Jump to content
VA Disability Community via Hadit.com

VA Disability Claims Articles

Ask Your VA Claims Question | Current Forum Posts Search | Rules | View All Forums
VA Disability Articles | Chats and Other Events | Donate | Blogs | New Users

  • hohomepage-banner-2024-2.png

  • 27-year-anniversary-leaderboard.png

    advice-disclaimer.jpg

  • donate-be-a-hero.png

  • 0

Nehmer Class Retro Pay For Ao/ihd Effective Date

Rate this question


NSA-Saigon-ET

Question

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

Link to comment
Share on other sites

  • Answers 28
  • Created
  • Last Reply

Top Posters For This Question

Recommended Posts

"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
Link to comment
Share on other sites

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
Link to comment
Share on other sites

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.

Link to comment
Share on other sites

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?

Link to comment
Share on other sites

"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.

Link to comment
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
×
×
  • Create New...

Important Information

Guidelines and Terms of Use