Nehmer Claim Pending

[ljocampo]

This thread is very much like my case.

Sorry if you find this post somewhere else. After I submitted the post as a reply, it didn't show up anywhere I could find, so re posted it as a new topic.

Hello all,

I was diagnosed in 1988 IHD CAD and became permanently disabled certified by Social Security in 1993. Lost my private medical coverage and need a program to cover the expensive cardiac drugs I need to stay alive. I had told my private cardiologist that I would seek treatment, management, and prescription for my IHD at the VAMC in Syracuse NY because they gave prior treatment to Vietnam Vets under their AO policies.

The VA agreed to treatment me in 1994 (there must be admission to care records somewhere), but they told me they wouldn't compensate me so don't bother to file for it, but they would take over treatment and they have been treating me ever since. In 2005 I finally did have a disability (DMII) the VA presumed and I filed a claim. The claim requested SC for IHD, DMII, PN, and multiple lipomas.

The C&P decision denied SC for IHD and the lipomas but gave me 10% for DMII, 20% PN for both lower legs. They also checked all the old records to see if the IHD could be secondary to DMII but concluded because it predated the DMII and the was no indicate of IHD in active duty, the IHD was not SC.

In 2009 after the VA announced they were going to add IHD to presumption, I filed to reopen the 2005 claim for IHD and to increase the the DMII rating. C&P sent me a letter acknowledging Nehmer and the denied claim. I've had an IHD exam that states I can't work work a < than 5 METs. I also have other cardiac problem that should put me at 100% and they should increase the DMII.

This is where the claim stands. I've nothing more from C&P. Want do you think?

[ljocampo]

Considering what we have learned from Nehmer all Vietnam vets should probably send in a claim for any type of cancer they come down with because it could be SC'ed a few years from now and the vet would have missed years of retro by not claiming the cancer. It is probably the same for any serious condition where there is any speculation that the condition might be caused by AO.

I don't want to seem greedy but I agreed with your premise. If I hadn't listened to the VA doctors who said don't bother filing, and DID file my IHD in 1993, I'd be getting one big retro hunk of change now. I've learned from this experience that just being grateful for the treatment was foolish. Vet in my position stand to lose many more years of retro because we believe what the was saying was the right thing. I know I'll be probably getting 150K+ but it easily could have been 600K. I'm sure there will be another class action over this and I'm going to start documenting for it now with an appeal to whatever they give me. I probably won't live to see it but my heirs will.

[Berta]

"I think the post about footnote 1 could be a basis for an appeal for an EED under Nehmer as an informal claim. I'm going to start organizing my appeal now for earlier date"

I used Footnote one myself for my claim.I discussed this with attorney at NVLSP and this Footnote is an important part of the Nehmer Training Guide.

The CRA I was referring to the report that VA did in response to the COngressional Review Act BS that held up adjudication of new AO claims last year.

"I've always been told they were benign. However, the VA did cut a few out" They might not be sarcomas- and they also- if STS cancers- might not have a ratable level of comp. Then again the scars could be ratable is they are STS cancers.

PS

The email addy for NVLSP AO claims is agentorange@nvlsp.org

[mozartplayer]

After reading postings on this forum for past 18 months, I now realize I should have filed a VA comp claim when I was first diagnosed with prostate cancer April 2005 and treated for it August 2005. I was left with significant residual side effects from the treatment, but still did not file a claim. I was subsequently diagnosed with hairy cell leukemia April 2007 which is still active with me, but did not file a claim until August 2009 after reading that the VA was planning to add hairy cell leukemia to the Agent Orange presumptive list. That claim is still pending almost 19 months later, but I did have a C&P exam last November which had to do only with the prostate cancer residuals. After reading everything I could find on the Nehmer rules and how it affects retroactivity of comp payments, I'm still confused as to how it applies to my claim, if in fact it does apply. I did not file until August 2009 even though my prostate cancer was diagnosed April 2005 and hairy cell leukemia was diagnosed April 2007 by bone marrow test. I assume, if approved, I could be paid back to the August 2009 date of my application, but do not know that for a fact. I"ll be happy just to get approved and not have to appeal a denial because I know how long that could take. I know that Social Security disability claims can sometimes be retroactive 12 months from date of filing, but do not know all the retroactive rules for VA comp claims. I spent 35 years working for SSA and had experience with thousands of disability claims during those years, but reading 38 C.F.R. 3.816 and other VA CFR references gives me a headache. I'd just like to get a decision while my mind is still capable of understanding it. I am encouraged by reading postings by those receiving favorable decisions.

I don't want to seem greedy but I agreed with your premise. If I hadn't listened to the VA doctors who said don't bother filing, and DID file my IHD in 1993, I'd be getting one big retro hunk of change now. I've learned from this experience that just being grateful for the treatment was foolish. Vet in my position stand to lose many more years of retro because we believe what the was saying was the right thing. I know I'll be probably getting 150K+ but it easily could have been 600K. I'm sure there will be another class action over this and I'm going to start documenting for it now with an appeal to whatever they give me. I probably won't live to see it but my heirs will.

[Berta]

Mozartplayer-

Nehmer only kicks in ( and provides additional retro) when a present AO claim was denied in the past.

I had an old PTSD causing heart disease claim in 1995 when I also had re opened both of my husband's other claims.

When those claims were awarded posthumously, I did not appeal the PTSD heart claim any further.

In Aug 2010 I filed for IHD under the new regs.

Then a CUE claim I had filed in 2004 (which regarded the lack of any rating whatsoever for my husband's IHD and no SMC consideration) was also pulled fr Nehmer Review (it was still pending) but it was the older 1995 PTSD -heart denial that put me into the Nehmer Court Order.

Only a past denied and unappealed claim for what can be construced to be the same disability as what is now an AO presumptive-will generate retro under Nehmer.

The older claim does not have to mention Agent Orange at all.

Some claims are obviously under Nehmer because a new AO presumptive such as IHD is listed in a past denial as NSC with a rating.

I had forgotten my PTSD claim when the other issues I had were resolved.Although my claims are widow's issues-it means Nehmer kicks in for accrued benefits and/or DIC.This is basically the same thing for Nehmer veterans- the EED is the date of their past denied claim in which the Now presmptive AO disability was denied.

When I heard the news about IHD (and am still stunned by its inclusion in AO regs) I remembered the older claim and accessed the BVA decision that denied it.

The Nehmer Training Guide here explains this in detail.

Past denial for IHD, regardless of why I claimed it -equals Nehmer retro.

[Berta]

Mozartplayer-

Nehmer only kicks in ( and provides additional retro) when a present AO claim was denied in the past.

I had an old PTSD causing heart disease claim in 1995 when I also had re opened both of my husband's other claims.

When those claims were awarded posthumously, I did not appeal the PTSD heart claim any further.

In Aug 2010 I filed for IHD under the new regs.

Then a CUE claim I had filed in 2004 (which regarded the lack of any rating whatsoever for my husband's IHD and no SMC consideration) was also pulled fr Nehmer Review (it was still pending) but it was the older 1995 PTSD -heart denial that put me into the Nehmer Court Order.

Only a past denied and unappealed claim for what can be construced to be the same disability as what is now an AO presumptive-will generate retro under Nehmer.

The older claim does not have to mention Agent Orange at all.

Some claims are obviously under Nehmer because a new AO presumptive such as IHD is listed in a past denial as NSC with a rating.

I had forgotten my PTSD claim when the other issues I had were resolved.Although my claims are widow's issues-it means Nehmer kicks in for accrued benefits and/or DIC.This is basically the same thing for Nehmer veterans- the EED is the date of their past denied claim in which the Now presmptive AO disability was denied.

When I heard the news about IHD (and am still stunned by its inclusion in AO regs) I remembered the older claim and accessed the BVA decision that denied it.

The Nehmer Training Guide here explains this in detail.

A Past denial for IHD,Parkinsons or Hairy Cell B, regardless of why it was claimed it -equals Nehmer retro when they adjudicate the newer claim or have pulled the older claim out for Nehmer review----that is retro depending in the percentage of disabilty at time of past claim which can be a staged rating up to the most recent C & P .