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Persistant posted a question in VA Disability Compensation Benefits Claims Research ForumBerta told me about Footnote One Nehmer yesterday and I had not heard about that although I do know about Nehmer. And yes my husband was rated for Ischemic heart disease before it was added to the presumptive list. And his death certificate signed by his GP at VA saying long term heart disease. It was rated as secondary to diabetes (which was rated 20% initially) and was already a presumptive condition. He had applied for both at that time - about 2003 or 2004. He was rated 30% initially for his heart even though he had had a quadruple bypass (Dec 2000) with neurological complications, extensive scar tissue from many previous heart attacks that had to be cleaned out before the bypass could proceed in surgery. He had a TIA on the operating table and post pump syndrome from being on the heart lung machine so long (due to the cleanup) for surgery. He was told by his heart specialist he could no longer work at what he was skilled to do. He was granted SS Disability as a result 9 months later. He filed his first VA claim a couple years later when his buddy finally persuaded him to do it. He had been diagnosed with Type II Diabetes in 1997. They didn't address any of the neurological stuff (from the heart surgery) as I recall at all or the post pump syndrome (which usually goes away rather quickly but was a problem for at least a couple years for Don). The lower left ventricle of his heart was dead already before surgery from previous attacks we didn't know about - silent due to diabetes. And his ejection fraction was 25 before and right after surgery and then came up to 30-35. It bounced around some over the years but was usually 30-40. He had an echocardiogram every year which approximated it. After 2 hospitalizations for Congestive Heart Failure over the next few years, they finally rated him 60% heart and 40% diabetes (when he became insulin dependant. Shortly after starting insulin - a few months - Don was put on an insulin pump because he was needing so much insulin and put him on the U500 insulin which is very closely monitored because of being so very strong) and VA rated him for 10% each leg for Peripheral Neuropathy. Don also claimed PTSD, which should have been granted, as we had a few years worth of records already from a private practice psychologist the VA had recommended whose report said he had it and it was from VietNam (non-combat). But Va's C&P psychologist or psyciatrist said he wasn't sure of that origin. He agreed Don had it. They asked us to prove Don's stressors. We searched for months for other guys Don remembered being there, found one but couldn't prove the stressors. They never contacted us when the requirement to prove stressors was lifted to re-evaluate his claim. In 2006 they rated him TDIU and his heart 100% by itself in the same decision with effective dates a few months apart??? Makes no sense to me since the TDIU was then dropped due to the 100% rating. That was his last rating - 2006. He developed kidney failure late 2010 with a hospitalization of a few weeks for Congestive Heart Failure because the kidneys weren't removing the fluid with normal types of hospital treatment. He was treated by a team consisting of his heart specialist, his GP who had admitted him, and the new Nephrology group the GP brought in. All Private Practice doctors and hospital. They finally tried something rather bold, I'm told, that started the fluid draining. After discharge, at home, he had a few weeks of digital monitoring of his stats, reports I had to give them on weight and output amounts etc. and nurse visits and was told to prepare for dialysis. About that time his doctor at VA called, alarmed, at his rapid decline in kidney function. That is in the medical records at VA along with numerous notations of him being on dialysis and having a port in his abdomen for it, every time he went in for a 6 month checkup. As you know, Berta, we asked about rating his kidney failure (which his doctors say was from diabetes making it another secondary condition of diabetes and so service connected..) and 3 different VSOs in 3 locations each said we couldn't go above 100%. I didn't know about these kind of forums then. And only discovered the blog I reference below, by accident. We also asked his doctors at VA and they didn't know either. But one of them (unbeknownst to us) requested payment from VA for the 'dialysis treatment plan' and they agreed to pay for supplies, treatment, bi-monthly clinic followups with the 'team' (nephrologist, nurse, dietician, social worker). They also covered delivery of supplies to our home bi-monthly (huge amount of heavy bags of fluid and much more.). He had started dialysis April 2011 and they began paying April 2013 and continued until his death Dec 6, 2015. In March 2015 I saw a blog about Special Monthly Compensation and about rating conditions beyond the 100% level. I asked for an analysis of Don's case and the attorney agreed requesting Don's C-File from VA in March. It didn't arrive until late Aug 2015. The analysis wasn't quite finished when he died. A & A was definitely something he qualified for as well and I have many statements from friends, relatives, our pastor etc as well as notes in VA's files and doctor statements about it. But that's another story. I don't know if Nehmer affects anything I've said here or not. Does anyone else? Berta? And we were not ever contacted by VA or NVLSP about it. Maybe because he was already 100%? I did apply for DIC and Accrued benefits within the year following his death and was granted DIC and denied accrued because they said there weren't any. They never checked his C file or medical records or Treasury to discover anything really. I had thought the attorney would represent me in an appeal but he's decided not to. My DIC was granted at the higher level due to Don having been 100% for over 8 years. I'm not sure what you thought I interpreted wrong about that Berta.
http://community.hadit.com/topic/69387-poopsy-woopsy/ This came up in the above thread and although the info on Nehmer is a signifiant amount here in the AO forum, this had to be clarified as it could be hard to find under a search. Nehmer class action members who are the survivors of a AO veteran, under the 2010 Nehmer Court Order (which service connects IHD, Hairy Cell B, and Parkinsons in all incountry Vietnam veterans, do not have to file for substitution or accrued benefits when they file their AO DIC claim. All other surviving spouses of vets who had claims pending at death must file as substituted claimant or for accrued benefits within one year of the veteran's death. Accrued benefits are defined in detail here under a search. I took this definition from a BVA case, which made it easier for me to find: This is the regulation regarding Nehmer claims, which is defined as a retroactive payment, not an accrued payment:: “I. Retroactive Benefits The appellant contends that the Veteran's heart disease was due to Agent Orange exposure and, therefore, retroactive benefits are warranted pursuant to the Nehmer decision. This is not a claim for accrued benefits. The RO, on its own initiative, sent the appellant a letter in March 2011 explaining that it was going to review the matter pursuant to Nehmer v. Veterans Administration of the Gov't of the U.S., 284 F. 3d 1158 (9th Cir. 2002). The provisions of 38 U.S.C. 5121(c) and §3.1000(c), which require survivors to file claims for accrued benefits, do not apply to payments under 38 C.F.R. § 3.816, regarding awards under the Nehmer Court Orders for disability or death caused by a condition presumptively associated with herbicide exposure. See 38 C.F.R. § 3.816(f)(2) (2015). 1) Applicable Law Retroactive benefits may be paid under Nehmer if a Nehmer class member is entitled to disability compensation for a covered herbicide disease. See 38 C.F.R. § 3.816. Nehmer class member means: (i) a Vietnam veteran who has a covered herbicide disease; or (ii) a surviving spouse, child, or parent of a deceased Vietnam veteran who died from a covered herbicide disease. 38 C.F.R. § 3.816(b)(1). If the class member's claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose, except as otherwise provided in paragraph (c)(3) of this section. 38 C.F.R. § 3.816(c)(2). The covered herbicide diseases are listed in 38 C.F.R. § 3.309(e). See 38 C.F.R. § 3.816(b)(2). This list includes ischemic heart disease, which was added to the list of covered herbicide diseases effective from August 31, 2010. See 38 C.F.R. § 3.309(e); 75 Fed. Reg. 53202 (Aug. 31, 2010). “ https://www.va.gov/vetapp16/files2/1609942.txt (this BVA claim for DIC was denied but still held the exact regulation regarding Retroactive Benefits which made it far easier for survivors to attain than trying to claim accrued if over a year had passed after the veteran's death) I recall here over the past 2 decades that we never dreamed the VA would ever compensate IHD for AO exposure. Certainly many and probably ALL widows with a AO IHD death claim never could have filed for accrued benefits anyhow for AO IHD because there was no regulation for AO IHD prior to August 2010. The above claim was denied thus: "FINDINGS OF FACT 1. The Veteran did not have service in the Republic of Vietnam and is, therefore, not a Nehmer class member. 2. The current effective date of November 1, 2008, represents the first day of the month in which the Veteran's death occurred where the appellant's claim was received within one year after the date of his death." But it did contain a good explanation of Retro payments instead of "accrued" benefits, that Nehmer Class action members, as survivors, could expect even if an accrued claim had never been filed for AO IHD. And just to add....many of us Nehmer Class action survivors were also Footnote One claimants. I have explained Footnote One here Many times since 2010 and added Rick Spataro's emails to me on it ( NVLSP Head AO lawyer) and all of that that is easily searchable here ( I hope) and was the most important and unique aspect of Nehmer 2010. Agent Orange is still harming and killing our nation's veterans. But only those vets or their survivors as defined in the above citation from the BVA and in the the Nehmer Court Orders are Nehmer class action members.
If VA adds bladder cancer to the list of conditions presumptive to Agent Orange exposure then it could spell backlog (and Nehmer) once again for VA. Possibly a smaller backlog, but nonetheless a backlog. It's currently under review by VA once again. https://www.propublica.org/article/vietnam-vets-push-va-to-link-bladder-cancer-to-agent-orange I know there are many different pushes to have conditions or service areas added, but in my experience with VA they will attempt to take the smaller groups first. Go figure.
I dont know if you are a Nehmer Class Vet or not, you can probably ask NVLSP: http://www.nvlsp.org/what-we-do/class-actions/nehmer-agent-orange-lawsuit In part: As class counsel, NVLSP currently has a team of five attorneys and a paralegal devoted to ensuring that the Department of Veterans Affairs (VA) meets its obligations under the Nehmer Court Orders. These NVLSP attorneys work with class members to ensure that the VA assigns them the correct effective date for their benefits and pays them the proper amount of retroactive compensation. Over the years, NVLSP’s attorneys have identified more than 2,000 cases in which VA has shortchanged individual Vietnam veterans or their survivors on the amount of retroactive benefits owed, resulting in payment of more than $50 million in additional benefits. Vietnam veterans and their survivors who believe that VA has not assigned them the correct effective date for the award of benefits for their Agent Orange-related disease can contact NVLSP’s Nehmer team at the team’s toll-free hotline number – 855-333-0677.