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]

I still do not know what to CUE them on.

The lawyer told me to CUE them on the "veteran was 100% disabled by VA for 8 years prior to his demise".....this is however NOT the way the reg reads.

THIS is related ONLY to the enhanced DIC amount.

He is quoting it as though it is the reg for obtaining SC DIC (in the original claim) without question. NOT TRUE.

I am receiving SC DIC (awarded under the "benefit of the doubt rule") AND I am receiving the ENHANCED DIC amount as well.

I, like Berta, do not understand how or why I was awarded the ENHANCED DIC if I did not MEET THE 10 year rule for the SC DIC in the first place.

Lawyer is indeed mistaken in telling me to file CUE using the the 8 year rule as a basis for CUE.

Again, this is a quote from the lawyer:

"The way I understand the rule is if the veteran were entitled to 100% rating for 5 years prior to death, the DIC is granted the surviving spouse."

and

"Where a veteran at the time of death either was "in receipt of" compensation or, in the alternative, was "entitled to receive" compensation, for service-connected disability continuously rated totally disabling for a period of not less than five years from the date of the veteran's discharge or release from active duty, eligible surviviors may receive benefits at DIC rates as if the veteran's death was service-connected."

My question regarding this above statement is this:( Veteran was discharged at 100% in 1969. Veteran was re-rated by VA in 1971 (to 30%) unappealed. Veteran was receiving continual care and treatment

for SC disease through and until June 1982 when again VA rated him at 100%, continuously until August 1990 when the veteran died.) DOES THIS " rated totally disabling for a period of not less than five years from the date of the veteran's discharge or release from active duty, eligible surviviors may receive benefits at DIC rates as if the veteran's death was service-connected." MEAN the

FIVE YEARS IMMEDIATELY PRECEEDING DEATH? OR DOES IT MEAN THAT HE MUST HAVE BEEN CONTINOUSLY RATED AT 100% FOR THE FIRST FIVE YEARS FOLLOWING DATE OF

DISCHARGE?

What is he talking about in saying "the rule is if the veteran were entitled to 100% rating for 5 years prior to death, the DIC is granted the surviving spouse"....

"if the veteran were entitled to 100% rating for 5 years prior to death, the DIC is granted the surviving spouse."

DOES THIS MEAN the

FIVE YEARS IMMEDIATELY PRECEEDING DEATH? OR DOES IT MEAN THAT HE MUST HAVE BEEN CONTINOUSLY RATED AT 100% FOR THE FIRST FIVE YEARS FOLLOWING DATE OF

DISCHARGE?

Needless to say, I am still very confused.

What is the basis (reg) that I am to file for CUE?

Thanks, sorry to be so repetitive but I lack adequate understanding at this point.

Judy

[Judy]

Berta wrote: "I will refrain from the enhanced DIC question you had as I don't understand how you did obtain enhanced DIC .This is a good question for your lawyer"

IF they did in fact ERR in favor of the claimant in this case;

CAN THEY RESCIND this decision ?? Is that possible?

Judy

[Berta]

There are years of posts here before and after the DIC award came.

I only had time to read 30 or 40 of them and have come to this conclusion:

The outcome of this more recent appeal could clarify everything and even perhaps make a CUE claim unneeded:

You were correctly advised here to file an appeal on the DIC award in 2009.

“Thank you Brocovet; YES, I will file NOD right away on the current decision.”

Judy, on Oct 14 2009

[broncovet]

Judy

I am not sure on what bases to file a CUE on either..the lawyer suggested it, and I just confirmed that it is usually best to follow their advice. If you dont understand the bases to file a Cue, then you should ask the lawyer who suggested it. He has reviewed much more of your file than we have.

Many times I see this happen. The Veteran is "just sure" that he identified a CUE. A more experienced person may look at that and say that that error is either not outcome determinative, or that it is debatable and does not meet the CUE standard of review. However, there is often another "Cue" that the Veteran missed, that a lawyer could identify..and win it. There are multiple possible CUES. Sadly, the Veteran often abandons his own case when he discovers his first "Cue" is not valid, and never persues "the real CUE".

You have two choices, IMHO. YOu could abandon your CUE or, you could seek another lawyer (or ask the first one that told you there was a CUE) to identify a CUE. Remember, you dont have to pay a lawyer for an initial consultation, but only if he wins you retro. So ask another, and another...until you find one sharp enough to identify your CUE.

The 6 P's are relevant here. Proper Preperation Prevents Poor Performance. That's only 5. Yes, the 6th is Persistence and it almost always wins.

I am sorry I cant help you more, but CUE's are details normally within the decision. Lawyers never take the clients assessment of the case and then make a judgement call. They read the decision themselves, and make their own assessment. By basing an assessment on the clients opinion of his case, you are limiting the choices to what the client has identified.

[Berta]

to clarify, the lawyer can be hired if the VA denies the CUE claim and a NOD is filed.

In the past Judy mentioned POAs or inputs from American Legion, TVC, and AMVETs.

AMVETS in mail posted here years ago summoned up very correctly her claims situation at that time.

Also in the award of DIC the VA mad a very unusual and ominious statement.

I have never seen the actual decision however that this excerpt came from.

I am sure the lawyer did however.

Judy needs to seek another vet rep to help her prepare the CUE claim.

Or read the wealth of info here, in our CUE forum, or purchase the VBM, to assess their info on CUE, read the CUE decisions from the BVA posted at hadit, and prepare it herself if no rep will help with that.

I am sorry but I , as well, cant help any more ,with these issues Judy.

The NOD you said you would file on the award letter might lead to a better result from the VA.

Edited September 28, 2012 by Berta