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)

[broncovet]

Judy

I have not seen your decision so I dont know if it contains "CUE" or not. I think its best to think of CUE as a "standard of review" and not some type of "error". While its true you can often find "errors" in the decision, CUE errors have to not only be outcome determinitave, but they have to meet the CUE standard of review. I see posters all the time who cry "CUE" for errors that dont meet the CUE standard of review, often because they are not outcome determinitive errors. If the Va forgot to capitilize the first word in a sentence that is not an outcome determinitive error.

This being said, the idea that your attorney is going to bat for you for a CUE is great news. He knows its a "rare kind of error".

I am glad you hung in there. Berta is the expert on DIC, and her agreement with B and M speaks volumes.

I think you should note that eed is based on the cue standard of revue anyway, so this is the hand you are dealt. You have to meet the Cue standard of review for your case to succeed. Luckily, for you, according to Berta and your attorney, you meet that criteria.

After a denial from the Board, I sent my case to an attorney. I found it interesting and enlightening that, while he discovered appealable errors, they were not the same ones I identified. He found others, and politely rejected the ones I had "discovered". I think that happens a lot.

I have to admit I was angry and wanted to "blast" the decision with every possible mistake, in part, venting over my anger of being denied.

The attorney, however, was not looking to vent, he was more interesting in winning benefits. And he knew the kinds of errors he had to look for to win, and skipped over my feeble attempts and got to the gold quickly.

While I have not won my full benefits yet, I am confident now that an attorney has accepted my case.

Like yourself, I am seeking an EED. In my reading on VBM, I found something very interesting.

YOU DONT ALWAYS HAVE TO FILE A NOD TO KEEP YOUR CLAIM PENDING. You see, if you send in paperwork to the VA, that is not a NOD, but suggests new evidence, this is a claim to reopen and you dont always have to file a NOD! It keeps the claim pending. I will try to find the citations for you, if you like.

[Berta]

Just to clarify

“her agreement with B and M speaks volumes. “

I have no idea who the attorney or law firm was here, and I didn't

get the impression that Judy has formally hired them.

She certainly needs the help of a vet rep or an attorney,in my opinion.

“YOU DONT ALWAYS HAVE TO FILE A NOD TO KEEP YOUR CLAIM PENDING. You see, if you send in paperwork to the VA, that is not a NOD, but suggests new evidence, this is a claim to reopen and you dont always have to file a NOD! It keeps the claim pending. I will try to find the citations for you, if you like. “

I would like those citations Broncovet.

Thanks. If it is from the VBM, just give me the page number and the edition date....I have all VBMs from1991.

You made a good point here Broncovet.

A survivor can claim CUE on a decision they got, as the survivor.

I don't recall of any way a survivor can CUE a decision that a deceased veteran got but hopefully someone will chime in on that.

A survivor's CUE ,as mine did, depended solely on a decision I received from the VA.

The veteran has been dead for 18 years next month and the decision I cued not only rested on his established medical evidence but on the 2 claims my husband called the 800# on the day he died and then made me promise to continue those pending claims if the VA “killed ' him. I had become the claimant after his death. .The decision I CUEd was mine.

His claims had never been denied by the VA in his lifetime and if they had been, I dont know if a survivor could CUE a denied claim of a deceased vet.

If I have time I will look into that.

There is another factor to consider for survivor's claims of CUE.

In my 2004 SMC CUE, the VA was well aware I had filed the 534 within one year after Rod's death and was eligible for accrued benefits-which they awarded years ago due to his PTSD claim.

The 'manifested ' altered outcome of the VA CUE error had a monetary value that might have been larger then even the IHD retro award. I received no audit with that decision and need to check that out but in any event,

my point here is I was legally eligible for an accrued retro CUE award, due to the pending claims Rod had when he died, that I became the claimant on.

(No substitution regs then, a survivor had to re-open the claim in their own right.The claim 'died with the vet. But the survivor could resurrect it as I had to explain to the POA rep I had at the time. )

How else can VA award money for a CUE, to a survivor of a veteran? My point is a lot rests on the initial DIC form 534 to determine eligibility of accrued awards, if a survivor has a successful CUE.

The attorney mentioned here and I ,are only basing our opinion on possible CUE potential.

It would take a complete review of all decisions ,in this situation, to really say for a fact that a CUE exists.

And even then, the CUE must be proven to the VA.

There have been many posts here on Judy's issues.

Somewhere in one of them I saw potential basis for CUE but I don't have time to review all those posts.

In my opinion that is the only way Judy could possibly garner any additional money from the VA.

“I agree with your lawyer that the VA might have committed a CUE “

“might have” however ,can only be determined with a full review of all decisions, by a vet rep or this lawyer if they have been hired.

But the worst claims of all are those that are never filed.

I bet there are far more CUE potentials in vets and widows past denied decisions ,then we will ever know.

I mentioned here the other day that CUE questions here should show the claimant has at least reviewed the extensive CUE info in our CUE forum before they ask CUE questions.

The info here in that forum will help the claimant determine if they,in fact, have a solid basis for a CUE claim. Or they could try to get a lawyer or vet rep to review their past decisions to determine that.

[broncovet]

Ok. Berta. I found it, here:

8.1.1.6 The Impact of Submitting, within the Appeal Period, New and Material Evidence from Any Source

It goes on to state:

"This means that if an RO denies on July 1, 2009, a claim received on April 1, 2009, and new and material evidence is submitted 360 days later, on June 26, 2010 � that is, five days before the deadline for submitting a notice of disagreement � the claim is still pending even if the next five days go by without submission of an NOD. If the claim is ultimately granted, the date the claim was received would be April 1, 2009, not June 26, 2010, when the new and material evidence was submitted. In this scenario, the VA cannot consider June 26, 2010, as the effective date under the theory that the April 1, 2009 claim became final due to the fact that an NOD was not submitted within the one-year time period and the net result of submitting new evidence was the filing of a reopened claim.71"

My opinion, that I posted earlier, is my paraphrasing of the the BOLDed statement, above.

Edited September 26, 2012 by broncovet

[broncovet]

Berta

Mine is the 2010 edition, as I could not afford the 2011 edition, so my information may be out of date.

I do think that tidbit is of big time importance to Vets, especially seeking an EED. Classic VSO knowledge suggests if you dont file the NOD in a year, you are toast and have to meet CUE standards of review. Not necessarily so, according to this. Reopening by N and M evidence, within the one year appeal period would serve to keep the claim pending for effective date purposes, even if the NOD was not filed in the one year period.

The reason this is so important is that the Vet should go through their C file, on those unappealed claims and see if there was any document that suggested New evidence...it would work "almost" like a NOD in that it would keep the appeal pending. Its the Va's responsibility to reopen if the Vet submits new evidence and, if they do not do so (and they usually probably do not), then the claim is still pending. Of course, when the claim is "pending" you can submit new evidence all day long, and it will be assumed to have been submitted at the beginning of the claim.

[Judy]

Thank you Berta and Broncovet,

I did "hire" (signed representation agreement) the attorney firm (NOT B & M...they didn't want it).

That being said, I forwarded ALL decisions(and a lot more) to attorney and after review of all, they

said I do NOT have a chance of winning under present claim but advised ME to file the CUE as I

stated (at the VARO and based on the ORIGINAL DENIAL from RO back in 1990). They said

as attorneys, they are NOT ALLOWED to file my "original CUE claim"; that must be done by me.

I MUST FILE an ORIGINAL CUE by myself they say. There will be no help from them at this time.

I have had absolutely NO luck with SO's (from any organization). Every one I have contacted

tells me that I DO NOT have a case/claim and they will NOT take it on (one told me "I have to

believe you have a claim and I also have to answer to my boss in D.C. for accepting a claimant's

case").

After doing so, IF I receive a denial of the CUE, then the attorney's could and would take it from there.

He felt strongly that I have a winning CUE if filed against the original denial and at the RO level. He

says to cite as CUE:

"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?

Is this the basis of my CUE as related to the ORIGINAL DENIAL FROM VARO?

"Your lawyer is right as to filing at the RO level,if the RO committed the CUE,,unless a prior RO decision was subsumed by a BVA decision"

According to his review of all decisions, RO committed the CUE. Of course I Appealed the original denial, it went to BVA and was

REMANDED to RO and was again DENIED. (I don't understand "unless a prior RO decision was subsumed by a BVA decision") .

"IS THE ATTORNEY MISTAKEN in his INTERPRETATION OF THIS 8 year rule (I believe it applies ONLY to the ENHANCED PAY SCHEDULE and NOT THE LENGTH OF TIME THAT THE VETERAN

WAS RATED AT 100% prior to his date of death)? I read the reg to say "10 consecutive years prior to the date of death".

Theattorney is not mistaken. The potential 8 year enhancement (higher level then the regular DIC amount) only applies to DIC that has been established already under the Ten Year rule."

Berta, my AWARD DECISION states that my case was awarded based on "the BENEFIT OF THE DOUBT RULE" and since I KNOW that he was rated by VA at 100% for a period of 8 years plus 2 months.....

how does this apply to the "enhanced DIC rule of 8 years"? ...what I mean is that I AM receiving the SC DIC; I AM receiving the "ENHANCED AMOUNT" as well.

Does this mean my award was "established already under the Ten Year rule"?? (I do not understand this).

It is obvious that right now, at this juncture, I am "on my own" and I truly need to understand WHAT I am basing my CUE upon.

Judy

[broncovet]

Judy

A humble suggestion. Review your C file, especially any filings that you did within one year of the decision. If ANY of these documents you submitted suggest "new evidence", then you may not need to file a CUE, as you could win an EED under the pending claim doctrine.

Also reread this, especially the links provided in the posts below: