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

[deltaj]

There is a new federal circuit case on notice entitled AG v. James Peake. I suggest you read it in case V.A. provided a letter to you or your husband which did not notify one of you of your right to appeal a decision.

[Berta]

I agree that a lawyer could help here.

"Copy of Decision pertaining to earlier effective date for ionizing radiation exposure disability (No relationship to this claim as

this is not ionizing radiation claim)."

***This mention of ionizing radiation claim confuses me...greatly, as I do not understand what that means***"

Its seems that they took this term,"mediastinal mantle radiation" which was a definition of his treatment and then they assumed he was a Radiation vet - meaning an atomic vet-who was exposed to Radiation in Hiroshima etc.

This is the same type of manipulation that VA has used to deny my CUE claim-I just keep sending them the legal errors they made (which they ignore) and I rebutt everything they say.

Did you pursue any FTCA claim?

Did they develop the original claim as though it was am Ionizing radiation claim?And send a VCAA letter geared to that type of claim instead of the correct DIC claim?

Maybe that would be where the CUE would be found.They improperly applied M21-1 and 38 to the claim,thinkng it was ionizing atomic vet claim.

Are you able to scan this decision (cover personal stuff) and attach it here?

"Copy of Decision pertaining to earlier effective date for ionizing radiation exposure disability (No relationship to this claim as

this is not ionizing radiation claim)."

"The statement in the decision that "there could be a termination of your benefits depending on the outcome of the decision"....sounds like the ultimate scare tactic so I don't file again....anything. Of course I would NOT want to lose that, right?"

This sounds like a threat to me- if I were you I would contact the VA Office of Survivors -the link is here-and at the VA web site and ask them if this statement is appropriate.

I have never seen a statement like this from the VA before.

[Judy]

Deltaj: I don't believe we ever received a letter that did not state that the vet had the right to appeal.

Berta:

I will make a copy of the decision; white out personal data and scan into here so you have it in its entirety.

Meanwhile :

1)Did you pursue any FTCA claim?

yes, I filed it myself; got a call from a VA attorney who said the statute of limitations was LONG past and that there was no cause for FTCA claim here.

2) Did they develop the original claim as though it was am Ionizing radiation claim?And send a VCAA letter geared to that type of claim instead of the correct DIC claim?

No, absolutely not. Original claim (1990) and reopened claim (2007) were for SC DIC (and 1151), never any mention of "ionizing radiation"....ever. Until now.

3) "The statement in the decision that "there could be a termination of your benefits depending on the outcome of the decision"....sounds like the ultimate scare tactic so I don't file again....anything. Of course I would NOT want to lose that, right?"

This sounds like a threat to me- if I were you I would contact the VA Office of Survivors -the link is here-and at the VA web site and ask them if this statement is appropriate.

I have never seen a statement like this from the VA before.

Here is the actual sentence/statement in its entirety (from the decision):

..."Your grant was based on "benefit of the doubt". However, when there are 2 conflicting medical opinions, resolution of the conflicting opinions should have been determined before benefits were granted. If in the future a resolution is requested, there could be a termination of your benefits depending on the outcome of the decision."

The VA continues to make my case more convoluted at every turn. Thanks for pointing out "where" they most likely came up with the "ionizing radiation" statement as I was clueless regarding how that term was even mentioned. (and for the first time in Jim's case EVER).

I would like to know if someone here has a personal experience with an outstanding VA attorney as there are many. Some are not taking on any new cases as we all know. I wish I could have interested Rosinski but alas, that did not happen.

Judy

[deltaj]

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, My recollection is that your husband's death certificate showed his cause of death was atherosclerotic heart disease. Did his service records show that he incurred hypertension in service?

[deltaj]

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, Your husband's cause of death was atherosclerotic heart disease. He incurred lymphoma while in service. There is a known relationship between atherosclerosis, lymphoma, and radiation because radiation used in treatment of lymphoma causes atherosclerotic heart disease. That known connection was known to V.A. when V.A. denied your first claim for service connected compensation in 1990. Perhaps you could find a 1990 edition of the Merck Menual or Harrison's Principles of Internal Medicine mentioning that radiation treatment causes atherosclerotic heart disease or perhaps you could find some reference in your husband's VAMC medical records as to whether V.A. was monitoring him for atherosclerotic heart disease after they treated him with radiation for his lymphoma. You may have a case for CUE in the 1990 decision but you are going to need expert help from a knowledgable service officer at another service organization in my opinion. V.A. does allow claimants to submit medical treatise information in support of claims.

Edited March 27, 2010 by deltaj

[broncovet]

Judy,

I think the VA's statement,

"Your grant was based on "benefit of the doubt". However, when there are 2 conflicting medical opinions, resolution of the conflicting opinions should have been determined before benefits were granted. If in the future a resolution is requested, there could be a termination of your benefits depending on the outcome of the decision." (END OF VA DOCUMENT QUOTE)....

Is a bluff. I am unaware of any "exclusion clauses" to benefit of the doubt rule. They are trying to threaten you to keep you from appealing, suggesting they gave you something, then can take it away.

Reason I think so:

On my 4th decision, which awarded benefits (lowballed), the decision said something similar. "Altho the medical evidences does not show that the Vetera meets all or most of the criteria described for.....liberally interpreted, supports a conclclusion that the Veterans symptoms warrant this evaluation."

Altho I did not realize it at the time, now I am pretty sure it was a bluff because the VA cant flip flop and decide later not to "liberally interpret" the evidence.

You see, I think the VA has a hard time going back on their decisions. If the Veteran says something, the VA never beleives him. However, once the VA says it, then you can always use their words against them. How can the VA dispute their own words?