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]

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

[Judy]

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

[Berta]

Judy -SOs and vet reps never help with FTCA claims.They dont have the training to handle them and cannot represent as POA in a legal matter like FTCA.

I am sure that some research could show cases in which a wrongful death occurred and FTCA was filed many years after the fact.It is the same as when a body is interred and suddenly a new autopsy reveals cause of death as murder.) such as with one of Drew Peterson's wives-if you follow that case.The family as far as I know has filed a civil wrongful death case,npt FTCA but still it shows that SOLs can be determined by many facts.

The SF 95 pertains to the circumstances of death of the veteran.

I put my charges all within # 8,I put 'not applicable' to # 9,expanded on how the malpractice occurred in # 10 (and where) and under 11 I attached separate page and I listed numerous VA doctors as 'witnesses'as I had a malpractice issue at opne VA that was covered up at another VAMC.

I filled out an amount in 12b and 12 c and then totaled it.

(The General counsel lawyer told me many forget to total this amount and the SF 95 is rejected.)

I then attached also some pertinent evidence.

The VA OGC will fight you on the Statute of Limits. It would be great to try to find another attorney who might see the SOL in a different way.It seems to me that if Dr, Bash supported the malpractice, then this could be the actual SOL.

# 8 should be worded as to the actual negligence, omissions of acts, improper treatment etc and the results (death)and state that the VA failed to give proper care and treatment as found in the standard medical community for similiar disability.

[Judy]

Thank you Berta,

I have the SF 95 printed and with your tips I will complete it and get it filed right away as SOL from Bash/IMO is running out fast.

Any thoughts on my fighting the reduction in rating as an "error"?

Judy

[broncovet]

Judy

There are some very specific rules the VA is required to follow when they reduce a Veterans disability rating. The courts have ruled when they dont follow those rules precisely, the Vets rating is restored as if it was never reduced in the first place.

For example, the VA must give the Veteran 60 days notice that they are reducing his rating. If they dont send the required notice, the court will give the Vetran his rating back. If you did not get the notice, and the VA cant come up with evidence they sent the 60 day notice, that is CUE and you should get hubbies rating back.

[carlie]

If you did not get the notice, and the VA cant come up with evidence they sent the 60 day notice, that is CUE and you should get hubbies rating back.

bronco,

I disagree and feel this would not at all be grounds for C&UE.

Do you have any links to support this.

carlie