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 have spoken with atty from B & M; sent requested documents to them but haven't heard any thing back yet.

I am ready to mail the I-9 Appeal for the BVA....

Berta, I don't know how you feel about it but I would like to have your opinion of my (completed) I-9; just sayin....

I don't want to take up your time; I know how busy you are already and how much you do to help everyone

on the board; you are greatly appreciated I can assure you. I wouldn't even be where I am today but for

the help of you and others on the board.

thanks,

Judy

[71M10]

Is the lynch pin on this, the statement that the claim was not well grounded due to a lack of exposure to Ionizing radiation? If they bounced it as not well grounded based on radiation, which was not the crux of the claim but just one of the many treatments afforded to him and choose to ignore the fact that the medication he was given has an FDA required warning on heart disease. A warning that directly warns of risk during treatment and a continued risk at any time in the future, even after discontinuance of treatment. That is a pretty strong government required warning, again a warning - not just an entry in the side effects list. i looked the Drug up in the NIH(national Institutes of Health) drug list.

I liken it to saying he was killed by a bullet while eating an MRE in combat. The VA dismisses the claim as not well grounded because MRE's are not a known cause of death(just gastric distress!).

Best regards,

[Berta]

Judy, NVLSP recommends using this statement on the I-9:

"I take exception to and preserve for appeal ALL errors the VARO may have made or the Board hereafter might could make in deciding this appeal. This includes all legal errors, all factual errors, failure to follow M21-1,all due process errors and any failures to discharge the duty to assist as violation of basic VA laws and regulations within 38 USCS and 38 CFR."

And then state why their decision is wrong.

I posted that statement here quite some ago ago but anyone looking for I-9 info should hopefully find it.

I will be happy to go over the I-9 when you can scan and attach it here to a post.Please cover your name, address and C file number.

[Judy]

Berta,

Here are the scanned copies.

I-9 BVA Appeal regarding questions 9 and 10 ...

Judy

thanks,

Judy

[Judy]

Is the lynch pin on this, the statement that the claim was not well grounded due to a lack of exposure to Ionizing radiation? If they bounced it as not well grounded based on radiation, which was not the crux of the claim but just one of the many treatments afforded to him and choose to ignore the fact that the medication he was given has an FDA required warning on heart disease. A warning that directly warns of risk during treatment and a continued risk at any time in the future, even after discontinuance of treatment. That is a pretty strong government required warning, again a warning - not just an entry in the side effects list. i looked the Drug up in the NIH(national Institutes of Health) drug list.

I liken it to saying he was killed by a bullet while eating an MRE in combat. The VA dismisses the claim as not well grounded because MRE's are not a known cause of death(just gastric distress!).

Best regards,

You're right! I like your analagy about the MRE's...how true.

[Berta]

I hope you can get either a vet rep or a lawyer to look over this appeal before you file it.

I still see this as a CUE issue, as reopened claims traditionally do not go further back then the date of the reopened claim for EED.

In that respect the decision you recently received is,in my opinion, correct.

CUE claims,as far as I know, are the only way to recoup a better EED if the VA did make a clear and unmistakable error.

I just wrote a long rendition on my point as to the CUE, , and I kept going back to read the other posts and then suddenly realized I could not determine exactly what decision you can file the CUE on- I assume it is any denial after the BVA 1992 remand.????maybe by the RO ???

Or did the BVA itself deny that claim as the appeal mentions the BVA 1994 decision and the remand was in 1992.

If it even was your case...... that I already posted link to here last week.

If the BVA made the CUE,then a Motion for Revision under CUE has to be prepared and filed with the BVA.

A BVA Motion for Revision under CUE is controlled by

38 C.F.R. § 20.1404(a), (b)

http://www.law.cornell.edu/cfr/text/38/20.1404

If the VARO committed the CUE, the CUE claim needs to be filed against the specific VARO.

I hope others will chime in on the I-9 appeal you attached, and filing it would keep the matter in the appellate process until you can get a vet rep or lawyer.

There is no time limit on CUE claims, so by time you get help, the CUE Motion can still be filed.

I still see the CUE issue as your best way and perhaps only way of attaining a better EED.

.