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]

Again I am hoping others will chime in here.

Just to add , VA law is quite clear:

“(d) The effective date of an award of death compensation, dependency and indemnity compensation, or death pension for which application is received within one year from the date of death shall be the first day of the month in which the death occurred. “

http://www.gpo.gov/f...pII-sec5110.htm

But that does not necessarily mean all DIC claims or SC vets claims can successfully get a better EED than they have.

The BVA decision of 1992 you received ( yet I dont know what the remand outcome was)

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 “

The more I read over all the posts here, the more confused I get.

While the Feres Doctrine prevented any action against the military, the Section 1151 claim appears to be denied per the recent SOC you received.Yet your husband did get treatment of radiation from the VA after service – did Dr. Bash's IMO fully cover that point?

Also :

As for statutory presumptions, service connection may also be

established for a current disability on the basis of a

presumption under the law that certain chronic diseases

manifesting themselves to a certain degree within a certain

time after service must have had their onset in service.

38 U.S.C.A. §§ 1112, 1131 and 1137; 38 C.F.R. §§ 3.303,

3.304, 3.307 and 3.309(a).

As stated by the BVA in :

http://www.va.gov/ve...es1/0704913.txt

A good service rep must review your husband's medical issues to see if there is any way your original DIC claim should have been considered under the chronic presumptives regs. If the original denial didn't adequately consider these regs ( 38 USC 3.307 and 3.309,) that could be a CUE- I just helped nanareis here in the CUE forum with a similar issue regarding a 1974 decision on the same Chronic Presumptive issue.

Again I am assuming, and that isn't the best thing to do- I assume that your original DIC claim made it very clearly as to how you claimed direct service connected death and 1151 death because the VA cannot commit a CUE if the cued issue was not very specific when it was first claimed.

I specified clearly both issues on my DIC application and under remarks I expanded on that and attached some of my evidence for both direct SC death as well as 1151 death.

Also

Non ionizing radiation is different from ionizing radiation.

Again I need to assume that non ionizing radiation was the type of radiation the inservice and post service treatments your husband was given ,for his cancer.

This case shows what I mean:

“As illustrated in the factual background, the claims file contains numerous medical opinions addressing whether the Veteran's brain tumor is related to in-service non-ionizing radiation. “

Order:

“Entitlement to service connection for residuals a brain tumor to include a seizure disorder is granted “

http://www.va.gov/ve...es1/1108804.txt

If the non iodizing radiation was excessive (not through military treatment but due to VA post discharge treatment this would make the Section 1151 claim valid for an “as if” SC death under 1151.

But you have to consider this- I received awards for both 1151 and then Direct SC death. My direct SC death award was based on the liberalizing AO criteria, thus my DIC EED for my 2003 claim was bsvk to 1994 when my husband died.

However a direct SC death is far better than a Section 1151 death award, as I explained here at hadit before.

Your recent decision states that the 1151 issue remains denied. If this was claimed on your 21-534 and has been continuously prosecuted all these years then this claim could potentially award the EED back to the original date of DIC claim. But I don't have the impression it was continuously prosecuted.

I strongly suggest getting a vet rep who has an office near you whereby you both can carefully go over the CUE potential.,until you can acquire a lawyer instead on your POA.

You can print off these posts from me if it might help the rep or they might even see this completely different than I do. There are many complex issues here and they are all contingent on how the DIC claim was filed long ago as to how the direct service connection issue and the 1151 issue were fully explained to the VA.

The rep will start at that point (the 21-534 application), and then go over all successive submissions and evidence and all VA and VARO decisions.As well as the SMRs and the VA medical records.

Any questions I asked here are questions I think the rep will ask you so this way you are prepared.

I have gone over the issues with the extensive but still limited info you have posted here and have only been able to make assumptions because this case is very intricate.

In the BVA 1992 decision,( the part that I quoted) I don't see the BVA had mentioned the claim for direct SC death at all, using the 1151 issue as "primarily" the issue claimed.

A good vet rep needs to thoroughly review the 21-534 application very carefully. The BVA statement concerns me a lot.

Edited June 8, 2012 by Berta

[Judy]

Thank you Berta for all the information you gave.

I have contacted attorneys and they are reviewing the case; will be interested to hear

back from them early next week.

They did review the I-9 and advised me to send it immediately. I did...certified and RR... u know how VA is..

I went through that my first time around where they claimed not to have received an IMO...

nothing goes to them without confirmation that they received it.

thanks to all,

Judy

By the way, I sent along your comments to them as well.

Edited June 8, 2012 by Judy

[Berta]

Good:

Just to add this again: (And please send my final post here to B & M too )

Hodgkins Disease is a Chronic Presumptive under this regulation:

http://www.law.corne...r/text/38/3.309

I fully believe that a CUE might lie in the very first decision you received from VA ( from a VARO but then I think the denial subsumed by the 1992 BVA decision so I cannot determine the date of which decision should be cued or were the CUE should be filed)

if the above regulations was not considered when you were first denied for a SC death.

But that depends on the way the original DIC SC death claim was stated.

In the multiple pasts posts here around 2008-2010 on the DIC claim, Delta also made the same point regarding the CUE issue as to the way the initial DIC claim was worded and supported with evidence.

Your husband had Hodgkins in service.

Your BVA decision I posted link to here ,in my opinion, fully supports the inservice Hodgins as well as Dr. Bash's IMO and the BVA decision is legal evidence that pertains to the CUE.

(I myself used legal evidence from BVA decisions to support my CUE claim as well as an OGC Pres Op )

You quoted Dr. Bash as stating in his IMO :

“The patient also had elevated blood pressures in service in April 1969 and his pressures were high throughout the years from his service time until he died”

This part of the Chronic Presumptive reg might also possibly be important here if the VA failed to apply this regulation (38 CRR 3.309) to the original DIC claim, and if an autopsy or anything in your husband's SMRs revealed cardio-renal dysfunction.

“Cardiovascular-renal disease, including hypertension. (This term applies to combination involvement of the type of arteriosclerosis, nephritis, and organic heart disease, and since hypertension is an early symptom long preceding the development of those diseases in their more obvious forms, a disabling hypertension within the 1-year period will be given the same benefit of service connection as any of the chronic diseases listed. “38 USC 3.309

I think that ( if the HBP claimed under 3.309) is a weaker scenario but possible additional approach than the fact that your husband had a chronic presumptive disease of Hodgkins in service.

If the VA should have applied 3.309 to the original DIC SC claim, but didnt, then that opens a bag of worms and the BP could be thrown in too.....If the medical evidence reveals renal dysfunction directly due to cardio affects of the HBP.

No stone can ever be left unturned when dealing with the VA.

As long as the criteria of 3.307 is satisfied, then 38 CFR 3.309 should kick in.

I think that is where the CUE lies, exactly like the situation from Naraeris in our CUE forum here regarding

Cue back to 1974.

B & M is a very busy law firm but I am sure they will respond to you as soon as they can.

I am sure that this statement came from our hadit member Delta, here in 2010:

"if the original DIC claim they denied was exactly the same as what they just awarded-with the same evidence in the past denial and recent award- seems to me it might be easy to find some legal error they made in the decision -to file a CUE claim."

It is the same point I have made here too so it gets back to the original DIC application and exactly how the SC claim was stated to have a valid CUE potential..

Edited June 9, 2012 by Berta

[Judy]

Thanks again Berta,

I sent your previous two posts to B & M and I appreciate your help more than you can imagine.

Thank you for your time and expertise!

Judy

[Berta]

B & M also has my contact info regarding something else, if they need it regarding my posts here on your claim.

[Judy]

Great! I forwarded that on to them ...

thanks,

Judy