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]

Thank you Broncovet.

We have thousands of guests who read this board every week and it helps when we state exact regs or stuff from the VBM.

One of the NVLSP lawyers (maybe Bart or Rick) who write the VBM told me I could posts brief excerpts from the VBM here once in a while but more than that is protected by their copywrite law.

It isn't copywrite protected to make us buy the VBM either, as NVLSP is a pro bono law firm. I couldn't believe how thrilled they were to get my last donation because it helped them buy some computer stuff they needed right away for one of their vet related programs.

Judy said:

"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."

The Cue people here would agree with that. We have had to basically prepare our CUE claims ourselves.

Cue is a collateral attack on a decision made by a federal employee.That is why some reps don't like to deal CUE claims and why lawyers dont prepare them except maybe in certain circumstances,where they already hold a POA for the claimant due to another claim.

I bumped some info up in our CUE forum that might help you or others here.

I will refrain from the enhanced DIC question you had as I don't understand how you did obtain enhanced DIC .This is a good question for your lawyer.

Edited September 26, 2012 by Berta

[Judy]

Unfortuantely (for me) at this point, I do NOT have a lawyer.

They made it quite clear that they do NOT represent me at this time. No merit in my present claim on appeal for EED

and they told me to file CUE on my own; if denied, then contact them again at that time.

Can anyone point me to a NVLSP lawyer (or list of them) who might be of greater assistance to me?

I definitely have unanswered questions, I know that I don't understand it all well enough to proceed

without professional help.

After reading all the information (from links too) that Broncovet posted, I DO KNOW THIS: In my ORIGINAL

DENIAL of 1990 from VARO and as it proceeded to BVA, it was REMANDED to RO by BVA and in that

REMAND it stated that "in service med recs were not available in the C File and the BVA REMAND instructed

the VARO to "do everything possible to obtain prior med recs, specifically those "in-service" med recs"....

does this constitute (perhaps) that the ORIGINAL DENIAL FROM RO did NOT "consider all the evidence"

namely, those "in-service" med recs? LATER, when the RO again DENIED it....it never states whether they

DID or DID NOT review those "in-service" medical records... so how do we KNOW if they did or didn't

OBTAIN THEM, REVIEW THEM and/or CONSIDER THEM... in the FINAL DENIAL of 1994/1995.

I need a lawyer.

Judy

[Berta]

Broncovet posted this link.

I just goggled 'veterans lawyers' and a whole bunch of them popped up.

NVLSP does not represent individuals claimants unless they have had Nehmer claims (Nehmer is a class action lawsuit)or fall under some of their other programs such as Lawyers Serving Warriors.

This info at their site might help someone here.

http://www.nvlsp.org/

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Click here for additional information on CRSC and whether you qualify for our services.

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[Judy]

Thanks, I understand NVLSP now. That is not my case; not Nehmer.

I googled veteran's lawyers some time back and contacted 4 oor 5 of them; most said I did not have a case, including B & M.

I persisted and found the one I mentioned who is now NOT representing me until I file CUE and get denied (on my own).

BTW, this "PRO BONO" list... does that imply that IF they take your case and IF it is won... they will not charge?

Hardly seems plausible to me but just askin'...

Again, I don't even know what to CUE at this point nor where to file; I presume VARO though.

Judy

[Berta]

I have been giving the wrong advise here today. Sorry about that.

"persisted and found the one I mentioned who is now NOT representing me until I file CUE and get denied (on my own)."

The lawyers for vets Regs say the NOD must be filed before a lawyer can hold the POA.

Or at least when the denial letter has arrived and a NOD will be prepared.

It is safe to assume that a CUE claim will be denied right off the bat.

"they told me to file CUE on my own; if denied, then contact them again at that time."That is right. They cannot represent you yet.

At that time you could prepare a template email.

I never had a lawyer for my claims but this is what I would do.

I would ask in email if they could assist me ,briefly describe the basis of the claim, and then attach the VA denial to the email.

I would send this same template and attachment to as many lawyers as I wanted to that handle vets and widows claims (without CCing them in the email) and then I would wait for their reply.

Although NVLSP doesn't handle individual claims like this, their annual VBM , available at their site and Lexis Nexis,

has helped me as well as countless other claimants and their CUE info is great.

CUE is explained in one part of this manual and Common VARO Errors in another Chapter shows more info in preparing a successful CUE claim.

I forget how much the VBM costs. Amazon might have some used copies and the CUE info has not changed in years.

This is a legal text. It takes some time to understand the format. They put Supplemental info into each new VBM.

In that respect year after year not all info changes in the manual but they highlight what is new info.

I worked for a law firm and believe me, this is the best way to handle supplements even though much material is the same as it was the year before.

Unlike law firm supplements, they simply rewrite parts of the VBM every year to get the supplemented material into the exact area it needs to be in and they update VBM with citations from the CAVC for cases heard and decided after publication of their last VBM.

I think I got the idea for my 2004 CUE from the VBM.

[broncovet]

I dont want to beat a dead horse, but feel its important to explain the "pending claim doctrine" and why it is important. The pending claim doctrine is more advantageous to the Veteran than trying to meet the Cue standard of review, but BOTH can be used to overcome finality.

You see, CUE is NOT the only method to defeat finality...its the only WELL KNOWN method to defeat finality. Another way to defeat finality is 38 CFR 3.156 C. Since CUE is the most difficult standard of review to prove, I always recommend trying the OTHER methods of defeating finality and only as a last resort use CUE.

An example:

a. The Veteran applies for benefits Jan. 1. 2000. He submits evidence on March 1, 2000 and again on March 1, 2002. Is the claim "final"? No. A decision has not yet been made and the claim is still pending so the Veteran can continue to send more evidence and it will be accepted as if sent in with the claim on Jan. 1. 2000.

b. The Veteran applies for benefits Jan. 1, 2000. He gets a RO decision Jan 10, 2002. The appeal clock starts running with the RO decision.

The Veteran finds more evidence and submits it, on July, 2002. Does the decision become final Jan. 10, 2003? No, because the Veteran sent in more evidence, thus reopening the claim, as VBM points out.