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Ao Retro Rules

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Berta

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http://www.nvlsp.org/Information/ArticleLi...%20Date%20Rules

Lots of legalize here - however- if there was no prior claim denied -a claim that could be construed as involving the same disability as one of the 3 new presumptives-then the date of filing the claim will surely be the date they use for the retro for cl;aims filed under the new regs.

Although the VA is supposed to search for any previously denied claim under these proposed regs-I think it is best that any vet who might have been denied for an AO condition in the past should dig out all of their older decisions.

FTCAers and 1151ers under new AO regs have again been overlooked.(Of COur$e)

Since the VA didn't diagnose my husband's IHD (until I filed FTCA case and sent them definite evidence of MY diagnosis based on their medical records )- they did award recently death directly due to AO but still refuse to consider SMC and rate his AO disabilities-which they malpracticed on.

What got me when I read the financial projections the VA out into the regs-they forgot to estimate how many veterans with AO disabilities they might well have misdiagnosed-and if they never diagnosed the AO condition-they saved money on treatment for it and also saved money under the Nehmer court order.

I am appealing that part of my award as to lack of any SMC consideration-and also filing a Petition for Equitable Relief with the Secretary.

I have to- the VA has never had a similiar case,so there is no precedent and nothing in Nehmer to account for FTCA or 1151 AO claims.

I will be talking to lawyer at NVLSP next week and of there is any other new info re: these new regs I will pass it on-but it would certainly appear at the NVLSP web site.

The entire gamit of Nehmer I and Nehmer II is at their above web site.

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I’ll make this as simple as I can pertaining to my present status:

Served in the Army 1968 to 1976. Tours in Korea 1968 to 1970, Exposed to AO, then 1970 went to Vietnam again exposed..

1991 had emergency 5 bypass heart surgery at the age of 41. From 91 to 95 had at least 3 heart attacks and several heart caths during this period with blockages due to blood clots. No stenting during this period

November 1995 per private cardiologist filed for Social Security Disability. June 1996 awarded 100 percent SSD due to heart disease and depression and I have not been employable since 1995. Private medical records documents hypertension, hypertensive heart disease and Ischemic Heart Disease/CAD.

From 1996 to 2001 in and out of hospital with angina and additional heart caths..

2001 Filed my first claim for hypertensive heart disease and coronary artery disease due to exposure of AO. 2002 was denied because HHD and CAD was not on presumptive list of AO diseases, for these reasons I DID NOT file an appeal.

( Stupidity on my part ). I also failed to add hypertension on my original claim in 2001. I blame my VSO back then but that’s water under the bridge now.

2008 Re-opened my claim for Hypertension, hypertensive heart disease and Ischemic Heart Disease/CAD due to AO.

2009 awarded SC for hypertension at 10 percent with effective date of 2008, VARO deferred on heart diseases until

C and P exam in June 2009 ( this exam was a total joke ) performed by a Nurse Practitioner, didn’t even take my blood pressure, just asked a few questions from a form on the computer and I had to give the best answer from a list of answers. I had brought all of my Private Medical Records for the C and P exam but the NP refused to accept these records. I told her I had been diagnosed with Congestive Heart Failure as well and she asked when and I referred to one of my medical reports to give her the date. She told me she had to hurry up and finish so I wouldn’t be late for my stress test. Went for the stress test which was performed my yet another Nurse Practitioner but however I was not given a treadmill stress test as I told the NP that I could not do treadmills and that my private cardiologist only does chemical induced stress tests. All she did then was take my blood pressure different times in different positions and each time my BP was high. ( That was the extent of my C and P Exam )

I filed an NOD and made reference to the C and P Exam along with other important information

Jan 2010 awarded SC for hypertensive heart disease secondary to SC hypertension and for coronary artery disease secondary to SC hypertension. Only rated at 10 percent for heart disease with effective date to 2008 same as for hypertension.

Just a few days before my award on heart diseases I had filed a VA 21-4138 for IHD/CAD, congestive heart failure and for an Abdominal Aortic Aneurysm due to exposure to AO under the new ruling once it becomes official.

Just recently I filed another NOD for increase rating and earlier effective date under the Nehmer Law back to 2001.

From 2006 to 2008 I had several more heart caths whereas I almost died in June 2006 due to cardiac shock and had two stents inserted in the Left Anterior Descending Artery graft and ended up on a ventilator for a few days. Then during this period I’ve had to have 5 more stents inserted in the LADA graft. I also have severe small vessel disease. I only have 2 grafts left from the 5 I had performed in 1991 of which one of those that I lost was the Right Coronary Artery. All of this is documented in my private medical records which are in my C File. It’s also documented 3 different times in my medical records by my Cardiologist in 2008 that my early onset of hypertension and my heart diseases was caused by my exposure to AO.

My question is, Once the new ruling is Official will I be awarded SC for IHD/CAD due to AO instead of SC for secondary heart diseases. I realize one cannot be awarded two different SC for heart diseases such as the SC hypertensive heart disease as I am now. Also will I come under the Nehmer Law for the earlier effective date back to 2001? I feel I should be re-evaluated under the new ruling and my present award should be amended for Primary IHD due to AO.

Also correct me if I’m wrong, but I have read other articles on other forums and in VA documents that a veteran can be awarded SC back to when the veteran was first diagnosed as being disabled, such as my case of being 100 percent total disabled by social security disability in 1995.

And as to a rating I found this to be interesting as well: “If there is a question as to which rating the VA should assign to the disability, the veteran is entitled to the higher rating. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994). Don’t know if this applies to me or not.

I do have severe heart disease and have to depend on numerous types of medication everyday to include having to wear a Nitro Patch during the day, the in the evenings I take 60mg of Imdur (Nitrates) along with having to use Nitro Spray several times a day for angina. I also take Lasix as needed for edema in my legs.

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"I feel I should be re-evaluated under the new ruling and my present award should be amended for Primary IHD due to AO."

I feel you are Correct.

I also feel they should award you retro back to 2001 under Nehmer stipulation.

In some cases when SSA awards solely for what is or becomes SC then an additional year retro is possible.

I only have my husband's case for an example on that.

30% PTSD 1984- then asked for increase n 1992 then he died in 1994.

SSA had awarded him in 1993 solely for PTSD back to 1991.

In a posthumous award on 1997 the VA awarded him 100% PTSD P & T back to the onset date of his SSA award (1991)as this was when they established the entitlement arose.

You never claimed depression as due to your service?

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"I feel I should be re-evaluated under the new ruling and my present award should be amended for Primary IHD due to AO."

I feel you are Correct.

I also feel they should award you retro back to 2001 under Nehmer stipulation.

In some cases when SSA awards solely for what is or becomes SC then an additional year retro is possible.

I only have my husband's case for an example on that.

30% PTSD 1984- then asked for increase n 1992 then he died in 1994.

SSA had awarded him in 1993 solely for PTSD back to 1991.

In a posthumous award on 1997 the VA awarded him 100% PTSD P & T back to the onset date of his SSA award (1991)as this was when they established the entitlement arose.

You never claimed depression as due to your service?

Thanks Berta, I really believe I should be re-evaluated and my present claim amended under the new ruling as well.

As to the depression, No I did not claim it in my VA claim..the depression came during the time I had filed for SSA for heart disease and then I had bout of severe depression with suicide thoughts and ended up in lock down at the local hospital in the Hawthrone Center for a week. That was in 1996 just prior of being awarded SSD for CAD and Depression.

I sent an email back in Jan 2010 to the NVLSP with all my claim info for retro back pay once the new ruling was official in hopes they will assist me in getting the effective date back to 2001, then today I sent them another email with the status of my claim as it is now.

So if and when I get my SC for heart diseases amended to primary cause due to AO and not secondary to HBP, should I file an appeal asking for an effective date back to 1995 when I went on SSD for Coronary Artery Disease being I'm already SC for it...??

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