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]

"if the original DIC claim they denied was exactly the same as what they just awarded-with the same evidence in the past denial and recent award- seems to me it might be easy to find some legal error they made in the decision -to file a CUE claim."

It was exactly the same evidence EXCEPT for the IMO I provided when I reopened the claim.

What is tatamount here is this: The 100% rating from date of discharge in 1969 was lowered by VA only 13 months after discharge. They lowered it to 30% (because he was working AND did so when I applied for ed. benefits!) WITHOUT any evidence in the med recs showing a C & P exam at that time. then 10 years later during a cancer recurrence, the VA again rated him at 100% and remained so until the date of death 8 years later. IF, I repeat IF the VA had NOT lowered his rating, he would have been 100% for 22 years at the time of his death and therefore all of this would have been moot... the SC DIC original claim filed by me at time of death in 1990 would have sailed smooth as silk. I am looking for a way to prove that this re rating was the problem...if I can prove that point, then the EED back to date of death in 1990 would surely be granted.

I just don't know for sure how to tackle this.

ALSO:

" If your most recent decision awarding DIC was within 12 months, then I would appeal it for an EED. However, if your most recent decision awarding DIC was more than 12 months ago, then you would need to meet the stricter "CUE" standard criteria.

JMHO."

Does this mean I can appeal the current award (6 months old now) for an EED to date of death? That I'm not sure.... reading Berta's comment, and knowing the current award was based on the RE-opened claim date, where does that leave me any possibility of EED for 1990?

Judy

Judy, Your husband was receiving Social Security Disability when he was reduced by VARO. Please read 38 USC 5105 and Murincsak v. Derwinski. Did you use a joint application for DIC and V.A. benefits which you obtained from Social Security? I read a BVA case where this got a widow an earlier effective date on DIC even though she had checked on the application that her husband's death was not service connected. Did your husband's V.A. file or medical records show that V.A. was aware that he was receiving Social Security benefits. What I'm thinking is that after you submitted your claim for survivors benefits under 42 USC 402 that because of 38 CFR 3.201 V.A. was presumed to have received evidence that your husband was receiving Social Security Disability when his rating was reduced by VARO, evidence which was received by VARO in support of your pending claim for DIC. V.A. as far as I know always must consider evidence from Social Security that a veteran has been found to be unable to do substantial gainful work by Social security because of a service connected disability. (Frankly, I can't remember the laws and regulations clearly on this but believe this could be a winning issue if it was worded according to law, regulations, and veterans cases on this.) Thus, I think your initial claim for DIC should have been granted because VARO was presumed to have evidence of record from Social Security of the wrongful reduction [of your husband's 100% rating being reduced despite the fact that he was receiving Social Security Disability] when your original DIC claim was denied. Furthermore, I think the Secretary has an obligation under 38 USC 5108 to reopen your denied claim based on that new and material evidence from Social Security. I think this could be argued somehow as a CUE by V.A. but you need help from a representative knowledgable about clear and unmistakable error to help you formulate your CUE claim under 38 CFR 3.105. Why did your husband only receive Social Security Disability for about a year? Now to the situation of wrongful reduction and your possible entitlement to accrued benefits. Do you have a copy of your husband's C file? If so, you need to look carefully at what evidence of record was listed on the rating decision reducing your husband's 100% rating. (See 38 CFR 3.343 and 38 CFR 3.344 as those regulations existed at the time of the rating decision which reduced your husband's 100% rating.) By the way, does your husband's V.A. file or his V.A. medical records show that V.A. was aware that he was receiving Social Security Disability.

Edited November 9, 2009 by deltaj

[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, Awhile back I read a case where the veteran died of atherosclerotic heart disease and after his death his widow submitted his service records, showing her husband had hypertension in service, in support of her pending claim for DIC. She won DIC so I obviously I would like to know if your husband's service records showed he had hypertension in service. I am asking this because hypertension causes plaque to build up in the arteries. Hypertension, as far as I know is characterized by a systolic of 140 or above or a dystolic of 90 or above but I think V.A. requires it to occur on three or more ocassions in service. What I am thinking is that if your husband's service records showed hypertension in service and your DIC claim had your husband's death certificate attached showing atherosclerotic heart disease as his cause of death then V.A. should have granted the original claim for DIC instead of denying it. Since your husband's cause of death was atherosclerotic heart disease I think you should read 38 CFR 3.309 and review his records to see if he had a cardiovascular condition while in service.

Edited December 5, 2009 by deltaj

[Berta]

Good point Delta-

I forget whether Judy's husband was Vietnam in country or not-

VA Central told me they are going to go through all claims denied in the past for Ischemic heart disease and contact those AO veterans -meaning they don't have to file a claim under the new presumptives.

However- although my source for this was a good source- I sure as heck do not believe VA will really do that-

and no vet or widow should depend on them.

They cant even handle the AO claims they have under the prior presumptives correctly in every case.

Vets and widows need to dig out now any denials for ischemic heart disease, Parkinsons, or Hairy Cell B leulemia and re-open the claim.

There have been a staggering 16 more Thailand AO awards along with the recent CONUS AO award.

I know the VA will be overwhelmed with these new claims- that is if the VA does review past denials for these claims and/or the vet has a vet rep who recognizes their POA vet has basis fopr re-open under the new regs.

I just hope that vets are getting fully aware via electronic vets communities and the media of these new presumptives.

There could be thoudsands of widows affected by these pending regs too.

[Judy]

Finally I have received a (negative) decision from VARO.

I have not been on here for a while, life get in the way sometimes.

I want to thank all who have contributed advice and help as I can assure you without it I would never even have won SC DIC effective Dec 2007 (date of re-opened claim).

I filed a CUE for EED back to date of death (1990) as original claim was denied repeatedly and was final in 1995.

Having briefly restated this case history, here is the current denial wording from VARO:

"A clear and unmistakable error is not held to exist and effective date of previously granted death benefits is confirmed. Your dependency and indemnity compensation (DIC) payment will continue unchanged."

***They show and I quote:*** "EVIDENCE: VA Form 21-4138....Statement in Support of Claim, November 9,2009.

Statement from Judy ... December 9, 2009

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***

**continuing quote**** "......In the statements from Judy ...., the validity of Dr.(name of VA doctor from original 1990 claim) reviewed information and opinion was questioned and requested for review for difference of opinion and possible CUE . The claim's file includes our request to have the evidence in the claims file reviewed and an opinion rendered based the evidence in the file. The file was documented as sent for review. The opinion by Dr (name) was sufficient based on our request."

***If you all remember, this "opinion" (as in the C file!) was nothing but a four sentence statement on a MEMORANDUM paper. It stated that he had reviewed the file on veteran (named) and determined that "there is no causal relationship between the veteran's SC disability and the cause of death on the death certificate, arteriosclerotic heart disease." ***

(***veteran was 100% from date of discharge 1969 for non-hodgkins lymphoma***)

***I stated in my statement to them (mentioned as evidence) that the VA doctor's statement was four sentences on a Memorandum and that it did not meet the criteria as set forth in VA reg (named) for a medical opinion as it did not state any facts of medical evidence in the veteran's file at the time.***

**continuing quote***..." The mentioned medical opinion from Dr. Bash was not of record at the time of our decision on March 17, 2008. The IME from Dr. Bash was not received until May 30, 2008. Because it takes medical evidence to refute medical evidence, the earliest effective date for benefits is November 2, 2007, the date of receipt of your reopened claim as the decision on your previous claim in 1995 was final."

..."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)....

The reason they quote Dr. Bash's opinion was not received until May 30, 2008 is because they LOST the one that was sent in December 2007 when the claim was originally reopened. Not sent certified mail but sent by SO at the time.

In reference to earlier posts by Deltaj and others, the social security disability benefits were being received from 1969 through 1970 (only 12 months duration) and when the VA reduced the rating, he had been receiving them for 9 months, with 3 months yet remaining). This was not related to a later date (when death occured) as the ss benefits ended after the 12 months. He was employed at that time (1970.)

Doctor Bash's IME even stated that during the 12 years from 1970's reduced rating until the VA again awarded him 100% in 1982, he was NEVER CURED and had received treatment for recurring SC disability multiple times. Bash also states" The patient also had elevated blood pressures in service in April 1969 and his pressures were high throughout the years from his service time until he died. It is apparent from the pts records he had hypertension (diastolic) while in the service based on the ..." "Long standing hypertension is a well-known cause of cardiac disease and this disease can be asymptomatic"...for the first 15-20 years even as it progressively damages the cardiovascular system".

"He had mediastinal mantle radiation, which by its natuare causes radiation damage to the heart and surrounding strictures because the shielding process is not absolute. Radiation is a known cardio-toxin and damages the cardiac small/large blood vessels, valves and cardiac muscle wall....In my opinion this patient's MI was likely directly caused, in significant part, by his chest radiation in the late 1960's. His heart was certainly further damaged (muscle and valves) by his multiple years of chemotherapy regimes of Cytoxan, Adriamycin and Vincristine used to treat his service induced lymphoma.....His heart showed weakending as early as 1984 when he presented with tachycardia. Tachycardia along with a low ejection fraction both indicate heart wall muscle weakending which of course is consistent with the expected long term cardio-toxic results of radiation and chemotherapy.....

**BASH WROTE**; I disagree with the rating opinion and the medical/hysician opinions for the following reasons;

1. These opinions are not based on standard medical reasoning/logic criteria as this patient's demise should be analyzed using all potential primary and secondary service related cuases. For example, these opinions do not consider the short or long term effects of this patient's two radiation courses on his heart function via vascular damage, which according to the record was dimished post 2nd radiation and chemotherapy as I explained above.

3.These opinions do not explore, consider or comment on the chemotherapeutic effects of radiation on small/large vessel damage to his heart muscle and/or how this very likely contributed to the development of ASHD and/or how these two steps very likely lent assistance to and/or significantly contributed to his demise.

5.These opinions do not explore, consider or comment on this patients dimished cardiac function following his courses of chemo and radiation as documented in the record and how that significantly contributed to his demise.

6. These opinions do not document medical references concernin g the late effects of radiation and chemo therapy on cardiac function (that were available at the time) or how these references might provide rationale and/or be incorporated into their opinions." (END OF BASH IME QUOTES)

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?

Thanks to everyone,

Judy

[john999]

I would get a lawyer now that VARO has denied your CUE. Don't give up. They denied my CUE but I hired a lawyer and went to the BVA. If they deny me I go to court. If a good VA lawyer says you don't have a shot then you can decide. They want you to quit.

[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.