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)

[Berta]

I reviewed the scans.

Page one1. The Duty to assist regulations cannot be used for a CUE claim.

page 2. DId you formally appeal the denial of adriamycin as contributing to death with an IMO?

I felt you had a strong case under Section 1151, but was the claim formally filed under Section 1151 38 USC?

Is this a decision for the CUE claim you filed AND a Section 1151 claim?

In the older scanned decisions,they were denied as to the contentions that the adriamycin medication contributed to your husband's cholestrol/trigyceride levels and thus caused the atherosclerosis that caused his death.

Did you re open that specific claim, exactly as it was stated in the first place ,with an IMO supporting those contentions?

I hope others read the scans and chime in here too.

You stated:

"it APPEARS that they may have judged the claim based on the regs for "IONIZING RADIATION" since that is

mentioned here.

I think this is what Dr. Bash may be focusing on. (??)"

If your husband had no inservice ionizing radiation exposure,the ionizing Atomic vet regs do not apply. But maybe Dr. Bash was thinking of 1151 regarding the radiation treatment for the cancer that ,if done by VA, was too excessive as a long term dosage ,and that this VA excessive radiation treatment led to the veteran's development of heart disease which caused his death. If that can be proven by a strong IMO, that would possibly help but then again, that would involve a new claim and would have nothing to do with an EED based on the older claims, from what I can tell..

If I were you I would call Craig up and just ask him or email him to explain exactly what he was focusing on here.

Edited June 2, 2012 by Berta

[Berta]

I read this all again.

I think a CUE occurred in the decision that is the third scanned page here.

I dont see how they applied the full gamit of Section 1318 of the DIC regs.

I dont see 1318 mentioned at all.

I assume you get DIC under the ten year of continuous 100% SC regulation.

Therefore ,at time of the veteran;'s death, regardless when the determination was made for the 100% SC for ten years or more, the older decision was flawed in that it did not consider every benefit you were eligible for.

The legal error they committed was not considering that the veteran died with a 100% rating for ten years prior to his death. That error manifestly altered the outcome of the original claim, because it prevented you the proper EED for DIC.

Although it appears that older decision was based on a Section 1151 issue the VA is supposed to consider every potential benefit a claimant is eligible for.

I hope you can obtain a new service officer or rep since these other ones dont seem willing to help you.

It would take a good thorough review of all of the older claims and all VA letters etc etc, to determine if there was a CUE ( to me it seems there was one) and how the CUE claim should be prepared.

Since you were last here at hadit when you got your award, there has been substantially more info put into our CUE forum here and even without a rep I am sure the info will help you determine how the CUE should be prepared and if this is the best basis for one, to recover a better EED.

If there had been a problem as I recall with the continuous 100% rating, I assume again that you get DIC because of the ten year rating ,that has been confirmed by VA as continuous for ten years or more, ,so this should not be an issue that would impact negatively on the CUE.

I am assuming here that you do not get DIC under 1151 but am still not sure.

Is there any other reason you get DIC that I am missing?

I am hoping others will chime in here as , in the past, it took quite some time for me to figure out your issues.

[Berta]

If this was your BVA decision of 1992, it eliminates my theory regarding the ten year 100% SC P& T :

http://www.va.gov/ve...es1/9208731.txt

It also might well eliminate what I thought was any basis for CUE.

In their remand the BVA stated::

:”The veteran's certificate of death shows that he died in

August 1990 from arteriosclerotic heart disease. At the

time of his death, service connection was in effect for

nodular sclerosing Hodgkin's disease, evaluated as

100 percent disabling from June 28, 1982. The appellant,

the veteran's widow, is claiming, primarily that drugs and

treatment provided for the service-connected Hodgkin's

disease caused the fatal heart disease. The current record

indicates that the veteran was provided radiation treatment

while in service and after service at the Department of

Veterans Affairs (VA) Medical Center in Houston, Texas. In

order to comply with the duty to a …..etc “

I realize I am making assumptions here in my replies to you without the facts.

Please correct me and post the BVA Citation number and decision date if this is not ,in fact, your BVA case.

If it is:

Was the 21-534 application for DIC filed within one year of his death?

Did you, on that application, ask for service connection of his death on a direct basis?

In other words did you check Yes ,or No to Question number 7 on the DIC application?

After finding the above BVA decision ( which I realize might not be yours) it appears to me that a DIC service connected death benefit was not even an issue in their decision for this widow.

Because the VA can only adjudicate what benefit we ask for.

Often the VA, as they did with my DIC claim, will certainly go over the different types of DIC that are in the regulations to see if,in fact, the claim can be awarded on any basis that the DIC regs cover.

Although with checking # 7 as Yes on my 21- 534 application I raised three theories of entitlement – 2 for direct SC death and also referred them to my re open of my husband's Section 1151 claim that was pending when he died.

Over a 12 year period the VA adjudicated all 3 theories and awarded on all three of them but nevertheless.......

Veterans as well as widows should raise,in their claims, every single potential reason for entitlement to a specific VA benefit and clearly tell the VA what benefit they want.

A vet or widow only needs to succeed in one theory of entitlement, but still I do not see in this BVA case, any request for DIC based on a direct SC death.

What did the 534 application state ,in your case, as to issue raised that would have warranted the VA to adjudicate for direct service connected death resulting from your husband's established SC disability?

“DIC was granted 2009 on the basis that (FINALLY) they admitted Service-connected... so SC DIC (retro only 2 years-date of RE opened claim) “

I have to assume again-

Was this due to a re-opened claim you had filed specifically FOR direct service connection?

I do not see now, where any claim for a service connected death directly due to an established SC condition was filed prior to the filing of the awarded and re opened claim.

What type of DIC do you receive?

There are many types of DIC:

http://www.attiglawf...-benefits/1060/

The case I found might not be yours.But it was the only case at the BVA s similar to yours there.

Advocates on the net have to make all sorts of assumptions every time we read and answer a post.We dont have the claimants files in front of us and certainly it is not a good idea for anyone to post and scan all of their VA stuff and put it here.

The VA however never assumes anything at all. If a claim isn't prepared correctly in the first lace, the claimant is locked into what the claim states.

From what I see in the above BVA case ,this was not a claim for DIC due to the veteran's established SC disability.

and therefore not a potential CUE issue at all or any other way to attain a better EED.

I certainly could be wrong as to the decision being yours.

And regardless if it is or not- I hope you seek a vet rep who has the time and willingness to go over every past decision you have as well (to include all rating sheets )as well as your your initial 21-534 form to see if the service connection issue for DIC on a direct basis due to your husband's SC disability was properly claimed Prior to your reopened DIC claim,

which to me, after spending a lot of time finding this above BVA case,

does have the correct EED for the DIC.

If your husband had 100%P & T for ten years continuously prior to death, or if you can prove he should have had that rating for ten years , based on medical evidence in VA's possession prior to his death, then ,if the initial DIC app was filed within one year of his death and you requested a direct SC death ( and checked Yes to question # 7)as well as what appears to be a claim for a Sec 1151 death, then you would then certainly have a basis for a CUE claim, in my opinion which would have to be filed as a CUE Motion against the BVA decision.

"The current record

indicates that the veteran was provided radiation treatment

while in service and after service at the Department of

Veterans Affairs (VA) Medical Center in Hou...." etc

If this is your BVA case, was your DIC finally awarded because of the disability that was found in service under the chronic presumptives regs?

Was this a case of 'new discovered service records' -

both of these scenarios could also potentially support valid claims under either CUE or the regs for newly discovered military records.

But only if a direct SC death was formally asked for ,on the 21-534 or by any addendum or additional letter you sent to VA

long ago, that clearly raised direct SC death and would have prompted the VA to adjudicate on that basis.

These posts might well help others out there.

Those of you who have prepared death files for your spouses in the event of your death need to explain this stuff to them as well.

# 7 on the DIC app should always be checked YES!!!!! and then any other potential entitlement under any other theory (as within the DIC regs) should be expanded on as well.

Refer them to additional pages attached to the 21-534 if needed and put the veteran's C file number on those pages and their name and address, until the VA formally puts the X before that number and it becomes the survivors C file number.

?

Edited June 2, 2012 by Berta

[Judy]

Berta,

I must admit that I am quite confused and sorry to be so "tunnel visioned" when it comes to all this but I am.

I am posting here the 2009 SC DIC award (effective date 11-2-2007; date of the reopened claim) so that you can easily see their

decision, reasons and so forth.

I don't mean to take up so much of your time but I appreciate your expertise as you are the most knowledgeable person I have ever known of.

I am just trying to figure out if I have ANY basis for an EED of any kind.

thanks so much (again),

Judy B

Edited June 2, 2012 by Judy

[Judy]

Sorry that I failed to answer your questions....

I filed for SC DIC within 6 weeks of his death (as soon as I received DC from County ME)

"Did you re open that specific claim, exactly as it was stated in the first place ,with an IMO supporting those contentions?"

YES, I did (as they state they considered IMO from Bash on 2009 SC DIC Award).

I hope the previous attached scan tells enough info.

Judy B

On ORIGINAL 21-534 filed in 1990 , question 7; the answer was "YES"...

Edited June 2, 2012 by Judy

[Berta]

Thanks for clarifying this Judy with the award letter.

Since you did file the 21-534 in 1990 and did check Yes to # 7, I am confused with that BVA decision-if it is yours.

This now gets me back to thinking a CUE was committed by the BVA.

Was that your actual BVA decision that I posed the link to?

Did any other BVA decision subsume that one ( meaning any additional BVA decisions?)

The decisions says:

:”The veteran's certificate of death shows that he died in

August 1990 from arteriosclerotic heart disease. At the

time of his death, service connection was in effect for

nodular sclerosing Hodgkin's disease, evaluated as

100 percent disabling from June 28, 1982. The appellant,

the veteran's widow, is claiming, primarily that drugs and

treatment provided for the service-connected Hodgkin's

disease caused the fatal heart disease. The current record

indicates that the veteran was provided radiation treatment

while in service and after service at the Department of

Veterans Affairs (VA) Medical Center in Houston, Texas. In

order to comply with the duty to a …..etc “

Radiation treatment in service......he not only had this condition in service, he was treated for it in service.

Dr. Bash's IMO clearly awarded this claim with a medical rationale for the nexus to his service.

It gets back to the Remand.

http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp92/files1/9208731.txt

Was your husband medically discharged for the cancer?

Obviously it had been noted in his SMRs because Dr. Bash's opinion is based on the radiation treatment in service.

Since the 534 clearly requested a direct SC death as under # 7, were you able to submit to the VA sufficient information at that time to support the claim?

Did the VA ever say his SMRs were 'silent' for radiation treatment?

Did the VA ever say they could not find his SMRS?

Something is wrong here and now I again feel this is a basis for a valid CUE claim,

unless the claim for DIC at that time did not have adequate information as support and was considered as not “well grounded”.

I realize now that the claim for Section 1151 was not substantiated because these treatments that Dr. Bash Sced fell under the Feres Doctrine from what I see in this decision.

One cannot sue the military for malpractice.But Dr. Bash ( who knows his stuff in and out) successfully

prepared an IMO that awarded for direct SC.

Still I find myself asking you many questions here and yet it is impossible to know the actual circumstances of the original DIC claim or even the remand outcome.

I suggest that you seek a good vet rep, and dont hesitate to drop them if they dont seem able to help you and find someone else.

These complex issues are difficult to interpret without the entire record, and thanks for the compliment, but most accredited vet reps received the same Basic Training Certificate from NVLSP that I have and

they should be able to assess every potential here for a CUE.

They will need to see every BVA and VARO decision you have received. I cannot detemine if the BVA decision should be CUED or if something else, unappealed happened after that (like the outcome of the remand.)

But remember that a CUE claim requires satisfying 3 “prongs” as VA says:

Those 3 prongs of the criteria are explained in our CUE forum here.

Also the vet will have to consider Bell V Derwinski in the context of any CUE issue here because of the dates of the BVA decision that might contain CUE, particuarly if BVA made more than one decision on this claim. The Bell decision came in 1992.That date migh tbe critical to your claim.

CUEs are much like the Watergate question, asked by a Senator when Watergate occurred:

What did they know and when did they know it.In essense , thiss the constructive notice factor of Bell V Derwinski.

A CUE rests on established medical evidence at time of the alleged CUE in VA's possession.

This was the biggest hurdle I sort of expected myself on my CUE claim as it involved records from 1988.

But it wasn't an issue at all. Yet it could be in your case.

The rep will know what Bell V Derwinski (1992) is all about.

I posted this info here on Bell about 6 years ago.

It is basic VA case law now.

I feel I have nothing else to suggest here Judy but hope that you pursue the EED issue.

The questions I asked are questions I feel a vet rep will need to ask you as well.

If the rep sees the BVA made a CUE, then a Motion must be filed for CUE against that decision and sent to the BVA. The rep will know how to do that. If the VA denies the CUE claim then you could obtain an attorney.

But Vet reps are very well trained and well paid to handle claims as complex as this one.

The biggest problem with vet reps-in my opinion- is VA claimants themselves who ,over the years, have not taken them to task to do their job properly

But with a good review of all of the decisions you have from the VA, to include all rating sheets and the recent award letter, I am sure a vet rep can best advise how to proceed here.

I am still really just assuming a lot here too and am uncomfortable doing that, because there is so much more that is involved in this entire issue you have and ,in that respect, the internet limits how far we advocates can go on these types of claim issues, which take a one to one hands on approach with all the claims info available (which unfortunately can be a very large stack)

I suggest getting a rep who is within your locale,so that you can make a one to one appointment with them and whose POA has an office in or near your VARO.

You can also make a written request of any former POA you had for a copy of their files on your claims.