Should This Be Eed For Previously Won Dic Or Is It A Case Of Cue?

[Judy]

I hope starting a new topic is the correct thing to do.

I won very old SC DIC claim (I reopened in 2007), won in 2009, retro only to 2007.

I am working on getting EED (back to date of death, 1990).

I have a current Decision (denial) dated April 2012, and now must file BVA APPEAL (I-9).

I am working with Bash, he and I noticed the current VARO Decision lists part of the

EVIDENCE is:

""Copy of Board of Veterans Appeals Decision (BVA) pertaining to earlier effective date for ionizing radiation exposure disability (No relationship to this claim as this is not ionizing radiation claim) ""

I went back into my records to see where "ionizing radiation" was first mentioned (by them-I never used that term in my claim(s)) to find this in the BVA Decision dated 1994 (my original claim was 1990

and this was the BVA APPEAL to that ongoing claim). This is what I found in the 1994 BVA Denial:

""At the time this case was orinally before the Board in April 1992, it appeared that the appellant had presented a claim which was plausible and, therefore, "well-grounded" within the meaning of 38 U.S.C.A. $ 5107 (a) (West 1991). However, for reasons explained below, we are now of the opinion that the appellant has not submitted evidence of a well-grounded claim. ""

""In order for service connection for the cause of the veteran's death to be granted, it must be shown that a service-connected disorder caused the death or substantially or materially contributed to it.

A service - connected disorder is one which was incurred in or aggravated by service, or one which was proximately due to or the result of an established service-connected disability. During the veteran's lifetime, service connection had been established for nodular sclerosing Hodgkin's disease, which was rated as 100 percent disabling. According to his death certificate, the immediate cause of his death in August 1991 was arteriosclerotic heart disease. There were no other conditions contributing to death, and an autopsy was not conducted.""

........"" Arteriosclerotic heart disease is not recognized to be a potentially "radiogenic disease" under 38 U.S.C.A. $ 1112 © and 38 C.F.R. $ 3.309 (d). Consequently, the veteran's fatal arteriosclerotic heart disease may not be attributed to service radiation exposure, 38 C.F.R. $ 3.311b; see also Comboe v Principi No. 91-786 (U.S. Vet. App. January 1, 1993).""

......""Subsequent to the May 1992 remand, the United States Court of Veterans Appeals held that where the determinative issue in a claim involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible is required to establish that the claim is well grounded. Grottviet v Brown, U.S. Vet.App. 92-20 (May 5, 1993). Lay persons are not competent to offer opinions on medical causation. Espiritu v Derwinski, 2 Vet. App. 492 (1992). If no competent medical evidence is submitted to support the claim, it is not well grounded. Tirpak v Derwinski, 2 Vet. App. 609, 611 (1992). In light of this additional case law and the absense of competent medical evidence to support her claim, we must conclude that the appellant's claim is not well grounded. Accordingly, service connection for cause of the veteran's death is not in order.""

Now, my question.... Dr. Bash says "sounds like radiation error; should get EED".....

Can I possibly be awarded EED on this BVA APPEAL as it is related to my 2009 DIC award (retro to 2007) ??

OR

Is it necessary to open a NEW CUE claim in order to use this effectively (with IMO) to go for the EED?

Please can someone help me understand as I do not want to make a mistake here.

I am ready to file the I-9 and I read Berta's "verbage" on exactly how to word what I am "taking exception to".... VERY helpful!

Berta also suggested sending your exhibits (IMO too?) WITH the I-9 for them to have your evidence ......so it is very important

for me to KNOW if I should send all of this as it relates to my current claim for EED of the 2007 effective date of my DIC award.???

IF I need to use a CUE for this, then how would I respond to the current APPEAL?

Sorry to have written a book but I really need advice from you who really understand the law/regs etc., and you needed to know

all these pertinent facts to be clear on what is happening.

Just a word to explain my dilemma, I have had two SO's (AMVETS) and (TEXAS VETERANS COMMISSION) and neither one of

them want to assist or represent me anymore....can you believe it?

Thank you so much!

Judy B

( original case is in jurisdiction of Houston VARO)

[Judy]

Judy, I'm using Bergmann & Moore, myself. I just signed on w/them, in April, for my CAVC case. I received a letter from them last wk explaining the process and the time periods involved. I am quite pleased w/their communication w/me. Just sayin . . .

pr

How long did it take to get an evaluation of your case from B & M??

Judy

[Philip Rogers]

Judy - I don't know that I have gotten one, yet. I sent them my denial, which they reviewed and agreed to accept me as a client (took about 2 wks). They filed my case w/the Court and are awaiting my c-file from the VA. I believe the VA has 30 or 60 days to supply them w/my file. Once they review they whole file they will advise me. Once they reviewed my denial, it only took a wk to seal the agreement w/them. Hope this helps!

pr

How long did it take to get an evaluation of your case from B & M??

Judy

[Judy]

Judy - I don't know that I have gotten one, yet. I sent them my denial, which they reviewed and agreed to accept me as a client (took about 2 wks). They filed my case w/the Court and are awaiting my c-file from the VA. I believe the VA has 30 or 60 days to supply them w/my file. Once they review they whole file they will advise me. Once they reviewed my denial, it only took a wk to seal the agreement w/them. Hope this helps!

pr

Thank you Philip; that does answer my question. They have been "reviewing" my documents for 10 days now so I just wondered.

Judy

[Judy]

Still no word from B & M...... 12 days since I sent documents....still waiting.... emailed them and also left Voicemail for Carrie....

Hope I hear from them pretty soon.

Judy

[Judy]

Well, I heard from attorney and to say I am disappointed would be an understatement.

She didn't see any way that I would be able to file and win EED. No CUE; nothing at all that she could see.

Perhaps I should just give up on it.

Judy

[broncovet]

I would not give up yet. You wont beleive how many times I read where claimants hung in there, even when the chips were down and won. Since about 2/3 of the cases at the BVA are remanded or awarded, only about a third are denied. That means you have a 66% 2 out of 3 in winning. Rememeber even the judge could see something Band M did not, for example there will be many new cases, and one of them may be like yours. I had 2 lawyers and one VSO tell me I didnt have a case and I pushed on and got my benefits.

While this is a good law firm, remember the lawyers can, and do, "skim the cream". That means they dont take cases they are not sure they can win, because they put a lot of money in representing a Vet.

You still have 3 choices:

1. Take it to another attorney, maybe he is "hungrier" or maybe he sees something B and M does not.

2. Have a VSO represent you.

3. Represent yourself.

As CC says, Never Give up!