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N4XV

Filed Ihd Claim Then Filed For Iu

Question

Awhile back I reopened my claim for IHD when the announcement to add it the AO list was first made by the VA Sec. A few weeks later I was advised by some on this board and another board that I should also file for IU. I am presently rated 30% combined for DMII and tinnitus. In 1991 I filed for VA pension for CAD when I first became totally disabled from CAD with the VA while awaiting  SSDI claim submitted by my cardiologist that told me I'd never be able to work again following a failed 3x bypass and after my 4th MI. While awaiting the out come of my SSDI claim for a VA pension and it was approved and then the SSDI came through approved. At the time I was not aware I could not collect both VA pension and SSDI at the same time. When the VA found out I was collecting both they stopped my pension and said I had to pay back the Pension funds I received and I made arrangements and paid it all back. Then in 2001 I submitted a cliam to the VA for DMII and CAD secondary due to AO exposure. The VA granted the DMII but denied the CAD stating it was DX'd prior to the Dx of the DMII. After reopening my CAD claim under the new presumptives (of which I've been expecting at least a 60% rating that would meet the criteria for IU) and then filing the new claim for IU I got the decision three months later on the IU being denied  because the VA stated I did not meet the criteria for IU of which I fully agree because at that time and still am only at a 30% combined rating. After my C&P for the reopened IHD claim I got the examiner's report that in my opinion is very favorable for maybe a 100% rating for IHD. The report stated I have IHD with estimated LVEF of 50% from a poor quality ECHO, it also states an estimated METS of 3 or less and chronic congestive heart failure and haven't been able to work for over 20 years. The decision for denial of IU came down 2 months after I had the my C&P for IHD. 

I have two questions in relation to the above and would appreciate any comments or opinions. Could the IU denial possibly have been done so quickly because the VA realized by the results of the C&P that I'd be rated 100%? And 2, I am confident  I should fall under Nehmer at least to the 2001 denied claim but was wondering is it possible Nehmer would bring it back to 1991 for the granted then rescinded pension claim. Again any insight, comments and opinions will be greatly appreciated.

N4xv 

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4 answers to this question

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In my opinion it is all going to come down to Nehmer and how it is going to be applied. It looks like it could fit in either of the instances but the VA may try and lowball. But think you will win in appeal.

You do have the option of appealing the IU but why? Your IHD claim will more than likely be awarded quicker.

I was lucky if you want to call it that in that I filed for both heart and DM2 and the same time but they denied my heart even though my LVE was 50% I had to wait until a heart attack in 05 to be rated at 60% sec to dm2.

Easy for me to say but we all are just going to have to wait for these folks to get their heads screwed on right and award these claims. But like I said you will prevail and then you can fight for the right date!!

Good Luck to you!

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Stillhere

Thanks for your reply. I feel 80% confidant that I will get a 100% rating for the heart but if I get 60% for some reason I will then meet the criteria for IU and then NOD for reconsideration. Waiting for the Regs. to be finalized and getting a rating cuts it close to the one year time limit to NOD. I know I could NOD now for the IU denial but like you said whats the sense as at present I still don't meet the criteria.

As for the Nehmer issue I don't think the VA will try and mess with it for the 3 new presumptive conditions. It is a court ordered stipulation and it has already been factored into the proposed reg. and from what I've been getting from other boards the big hold up with the final regs. at the OMB is tweaking some of the figures for the financial projections and there shouldn't be any real major changes to the final reg.  

 I'm just hoping my EED will go back to the pension date of 1991 rather than the comp. denial date of 2001 and if it doesn't I will definitely appeal that.

 Again thanks for your reply... N4xv

 

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I send an email off to NVLSP last week with basically the info as in my original post and this was their answer:

Dear Mr.xxxxxx,

You are correct that under Nehmer youwill almost certainly be entitled to service-connected disability benefits forCAD retroactive to the date of your 2001 claim.  It also appears likely,from the VA’s Nehmer Training Guide, that the VA will treat your 1991 pensionclaim that was based on CAD as a claim for service-connected disabilitybenefits under Nehmer.  Therefore, you will most likely receivebenefits retroactive to the date of your 1991 pension claim.

Sincerely,

XXXXXXXXXXXXXXXX

Staff Attorney

National Veterans Legal Services Program

Boy oh boy!, does this make me feel great!!!!!

N4XV

 

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Congratulations it ceertainly sounds like you are going to get your just rewards but I would caution you not to go spending the money until it is in bank. But you do have it virtually in writing just not from the VA.

To bad the VA I will not be that committable in their answers to vets!

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