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]

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?

YES, that was my BVA decision on your posted link...(BVA of 1992 with REMAND)

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

BVA dated 1994 that I posted yesterday (above)(saying that when the case was 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) etc etc (posted above)

This is the ONLY other BVA decision on the SC DIC claim

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/ve...es1/9208731.txt

Was your husband medically discharged for the cancer?

Yes, USAF 100% (took VA comp from 1969 until VA dropped rating to 30% in 1970-71, then vet returned to USAF for comp ---UNTIL cancer recurrence of 1982; THEN took VA comp again at 100% until date of death 1990)

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

Correct.

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?

They denied it based on "insufficient evidence to support the "causal relationship" between the SC disability and the death cert COD. (no IMO submitted; I didn't even know what an IMO was at the time)

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

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

In the BVA REMAND 1992; it states "RO must obtain all pertinent records of treatment for the veteran's Hodgkin's disease provided during service and in the post service years (and goes on to detail that to the RO)...

this would indicate (to me) that BVA did NOT have all the SMR's at that time (how about the RO didn't possibly use them in the 1990 decision either??)

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”.

(more confusion).... above, the BVA said it first thought the claim was "well grounded" but now believes it is "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.

Correct.

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.

Correct

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.

I will take your advice on finding another SO (if anybody knows a good one in HOUSTON, please speak up!)....

I still don't know if I should file this I-9 appealing the denial of EED on the current SC DIC AWARD. (I do NOT want to get/pay for an IMO on this if it isn't worthy; but would rather have one for CUE if I file a CUE)

Does that make sense at all?

thanks,

Judy

Edited June 2, 2012 by Judy

[Philip Rogers]

Personally, I would pursue it as a CUE, especially since they subsequently awarded DIC in 2009, retro to 2007. I feel they should have awarded it back to 1990. I would think it would be worth getting an atty. jmo

pr

[Berta]

Philip -you re RIGHT!!

Judy has already filed the NOD on the award, I think and has the I-9 form to prepare------ I kept losing track of that fact.

Judy, Bergmann and Moore ,attorneys at law for veterans claims, are a click away at our main page.They could possibly assess your claim by email or by phone.

I think Carrie Weletz, from their firm might have done a SVR show on CUE claims too.

She is a suberb lawyer and has done many shows at SVR that are available here:

http://www.svr-radio.com/archives.html

I think I was on a show with her about CUE claims but forget which one it was.

[Judy]

Thank you both very much; I have contacted Bergmann and Moore via their website and

will await a reply from them for discussion.

Judy B

[Philip Rogers]

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

Thank you both very much; I have contacted Bergmann and Moore via their website and

will await a reply from them for discussion.

Judy B

[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

Thank you Philip....I sent you a PM

Judy