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

[LarryJ]

www.usdoj.gov/civil/forms/SF95.pdf

Form SF 95 - Claim for Damage, Injury or Death.

Edited October 25, 2009 by LarryJ

[deltaj]

Berta,

I read the case you posted and it brings up questions in my mind.

Jim was a flight line jet mechanic for many of his earlier years in USAF prior to his becoming involved in PMEL (precision Measurement Electronics Lab) work.

How do I know what possible things he may have been exposed to during those early service years (he was never in NAM remember) that may have caused his original SC disability and ultimate discharge with 100% rating? Remember that his original disease/diagnosis was (also...like the case you referred to) "non hodgkins lymphona".

Coupled with the fact of the (unjustified) re rating, this is most compelling (to me).

How can I pursue this nexus?

Judy

I believe you mean non Hodgins lymphoma. Did V.A. treat your husband with doxoribicin hydrochloride also known as Adriamycin for a prolonged period of time? Did they monitor him for heart problems while using this drug.

[deltaj]

Thank you Brocovet; YES, I will file NOD right away on the current decision.

Berta, thanks as always. I will investigate the claim to which you posted this link.

I emailed Doug Rosinski a few months back and he quickly declined to take my FTCA saying he "didn't see any way around the 2 year limitation" (since the death was in 1990). No one seems to understand the "two years from the time the claimant became aware of any malpractice" (not exact quote from regs I'm sure). In my case, Dr. Bash pointed this out in his October 31, 2007 IMO (so I MUST file FTCA NOW!)

Berta, on the SF-95 is ALL the information on claimant or deceased vet? I'm a little confused...will take it to SO to be sure I fill it out correctly I suppose.

Anyway, I shall pursue on my own.

Deltaj, thank you for the PM and I did get it. I was a little confused about the link between SS Admin records and the VA recs but here are the facts as I know them.

Yes, we were married continuously from 1960 to date of death 1990.

He did apply for Social security upon discharge from USAF in 1969 (rated 199% by USAF and shortly thereafter by VA too). He drew the Social Security disability for ONE YEAR and DURING the last couple of months he was drawing SS Disability, is when I applied to VA for ED benefits and the VA denied them as well as reduced Jim's rating down to 30%! ((He actually took radiation at VAMC Houston sometime during the years from 1971 to 1975 and the reduction was in 1971.))

Deltaj, I have all the records now. He was treated continuously for 22 years by VAMC Houston ONLY, never anywhere else.

I am hung up on the fact that this reduction was in ERROR and if I can prove THAT to be a fact, then the EED would be automatic to date of death Because we were married for 30 years AND his 100% disability would have been constant for 22 years (date of discharge to date of death)therefore falling under the "10 year rule".

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

When you say that you now have all the records, do you also mean that you have a copy of your husband's C file from V.A. that included the rating decisions, V.A. examinations, and notification letters. I think for starters that you should do is go through those medical records carefully and look for any evidence that your husband's cancer was active before the rating was reduced. An example would be if this veteran was receiving chemotherapy just before V.A. wrongfully reduced his rating. Get a copy of Title 38 Code of Federal Regulations 3.343 and 3.344 as those regulations existed at the time of the decision reducing the rating.

Let me make it clear that what i was suggesting was that you make a request for all records to Social Security. I suggested this because V.A. sometimes destroys some medical records after copies of the records have been sent to Social Security.

Also I find one website that stated that mycosis fungoides is another name for a type of lymphomas. I haven't verified elsewhere that is true but if you verify that then you should keep an eye out for the term while reviewing your husband's records.

Edited October 25, 2009 by deltaj

[broncovet]

Judy..

Doug Rosinski is probably a pretty good lawyer, but he is "skimming the cream", in part because he won a multi million dollar case for Vets (class action) about a year ago and because he CAN. I think he is looking for the "easy money" cases that are a slam dunk with large attorney fees. He just doesnt want to work cases where the fees arent as high, and he has to do a lot of work to win.

So, dont be discouraged just because he turned your case down. Another lawyer could look at this in another light, and say, "Gee..this is easy money..all I have to do is...

and the judge will have to decide in my clients favor."

If it werent for people disagreeing, there would be no need for lawyers! Bottom line: get another lawyer.

[Berta]

This widow's FTCA matter and Section 1151 claims were options before she succeeded on direct SC death.There are hundreds of posts here dating back to prior to her DIC award.

A veterans or widow can raise any potential reason for entitlement to a benefit.But she did get the DIC award.

Due to the direct SC death award- as has been posted many times before here-there is an offset factor to FTCA.

If Judy succeeded in a FTCA claim -I assume the VA would potentially offset every penny of any successful FTCA award to Judy's DIC.Unless she negotiated a different type of offset as I did.I was in a unique legal status to do that.It took me time to even realize the laws that pertained to me regarding the offset factor of FTCA.

This is why I recommend lawyers for FTCA.It took me quite a bit of time to study and understand FTCA laws.

I dont recommend anyone filing FTCA without a lawyer unless they have to.

I spoke to Doug Rosinski about 2 weeks ago. He is not a malpractice lawyer.He is overwhelmed and unable to take on new claims-he has his hands full as it is.He seems to specialize in Atomic veterans and AO claims.He is a superb lawyer-this is one reason he is overwhelmed.

He represents a friend of mine.It is a very difficult claim of exposure to agents other than AO or radiation.He took a claim in the system for many many years with many denials and has found a new take on it.I think this vet has a 100% chance of an award now based on the new way Doug focused on his claim.

The Statute of Limits problem here-for Judy-

If she obtained an IMO for negligence or Section 1151 claim -the date she requested this IMO could potentially become the Statute of Limits date.

A good lawyer would try to get the SOL within the time frame because this is the first argument the VA will make.I filed FTCA within weeks of the beginning SOL date and VA still tried to give me a hard time over that with no legal merit.

Delta is right-in older posts I too saw the distinct association between this vet's meds and his untimely death.I think I even mentioned to Judy to give Dr. Bash copy of my posts on that and tell him this info came from Berta Simmons in NY-(he knows I was FTCA, 1151 widow and I did extensive research for my IMOs from him)

In Judy's case the SOL might not be what she needs to pursue a FTCA claim.

Since she gets DIC -a successful settlement would most likely stop her DIC checks.These are factors the VBM makes strong points on.

She certainly has the right to pursue a FTCA case but I feel the best route she could take is to attempt to CUE them on a prior unappealed decision that would prove her husband should have been SC 100% P & T for 10 years prior to his death.

I dont know what decision she should even file the CUE on.Probably the first denial she got from VA as they should have denied under direct SC as well as the Section 1318 ten year entitlement.That-in my opinion-is the decision she should file CUE on.But I am not sure-she would have to go through the entire file to see the best denial for CUE potential.

She would base the CUE on fact that VA had determined she was not eligible for entitlement under the ten year rule.

DIC regs have changed over the past 2 decades. This claim started long ago. She would also have to access all the DIC applicable regs within the corresponding dates.

If the BVA made the final denial-a Motion for CUE has to be filed with the BVA- if the VARO-then CUE claim has to be filed against the VARO following the criteria for CUE.

There are 2 veterans advocates who want to attempt to publish a very detailed account of what DIC claims involve somewhere on the internet as a viable link to DIC. There is a great need for that. The need will grow with the new AO presumptives and if HR 2254 becomes law.The need grows daily as troops are still being deployed overseas.I volunteered to do the AO DIC part. But none of us know how to find the time to do this extensive work.

Still the DIC regs and numerous BVA and CAVC decisions on the internet can help any widow or widower tremendously - denials as well as awards-in understanding DIC as well as the ten year DIC entitlement (and those regs have changed).The changed regulations are reflected in BVA decisions by the board's narrative and date of the decision.

Edited October 25, 2009 by Berta

[deltaj]

Judy, A search online under Ardriamycin and side effects links to drugs.com. That states that Adriamycin causes severes severe heart damage with prolonged use. The 20th edition of Davis's -drug guide lists quite a few adverse reactions and side effects of Adriamycin including, but not limited to, cardiomyopathy, anemia, leukopenia, thrombocytopenia, phlebitis at IV site, and tissue necrosis. There are a lot of websites listing side effects on this drug which are very serious. Review your last husband's medical records carefully for those side effects. By any chance was an autopsy done on your husband? Do you have any evidence that your husband had an enlarged heart? How long did he use Adriamycin and was it used for his service-connected disability? I think you should read 38 CFR 3.154, although I'm not certain this regulation will be useful to you.

Judy, Didn't you state in one of your posts that your husband developed cancer while in the service and that he was discharged from the military because of the cancer? I think I remember you saying that your husband was given a 100% rating by the military. What I'm thinking is that his branch of service probably put him on the Temporary Disability Retired List (TDRL) prior to discharging him. Please look through your husband's service records for any reference to TDRL. I think you should call the office that handles death benefits for the branch of service your husband was in, inquire whether your husband was considered retired and whether you are eligible for benefits from the Survivor Benefit Plan, and then apply for benefits from the Survivor Benefit Plan. You could also try requesting your husband's service records from the National Personnel Records Center to see if he was put on the Temporary Disability Retirement List prior to his discharge. I think I remember reading online that Survival Benefit Plan benefits for widows are no longer deducted from Death and Indemnity Compensation of widows.

Edited October 31, 2009 by deltaj