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]

I can't seem to find an address for sending my FTCA claim to OGC in Washington, D.C.

Can anyone post the address?

thanks,

Judy

[Judy]

Berta,

Items 3,4,5,6 and 7 on SF 95; is that referring to claimant OR veteran deceased?

thanks,

Judy

[Judy]

I just received this email from my SO with AMVETS and must say I am shocked!

They won't even represent me if I choose to file an appeal??

I am posting the entire quote.

QUOTE: "

Dear Ms. B.......,

The Houston VA Regional Office is currently handling appeals received in 2007 so you can just imagine how long it would be before they get a chance to review your case. Because of this, AMVETS uses appeals as a last resort. I would advice you against filing an appeals What I would recommend is that we simply submit a request for an earlier effective date which could take 4-6 months rather than 24 months for an appeal.

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. The previous medical evidence associated with the claim did not. On the contrary, a BVA decision 3/4/94 concluded that "there was no known relationship between the presence of Hodgkin's lymphoma and the use of Adriamycin and the development of arteosclerotic disease. A VA examiner found no causal relationship between such treatment and the development of the fatal heart disease." Had Dr Bash's statement been submitted then the VA would have granted the claim based on reasonable doubt despite the difference of opinion. Unfortunately, that difference of opinion was not made until 10/31/07. Another attempt to file it under a negligence 1151 claim was denied 3/21/08 because there was no medical opinion to support the contention then either.

As a courtesy to you we can submit the request for an earlier effective date but AMVETS will be unable to support an appeal. Please let me know what you prefer to do so I can return the file to the VA.

Thanks,

AMVET rep signature"

[carlie]

If the facts stated below by AMVETS are true,

then I would agree and go with a request for EED.

jmho,

carlie

[Berta]

"Berta,

Items 3,4,5,6 and 7 on SF 95; is that referring to claimant OR veteran deceased?"

Judy I used these answers asa they applied to my husband using his date of death as the date of the 'accident or event' and I got the time from the Death Certificate.

"I can't seem to find an address for sending my FTCA claim to OGC in Washington, D.C.

Can anyone post the address?

thanks,

Judy "

I posted this info here yesterday somewhere-if I cant find it I will post it again.

[Judy]

Yes, Carlie I can see where that would be more expedient.

HOWEVER, I also want to CUE them on the unappealed decision of 1994 due to the decrease in rating in 1970 (from 100% to 30% with no C & P exam...he was still drawing SS disability at the time. Social security disability was only for 1 year and he was still drawing it at the time they reduced his rating. I have the IME stating that "veteran was never cured of the SC Disability, non-Hodgkins Lymphoma, during that time as indicated by the medical records".

Is there a possibility of getting EED based on this? Isn't this a valid CUE?

Judy