual scenario which sufficiently raises an informal claim for TDIU within the meaning of 38 C.F.R. § 3.155(a)” and “there is no indication that the facts of this case coincide with those of Roberson.” Moody, slip op. at 3-4. However, this distinction disregards the broader holding of Roberson. As we recently confirmed in Szemraj, “Roberson requires . . . that the VA give a sympathetic reading to the veteran’s filings by ‘determin[ing] all potential claims raised by the evidence, applying all relevant laws and regulations.’” 357 F.3d at 1373 (quoting Roberson, 251 F.3d at 1384) (alteration in original). This duty applies “with respect to all pro se pleadings” before the VA. Id.

Edited October 20, 2009 by broncovet

[Judy]

Wow....great thinking and thank you Broncovet.

Your suggestion is exactly what I am going to do. File the NOD, file the CUE and file the FTCA; get all of them going and then pray over the battle.

Judy