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

[Judy]

Berta,

I found the address; you did post it for me already and thanks!

Should I file the CUE based on the unappealed decision of 1994 as stated in previous post?

Perhaps I should file for the reconsideration of EED on my current award as stated by AMVET in the email I received this morning and file them simultaneously?

I MUST prove the decreased rating of 1970 was a huge error....I believe that is the only REAL way I am going to win EED to 1990; if at all.

Judy

[Berta]

Office of General COunsel VA (023)

Department of Veterans Affairs

810 Vermont Avenue NW

Washington DC 20420

They need 3 copies of the SF 95.

Also they can be reached at 1-202-273-6380

You will proably get Debbie-=her PC is down for a while -I just spoke to them- She can advise you or refer you to an OGC attorney to find out if you need to send the SF 95 to the District Counsel VA that covers your VISN as well as to the OGC in DC.

Their MOS might have changed since I filed my original SF 95.I sent it to both OGC in DC and local Regional Counsel.

If you are in NY Western-VISN # 1- I spoke to District Counsel here yesterday and have contact number for them if you need it.

[broncovet]

Judy...

Again I am just thinking aloud, but I would exercise caution in taking this Amvets advice, for this reason. Go ahead and do what they suggested..file for an EED instead of an appeal. However, keep a mental note that if they dont have you approved within 11months and 3 weeks after you got your decision, go ahead and file a timely filed NOD to make sure it gets to them before 1 year after your decision to keep your NOD alive.

Hit em with both barrels, but dont give up your gun!

[Berta]

The AMVETs email seems drastically incorrect-

They appear as POA on 14,167 decisions at the BVA web site and the appellate process is NOT the last resort -it is the first step of the War game.

Since this ret knows this was a Re opened DIC claim claim then he also knows his idea has absolutely no legal merit.If it did thousands of veterans could simply request a better EED when they get a ReOpen date as their EED.

The only chance I see for DIC EED back to date of death is the CUE claim I suggested.That wont be easy to win.But NOT impossible as the recent widow's CUE I posted shows.

It might even be worth your while to purchase the VBM.

There isn't much in the VBM as to filing this type of CUE but you have many issues similiar to mine over the past 15 years and the VBM might help you in many regards.

If I had not purchased the VBM annually since 1991 I would have Never won my claims. Never.

Because the reps I dealt with didn't really have a clue on DIC claims and they told me my claims didn't have a chance.

Your rep stated:

I've looked through the file and can tell you that (IN MY OPINION) the chances of the VA granting the DIC effective back to the original claim are not very high. The reason why DIC was eventually granted was because you submitted new and material evidence that the VA had not received in the original claim, which was the independent medical opinion by Dr. Bash. Dr. Bash's opinion shone a different light on the claim and reasonable doubt was granted in your favor.

He is right here- you re=opened the claim with new and material evidence.

He probably suggested the request for better EED -knowing FULL WELL that the request would be denied.

He should have told you a CUE claim was only way to retrieve a DOD EED.

If AMVETS considers appeals as a last resort- what advise do they give their claimants when they are denied- DONT Appeal?

BTW my first experience with AMVETS was in 1987.

My husband had them as his POA .

He was 30% SC then and obtained job at local VAMC. The VA immediately attempted to reduce him to 10%.

I wrote his NOD. About 8 months later AMVETS called here for him but he was in the barn- the rep said Mrs. Simmons-that was quite a NOD-just tell your husband that the VA reversed their decision due to it.

The NOD is the first attack on a bad decision and the initial step in the appellate process.

The rep has a point but his advice is wrong.

Edited October 24, 2009 by Berta

[Judy]

Anybody know where to get the best price in VBM?

Is LexisNexis the best place to purchase and does it come out about this time every year?

Judy

[broncovet]

I am ticked that there is a charge for the VBM. This means that the people most likely to need it (Disabled Veterans waiting on the VA to process their claim) are the least likely to be able to afford it. I really dont know who's fault it is, but if Lexis Nexis is listening, I think they should publish that for free to Veterans, or anyone helping a Vet. If DAV, VA, VFW, etc. etc. really want to help Veterans, they should publish it electronically for free.