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NSA-Saigon-ET

Nehmer Class Retro Pay For Ao/ihd Effective Date

28 posts in this topic

Hi all,

Was rereading the Nehmer Class action concerning my AO/IHD original claim.

I am a little confused how the law reads for retro payment dates.

Here is the short background summary.

Service including in-country Vietnam from 1967-1974

First felt Angina pain in 1994 and became a patient of a heart specialist in Cambridge, Ma.

After exhaustive testing was placed on medication and have been every since. (IHD diagnosis of some type, CAD,etc..)

Veteran lost private medical coverage and requested care under VA since 1997, first as a 0% SC and later on at 20% SC.

Archived VAMC records should have the IHD condition listed. I have not requested the older archived records, but did retrieve the newer records for another issue some time ago. They also list the IHD condition. These go back to 2001-2002.

Ok, so the VA has records that confirm this disability all the way back to 1997 and I can get the records from private doctor pretty easily

that take it back to 1994.

The veteran first filed for IHD disability in 2008, which was denied.

So the veteran comes under Nehmer.

The veteran then filed again in spring of 2010 for AO/IHD.

How far back will the Nehmer class take the compensation by law?

Please state the actual sentence for this.

Thanks!

donald

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“As a result of the court order NVLSP obtained in its Agent Orange class action, Nehmer v. U.S. Department of Veterans Affairs, the VA is required to pay you, if your claim is successful, benefits retroactive to the date the VA first received your claim. “

http://www.nvlsp.org/Information/ArticleLibrary/AgentOrange/AO-VABeginsReview.htm

"The veteran first filed for IHD disability in 2008, which was denied.

So the veteran comes under Nehmer."

The date of the 2008 claim is the retro date.

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Hi Berta,

Thanks for your input.

I have copied this small section from the training guide and pasted it here:

Effective Date

The effective date of claims for service connection is the later of the date VA received the claim on which the prior denial was based or the date the disability arose.

For purposes of Nehmer IHD, PD, or HCL claims, the date a disability arose is the date VA had sufficient evidence or information to identify the existence of such a disease or, the evidence or information available was sufficient to "code" IHD, PD, or HCL as a disability pursuant to guidance regarding coding contained in the Veterans Benefits Adjudication Manual M21-1MR, and/or prior versions of such manual.

NOTE: 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114 do not apply to Nehmer claims.

This says that the original date I filed the claim is the date they could use for the retro award

or

it also says that they can use a date when the condition first became a disabling condition

whichever is later

My VA records show treatment for Arteriosclerosis before my original claim.

Does that change the effective retro date?

-donald

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I agree with Berta somewhat BUT if the VA has it in your records that they knew you had CAD/IHD they could, might maybe will consider another earlier date! keep your fingers and toes crossed and let us know.

This would be handled under Nehmer and would be called an inferred claim BUT again there is a lot of grey areas there!!

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I agree with Berta somewhat BUT if the VA has it in your records that they knew you had CAD/IHD they could, might maybe will consider another earlier date! keep your fingers and toes crossed and let us know.

This would be handled under Nehmer and would be called an inferred claim BUT again there is a lot of grey areas there!![

Simply mentioning or being diagnosed with a condition isn't enough; there must be a positive assertion that it is due to service before it is an inferred claim.

I noticed NSA-Saigon-ET is 20% SC. Now if when he filed a formal claim for SC for the condition that he got 20% for and while undergoing a C&P exam happens to mention to the doc that he thinks that his heart condition is also due to service, if the doc notes this assertion by NSA-Saigon-ET in his report, the decision maker at the RO is required to put the heart condition at issue just like he does the claimed condition. 

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Simply mentioning or being diagnosed with a condition isn't enough; there must be a positive assertion that it is due to service before it is an inferred claim.

I noticed NSA-Saigon-ET is 20% SC. Now if when he filed a formal claim for SC for the condition that he got 20% for and while undergoing a C&P exam happens to mention to the doc that he thinks that his heart condition is also due to service, if the doc notes this assertion by NSA-Saigon-ET in his report, the decision maker at the RO is required to put the heart condition at issue just like he does the claimed condition.

AHHHH! I see what you mean; that would be similar for a case of "duty to assist". The regulation says that the VA must help develop an issue it sees for a benefit to the vet even if the vet has not yet claimed the issue at that time. So, supposedly if the examiner finds a new issue while processing the existing issue, it is supposed to contact the claimant and help them on the new isue as well.

Not the same thing I am asking.

So getting back to the original question I posted :

The training guide says the retro effective date will be from the date of the original claim filed

OR

the date the disability arose.

It is that second part I do not understand.

It defines this as

"For purposes of Nehmer IHD, PD, or HCL claims, the date a disability arose is the date VA had sufficient evidence or information to identify the existence of such a disease "

In my case, the VAMC records show treatment for IHD from before I filed the original claim. These records go back to when I first transferred my health care from private practice to the VA system in 1997. This means to me that the records show the existence of the disease earlier than when I filed the claim.

So my question is this: Can my claim effective date be pushed back to 1997? The evidence I mentioned seems to comply with the training guide statements which says it should be.

-donald

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I agree, please let us know how this works!

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"In my case, the VAMC records show treatment for IHD from before I filed the original claim"

But had it been "coded" in any past decision and denied?

I had some vets issues that I asked a Nehmer lawyer about and his reply might clarify this for you:

"As for your second question, if the VA should have coded IHD in a rating decision, the claim that resulted in the rating decision could be considered a claim for benefits for IHD under footnote 1 of the Final Stipulation and Order in Nehmer. It basically depends on the timing of the claim, rating decision, and evidence received while the claim was pending. It may also depend on the rules in the Manual M21-1 regarding coding that were in effect at the time of the claim. Typically, though, the following example would be accurate: A veteran filed a claim for SC for a low back disability on May 1, 1990. The VA obtained medical evidence showing a diagnosis of IHD in the development of that claim. The VA issued a rating decision on April 1, 1991, but does not code IHD (list IHD as “NSC” on the code sheet of the rating decision). Under footnote 1, since the condition should have been coded in the April 1, 1991 decision, the May 1, 1990 claim should be considered a claim for SC for IHD under Nehmer. "

and

"I recently made the argument / explained the application of Footnote 1 in a case at the CAVC (docket # 08-1840)"

I see your point but as this lawyer says these situatons depend on many factors.

N4XV said:

"Simply mentioning or being diagnosed with a condition isn't enough; there must be a positive assertion that it is due to service before it is an inferred claim."

As I understand Nehmer, the disabilty must have been coded as NSC in a past rating decision (or SHOULD have been)

My claim is based on IHD which SHOULD ave been coded in a 1998 rating decision.

I sent them Footnote one on that and maybe that footnote will help you.

These situations get into the intricate nature of Nehmer but it all depends on what the decision says.Without the EED they give you it is hard to envision how to appeal if the EED seems wrong.

I will try to find the Footnote 1 and explain that better here.

Edited by Berta

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http://www.nvlsp.org/Information/ArticleLibrary/AgentOrange/20100928%20NehmerTrainingGuide.pdf

On pages 15 and 16 pf the NVLSP training guide for the new AO presumptives, the substance of FootNote 1 is explained.

It depends on many factors as Rick explained in his email to me.

This might help someone:

I have asked for a staged IHD rating from Aug 1988 to Oct 1994 based on VA medical records of a condition that VA never formally diagnosed or treated in my husband's lifetime.(IHD) They did admit their malpractice caused his death but still failed to rate his IHD.

As the Training guide and Nehmer explains- if there is medical and legal potential that a condition SHOULD have been rated in a past decision, then date of that decision could become the EED for Nehmer retro.

Could- depending on the factors on pages 15,16 of the Training letter.

I sent the VA pages 15 and 16 for my claim.

Have you contacted NVLSP at their Agent Orange email addy?

The emails they get will help them determine when these decisions come out, whether you got the proper retro or not.

BTW----- they also want to hear of any awards or denials from vets that have already gotten into their data base.

Edited by Berta

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AHHHH! I see what you mean; that would be similar for a case of "duty to assist".  The regulation says that the VA must help develop an issue it sees for a benefit to the vet even if the vet has not yet claimed the issue at that time.  So, supposedly if the examiner finds a new issue while processing the existing issue, it is supposed to contact the claimant and help them on the new isue as well.  

Not the same thing I am asking.

So getting back to the original question I posted :

The training guide says the retro effective date will be from the date of the original claim filed

                                                                            OR

                                                        the date the disability arose.

It is that second part I do not understand.

It defines this as

"For purposes of Nehmer IHD, PD, or HCL claims, the date a disability arose is the date VA had sufficient evidence or information to identify the existence of such a disease "

In my case, the VAMC records show treatment for IHD from before I filed the original claim.  These records go back to when I first transferred my health care from private practice to the VA system in 1997.  This means to me that the records show the existence of the disease earlier than when I filed the claim.

So my question is this:  Can my claim effective date be pushed back to 1997?  The evidence I mentioned seems to comply with the training guide statements which says it should be.

-donald

NSA-Saigon-ET, I don't see this happening because the VAMCs and VAROs do not communicate like that. Although you were in the VA health system in 1997 your VAMC or Out Patient Clinic does not covey this information to the VARO until it is requested by the VARO and that does not happen until a claim is initiated.   "The date a disability arose is the date VA had sufficient evidence or information to identify the existence of such a disease " I believe VA means the VARO not VAMC.  If you did not bring up the issue of your CAD/IHD in a previous claim somehow as being SC also. The VARO would not consider it. It also says or the date of claim, whichever is later. 

You mentioned in your original post :

Archived VAMC records should have the IHD condition listed. I have not requested the older archived records, but did retrieve the newer records for another issue some time ago. They also list the IHD condition. These go back to 2001-2002.

The other issue some time ago I assume was another claim. Was the issue of CAD/IHD brought up in the decision letter? 

The VA's duty to assist  basically has to do with them assisting in getting your medical records/service records in support of your claim.

The Department of Veterans Affairs (VA) is obligated bylaw to:

·  notify a claimant of what information orevidence is necessary to substantiate his/her claim

·  assist a claimant who files a substantiallycomplete claim in obtaining evidence to substantiate his/her claim beforemaking a decision on that claim, and

grant every benefit supported by the law whichis consistent with the facts of the case, while protecting the interests of thegovernment per 38 CFR 3.103(a).

As I said in a previous post: Simply mentioning or being diagnosed with a condition isn't enough; there must be a positive assertion that it is due to service before it is an inferred claim.

Unless you made that positive assertion and it is in your records, I concur with Berta that your retro date will be from the 2008 claim.

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Lets try again,

Here is the training section in bold. I broke it up into four statements.

Effective Date

1.) "The effective date of claims for service connection is the later of the date VA received the claim on which the prior denial was based"

2.) "or the date the disability arose.*

*Definition of "date disability arose".

The first definition or option is this part

3.) "For purposes of Nehmer IHD, PD, or HCL claims, the date a disability arose is the date VA had sufficient evidence or information to identify the existence of such a disease"

(This is the second definition or option for date disability arose")

4.) "or, the evidence or information available was sufficient to "code" IHD, PD, or HCL as a disability pursuant to guidance regarding coding contained in the Veterans Benefits Adjudication Manual M21-1MR, and/or prior versions of such manual. "

Ok now we have 2 options with the second option having two options for definition to be used

#1 Option Can stand by itself if it is to be used. In my case that date is 2008.

# 2 Option is the one I am concerned about as it may offer a later date. Lets look at the definitions to see if one is a fit for me.

# 3 definition seems to be the one I can use as my VAMC records show continous coverage for what is now called IHD. These records are from VAMC, NH and BayPines, Fl and Houston ,TX. and go back to around 1997. These records are in the possession of the VA.

#4 Definition does not seem to be of any help

Now,

I first filed a claim in 2008, but when the VA examiners do a readjudication of this case, they will find the existence of this covered disease which will be previous to the original date first filed.

So by using statement #2 and #3 for my claim

It is my opinion then under this guide that they will have to push the effective date back to an earlier time.

Does that make sense as I have explained it?

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"Lets try again"?????

I am not interested in 'trying' again.

You can raise these points you made as your argument in your appeal if the EED is not what you want.

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The effective date of claims for service connection is the later of the date VA received the claim on which the prior denial was based

or the date the disability arose

The later is the prior denial not the date the disability arose.

There are a lot of people upset that their claims will not retro back to when their disability arose and they didn't file a claim for it at that time.

 You are beating a dead horse right now.

Like Berta said if you do not agree with the EED then appeal it.

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I thank you all for your input.

I will let you know once I receive my claim back from the VA as to what they award.

At this point it is still a waiting game.

-donald

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It is the date you became a claimant not the date you became a patient. It is the date you filed a claim not the DX date. We all wish it was otherwise, but it is what it is. If you filed a claim for anything in the past and in that claim there is evidence of IHD, they could inferr the date of filing that claim as the EED of the IHD claim.

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I have in the past had the RO grant a claim based on the information from a QTC exam that I did not apply for. This is why I feel there is the possibility for the EED to be used.

When I first applied in 2003 it was for DM2 the exam showed that I not only had DM2 but also PN and ED. Now even though I was not applying for those conditions, because I was DXed with them at the C&P I was awarded them! Made for a nice surprise. Instead of being just 10% for DM2 I was given 40% for DM2/PN lower/and SMC-K.

Ironically I did not get IHD because their test found none!

My point is I feel it is just like playing poker with th friends. The cards speak for themselves. In this case the vets medical records speak for themselves.

So I feel that if you have a DX for IHD in your medical files there is a possibility that the date of that exam could be considered for the vets date. Now in the case of a private doctor's exam this will not work unless the VA had the information while doing another part of the claim.

of course I could be totally wrong but I feel this a scenario that could happen!

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stillhere, I see where you are coming from. In your case it was dx'd or noted in your C&P report and gave the VA  sufficient evidence or information to infer additional disabilities.

The OP stated: "Veteran lost private medical coverage and requested care under VA since 1997, first as a 0% SC and later on at 20% SC" and "The veteran first filed for IHD disability in 2008, which was denied.

So the veteran comes under Nehmer."

To me this means at some point prior to his original claim for CAD/IHD in 2008 he had another claim that granted him a 20% SC rating. Now if at some point during the processing of his prior claim granting the 20% rating the issue of CAD/IHD was brought up he might be entitled to an earlier effective date back to his first claim. The OP states nothing to this effect. 

The effective date of claims for service connection is the later of the date VA received the claim on which the prior denial was based

or the date the disability arose

"For purposes of Nehmer IHD, PD, or HCL claims, the date a disability arose is the date VA had sufficient evidence or information to identify the existence of such a disease"

In the OP's case it is reasonable to assume at this point in time that the earliest the VA had sufficient evidence or information to identify the existence of his CAD/IHD was his 2008 claim. If it wasn't put at issue in his 20% claim a rating specialist is not required to put it at issue if at that time no nexus exists. The nexus being an assertion that the CAD.IHD is thought to be SC'd by either the vet or an examiner and it being recorded in the vet's records.

Bare in mind that even though the vet was getting VA medical treatment since 1997 for his CAD/IHD and his VA medical records show this, without that assertion prior to his 2008 claim all that earlier VA medical treatment information it moot as far as getting retro prior to the 2008 claim. 

There are the facts, anything else is smoke and mirrors. 

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stillhere, I see where you are coming from. In your case it was dx'd or noted in your C&P report and gave the VA sufficient evidence or information to infer additional disabilities.

The OP stated: "Veteran lost private medical coverage and requested care under VA since 1997, first as a 0% SC and later on at 20% SC" and "The veteran first filed for IHD disability in 2008, which was denied.

So the veteran comes under Nehmer."

To me this means at some point prior to his original claim for CAD/IHD in 2008 he had another claim that granted him a 20% SC rating. Now if at some point during the processing of his prior claim granting the 20% rating the issue of CAD/IHD was brought up he might be entitled to an earlier effective date back to his first claim. The OP states nothing to this effect.

The effective date of claims for service connection is the later of the date VA received the claim on which the prior denial was based

or the date the disability arose

"For purposes of Nehmer IHD, PD, or HCL claims, the date a disability arose is the date VA had sufficient evidence or information to identify the existence of such a disease"

In the OP's case it is reasonable to assume at this point in time that the earliest the VA had sufficient evidence or information to identify the existence of his CAD/IHD was his 2008 claim. If it wasn't put at issue in his 20% claim a rating specialist is not required to put it at issue if at that time no nexus exists. The nexus being an assertion that the CAD.IHD is thought to be SC'd by either the vet or an examiner and it being recorded in the vet's records.

Bare in mind that even though the vet was getting VA medical treatment since 1997 for his CAD/IHD and his VA medical records show this, without that assertion prior to his 2008 claim all that earlier VA medical treatment information it moot as far as getting retro prior to the 2008 claim.

There are the facts, anything else is smoke and mirrors.

Hi All,

Actually Berta posted the answer I am seeking. It is found in the training guide contents labeled:

Appendix 18 – Footnote 1: Need for Amendment to 38 C.F.R. § 3.816 Regarding Nehmer Claims ...............................................................................................................147

This footnote actually deals with my issue.

I can only wait to see what the VA does in readjudication of my 2008 original claim.

There is one pro vet interpretation that describes my situation, and could result in a earlier effective date than 2008.

-donald

Edited by NSA-Saigon-ET

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Donald- yes- if that Footnote helps your EED by all means use it as evidence.

I sent them page 15 of the NVLSP pdf with link to whole thing (which they were trained in) so they know I got it from the main source for Nehmer- NVLSP.

Page 15 states: "A prior denial based on lack of diagnosis rather than lack of nexus falls within the scope of the stipulation's requirement for readjudication."

Would that help you?

Say you had private IHD diagnosis and yet had claim on another basis-let's say for PTSD.

Say VA awarded the PTSD but failed to list or rate the IHD as NSC at that time, knowing by the clinical record that you had IHD.

One could assume that the lack of diagnosis in essense caused the IHD to be deemed 'denied' even though it wasnt formally claimed and even though this was part of an award letter.

I am not saying this will work, it is just something to consider because as much as VA manipulates the regs- we can attempt to do that too.

Or would this help you or someone here:

I raised this issue one first page of my 4138:

Paragraph 46.02 M21-1MR 1985 under (a) states:

"Compensation Ratings. All disabilities claimed will be given consideration as to service connection and be coded as a disability rating on VA form 21-6796."

This would regard all disabilities ever claimed.Is it possible you had claimed IHD in the past in an older claim? or even just claimed heart problems or something similiar to that?

The last rating decision I received in 1998 (never received one for my Feb 2010 award)

that awarded DIC for 1151 ischemic heart disease and cerebral ischemia didnt contain any IHD rating at all.

So it pays to check out any old correspondence you might have had with VA.

Edited by Berta

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Hi Berta,

Thanks for the response and yes I believe this will help many vets.

I do believe that the footnote 1 can be a boon to my case and others if the examiners don't take the liberal approach, which is the whole intent of Nehmer to correct some of the denials for these three conditions.

This will have to be accomplished thru appeal of some kind. I can see the spirit of intent for the remedy, but of course, that is for my best interest. However, if my reasoning is straight forward, then perhaps others can see it too!

My C-file does contain medical evidence of IHD. That evidence does go back aways, but can only help me under the Nehmer rules as far back as 2003.

My past attempts to be awarded any disabilities start from 1994 and then 2003, then 2007 and 2008.

The latest one in 1994 cannot help me as it predates my IHD condition.

So given the key element for this is

first, to come under Nehmer

and

second, to have other older claims filed, with decisions, that are older than the original Nehmer claim

and

third, have medical evidence of treatment for IHD.

My first AO/IHD claim was in 2008 and in the 2003 claim date is when I tried to reopen my PTSD claim.

By that time I had been diagnosed by a private Dr. for IHD (in 1994) and had continous treatment since then, first thru BC/BS, then thru VAMC in Nh and then VAMC Fla. The VA had requested my medical records from NH and Fla and they show treatment for IHD. They ignored my IHD as it was not claimed by me or a Agent Orange ratable issue back then.

So now under Nehmer, I am going to get a review of my old IHD claim from 2008, they will see that the condition was DX way back to the 2003 claim.

The Nehmer rules say that my effective date is from the first claim date of 2008 or

when the VA first learned of my disease or when they came across it and should have coded it for development from directions of the m21 manual. So here is where the various opinions can cause varying effective dates. The class counsel recognizes this and they inserted footnote 1 into the training manual.

So footnote 1 deals with the spirit of the remedy for benefits denied. It is saying that a broad view or pro vet view of the regulation for an later effective date, may be from the first date that the VA could know of the dx for a now covered disease. It doesn't matter if it was coded for rating or not at that time, but it now is qualified under Nehmer to be rated back to that date of discovery.

That is the scenario which could happen and if not, then it would be the basis for my argument for appeal.

Another interesting thing about this is that the footnote 1 is a request for an amendment to the existing regulation dealing with definition of effective date. The VA and NVLSP is aware that the regulation is not specific enough for correct interpretation by the average examiner. This is also very evident by our little thread here at Hadit. Many inputs with varying opinions and all having some merit.

I wonder if any new work is being done to formally clarify this issue?

-donald

Edited by NSA-Saigon-ET

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"in the 2003 claim date is when I tried to reopen my PTSD claim."

Is the IHD listed in the rating decision as NSC?

If it could have been rated as CAD or perhaps another way (but meaning same thing)but it they listed it, coded it and gave a NSC % -this could be a potential EED for you.

My claim reveals my husband had IHD back to 1988 then to his death- in the clinical VA record but since it was misdiagnosed it was never coded or listed in any rating sheet.

Maybe my decision will offer something to help you on the EED-

then again maybe not as maybe they wont go back that far.

I feel you and every AO vet has a right to obtain the most favorable EED you can get.

And I feel this is where any VA errors will occur in deciding these claims.

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Hi Folks,

I have some updates to my AO/IHD claim which may be of interest to some. I am filing out of the Houston, Tx VARO.

I called the 800 number today and was informed that my AO/IHD claim was sent to WACO VARO on the 28th Jan. to be decided there.

This they said has put it into the decision phase.

While I have been patiently waiting, I contacted the lawyers at the NVLSP and submitted some info to them. This has been discussed previously on this thread for a possible EED which predates my nehmer claim.

The attorneys there are calling this situation a "footnote1 claim".

I have seen at least one claim being resolved in the veterans favor using the footnote1 as a basis. This was seen on a different forum called the VBN (veterans benefit network).

The NVLSP told me to wait for the decision and then submit it to them. They will make sure that the VA did a fair job.

With all the problems I hear at WACO you can be sure I will submit the decision to NVLSP.

p.s.

I first filed at Houston in 2008 and was denied in 2009. Refiled in April 2010. This is for AO/IHD.

Veterans Benefits Network

Veterans Benefits Network

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This is very interesting info-

when I first read the Nehmer Trainng Guide I saw Footnote 1 as being probative to my claim.I referenced the footnote in the claim and sent them a copy of the excerpt.

I discussed ,a few months ago, this Footnote with Nehmer lawyer- it can be probative to a proper adjudication.

Footnote One (1) is in the Nehmer Trainng Guide here for anyone else who it might apply to.

Your claim sounds good and like it is getting close to resolve.

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I thank you all for your input.

I will let you know once I receive my claim back from the VA as to what they award.

At this point it is still a waiting game.

-donald

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I think they will use the date of your 2005 CAD claim as EED.

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Hi Everyone,

Just a note here to close out my thread in this topic.

I received my rating for AO/IHD at the end of this March 2011 from the Waco Nehmer team.

My IHD is controlled using medication at this point so I am lucky, but still have a 10% rating w/ EED of 2003.

That gave me a nice little 11k payday and paid for my relocation to Las Vegas, NV.

It was just as I had analyzed as being a Foot Note 1 claim.

I did have a totally unrelated claim filed in 2003 for PTSD. This was at the St. Pete RO in Fl.

The Nehmer team found my VA records w/ dx of CAD and my treatment at the VAMC.

That was the earliest they could go back under Nehmer.

I did not file for AO/IHD until my 2008 claim in Houston RO. It was denied.

I then filed again in 2010 for AO/IHD just to be sure it did not get lost in the shuffle.

It is nice to have the VA actually do a good job on one of my claims.

Thanks to anyone who discussed this claim with me.

Oh, and to the vet who thought I was beating a dead horse, well it came back to life!! LOL!

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Congrats and it is always nice to hear when the VA does the right thing by a Veteran.

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YES- I remember this was a Footnote one claim.

This sounds right but if you did contact NVLSP when you filed the IHD claim- via email at their AO addy-they will be happy to review this decision for you to make sure it is correct.

This is wonderful news!

(VA can be sanctioned for major errors on these new AO claims. I wish those sanctions were in place for ALL claims)

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