diabetes For Donnie And All Ao Vets

[Berta]

Donnies post under 38 USc 5110 and others here might see what I mean in my reply to him within this recent BVA case:

http://www.va.gov/vetapp07/files1/0702913.txt

Next to the VCAA the Nehmer decision was the most important decision I have ever seen -after 25 years dealing with the VA-

I have spent considerable time studying the legalize of this case and have discussed Nehmer with the lawyers who won it at NVLSP in Washington DC.

I found this AM that there were 3 BVA decisions re Nehmer retro that I feel were definitely wrong in their interpretation of Nehmer - in 2007-that surprised me-I will re-read them -maybe I missed something

I hope the vets appealed to the court.

This is an important part of the above BVA decision link-which is correct.

ORDER

"Entitlement to an effective date earlier than November 20,

2002, for the grant of service connection for diabetes

mellitus, type II, is denied"

OK- denied- but the vet filed his initial claim for DMII on Nov 20, 2003.

The DMII regs were law as of May 8, 2001.

The vet wanted more retro but was denied.

The point here is- and it is critical to Donnies question below-

the VA DID award an EED one year prior to filing his claim for DMII.

Medical evidence shows that he did have SC DMII for one year prior to filing his initial claim.

The RO correctly awarded this favorable EED- because he was Categiry # 3 class action Nehmer vet-I think Donnie here is also Category # 3 vet-

This is also clearly spelled out in the 2006 edition and prior editions of the VBM published by NVLSP.

Page 634 and 635.

EVERY AO vet should double check their decision and the Nehmer regs- the VA tried to snooker millions from AO vets in retro-

I have no doubt that they still fail to award proper EEDs in many AO claims.

A category # 3 AO vet can often get an EED beyond the date of the AO claim-up to one year more retro.

I cannot explain it all here because it would turn into a small book.

The VBM contains considerable information on this important Class action case.

[theotherguy]

Berta,

Can you explain what you mean by a category 3 Nehmer veteran? Does it mean that while the veteran is a "Nehmer class-member" he/she is not entitled to an earlier effective date under Nehmer? Sorry, I don't have a VBM and although I get the TVA from NVLSP I don't have issues which back date that far. Thanks :D

While I agree with you that all AO vets need to check their effective dates, this case appears to be a perfect example of what happens when an incomplete application for benefits is submitted. I know that this topic has been discussed before here, but I wanted to point out that the fact that he was diagnosed more than one year prior to his date of claim is not what earned him an earlier effective date. The BVA decision cites "A March 2004 report of contact notes that a call to Dr. S.S.'s office revealed that he had treated the veteran for diabetes mellitus since April 2002, although the veteran reported a history of becoming insulin dependent in 1987."

If the veteran had submitted his private treatment records with his claim he probably would have been granted the one year earlier effective date up front. The guys I've helped out have a hard time understanding why they need to provide the VA with anything other than a current diagnosis. This is a perfect example of why it is important to submit all pertinent evidence up front.

[Berta]

Right- it was Nehmer that gave him the EED- it is in the Court order and Nehmer stipulation

Here is a little more from M21-1 :

http://216.239.51.104/custom?q=cache:fvfUt...326217334650925

M21-1 has much more too-

There is plenty of info on Nehmer but the best info is in the VBM and at NVLSP-

however their web site info on Nehmer is a older post-not really current at all-

NVLSP had to go to court even after the original decision to square VA away on all this- it has been quite a battle but they (NVLSP) won it-

there are too many pages of discussion on Nehmer in the VBM for me to scan and put here.

Category # 3 class action Nehmer vet or widow -I am Cat # 3 widow:

Example:

in 1993 vet is diagnosed with larynx cancer. The vet was incountry Nam.

vets file claim on Dec 1, 1994.

VA grants claim with EED of June 9,1994.

(June 9 1994 is the effective date the regs became law)

another example:

in 1993 a different Vietnam vet is diagnosed with larynx cancer.

This vet files claim on Dec 1, 1995.

Vet gets retro to Dec 1,1994.

another example- all from the VBM

vet dies with AO lung cancer causing death in 1993. Lung cancer (only STS cancers of lung are due to AO) lung cancer regs become law June 9 , 1994

widow does not apply for DIC until August 1, 1996.

in NONE AO cases-the widow has lost any accrued benefits- this is an AO widow-

she is Nehmer Catergory # 3 class action member

The VA grants (she has lost 1993 date of death as EED because she filed after the first year after death)

BUT her EED for DIC is August 1, 1995.

Nehmer has allowed her to recover an additional year of DIC.

Her actual claim date was August 1996.

Editing to add these are the examples as found within the VBM.2006 ed.

Personal example:

A proper decision on my AO death claim presently in rating board will

have an EED to 13 years ago.

The VA took a large offset from my 1151 DIC.7 years of it I think. I want the offset back-

Also I have a claim regarding an additional year of accrued.

They gave me 2 years. My claim is under Bonny V Principi for the additional year of accrued.

Nehmer will make that claim moot. When I succeed in my AO claim -my EED for the veterans accrued benefits is 3 years prior to his death.I got 2 years so they will owe me that additional year accrued too -at 100% less 30%.Plus SMC.

Edited July 14, 2007 by Berta

[donnie]

Right- it was Nehmer that gave him the EED- it is in the Court order and Nehmer stipulation

Here is a little more from M21-1 :

http://216.239.51.104/custom?q=cache:fvfUt...326217334650925

M21-1 has much more too-

There is plenty of info on Nehmer but the best info is in the VBM and at NVLSP-

however their web site info on Nehmer is a older post-not really current at all-

NVLSP had to go to court even after the original decision to square VA away on all this- it has been quite a battle but they (NVLSP) won it-

there are too many pages of discussion on Nehmer in the VBM for me to scan and put here.

Category # 3 class action Nehmer vet or widow -I am Cat # 3 widow:

Example:

in 1993 vet is diagnosed with larynx cancer. The vet was incountry Nam.

vets file claim on Dec 1, 1994.

VA grants claim with EED of June 9,1994.

(June 9 1994 is the effective date the regs became law)

another example:

in 1993 a different Vietnam vet is diagnosed with larynx cancer.

This vet files claim on Dec 1, 1995.

Vet gets retro to Dec 1,1994.

another example- all from the VBM

vet dies with AO lung cancer causing death in 1993. Lung cancer (only STS cancers of lung are due to AO) lung cancer regs become law June 9 , 1994

widow does not apply for DIC until August 1, 1996.

in NONE AO cases-the widow has lost any accrued benefits- this is an AO widow-

she is Nehmer Catergory # 3 class action member

The VA grants (she has lost 1993 date of death as EED because she filed after the first year after death)

BUT her EED for DIC is August 1, 1995.

Nehmer has allowed her to recover an additional year of DIC.

Her actual claim date was August 1996.

Editing to add these are the examples as found within the VBM.2006 ed.

Personal example:

A proper decision on my AO death claim presently in rating board will

have an EED to 13 years ago.

The VA took a large offset from my 1151 DIC.7 years of it I think. I want the offset back-

Also I have a claim regarding an additional year of accrued.

They gave me 2 years. My claim is under Bonny V Principi for the additional year of accrued.

Nehmer will make that claim moot. When I succeed in my AO claim -my EED for the veterans accrued benefits is 3 years prior to his death.I got 2 years so they will owe me that additional year accrued too -at 100% less 30%.Plus SMC.

[donnie]

Berta, This is powerful information and good cases and examples. As I am a rookie, please tell me more about how to look up references to VBM and NVLSP. I'm not sure what these mean or how to find them. Thanks again, Donnie

[theotherguy]

Berta,

I see where you are coming from now, my confusion is basically just a matter of how you were wording it. While the veteran is a Nehmer class member, his effective date goes back using liberalizing legislation under 38 CFR 3.114. I guess I have never thought of these as "Nehmer grants" per se, since the regulations were in place to protect them regardless of any impact the Nehmer case has had on the grand scheme of things. No biggie, I just wanted to make sure I was not missing your point.

It is really good info to make sure that all AO vets get a chance to read over 38 CFR 3.816 and 3.114.

Good idea :D

Edited July 14, 2007 by theotherguy

[Berta]

It is a very involved legal issue.

search for Nehmer Retroactive at :

http://www.nvlsp.org/Information/ArticleLi...etrobenefit.htm

and in other parts of their site- but they are busy in court these days over Blue Water regs- this info might be outdated

Best info I use is the VBM- it can be purchased via the NVLSP web site- $130.00 I think?

unless you know someone with a copy-

NVLSP tells the whole Nehmer story there and more detailed info as to how the EEDs are determined in the VBM- they know I quote some of it here but I cannot scan and post all the info on Nehmer in it.

Also the BVA web site- an excellent source of info on these Nehmer EEDS with many real cases that refer to the Nehmer regs.

Edited July 14, 2007 by Berta