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.

[stillhere]

Hi Berta,

I know I have posted this before but can't seem to find it so here goes again. I served Nam 69/70 Danang "Red Beach"

I was diagnosed with DB2 on Feb 02 I did not file until May 03 and was awarded to that date. I NOD for an earlier date of when I was diagnosed on 02 and was denied again. I let it drop after that. Is this the correct and if so why?

Stillhere

[Guest jangrin]

Hi Berta,

I know I have posted this before but can't seem to find it so here goes again. I served Nam 69/70 Danang "Red Beach"

I was diagnosed with DB2 on Feb 02 I did not file until May 03 and was awarded to that date. I NOD for an earlier date of when I was diagnosed on 02 and was denied again. I let it drop after that. Is this the correct and if so why?

Stillhere

Stillhere, I think both of us have been confused regarding the earlier effective date. I think I am understanding this a little bit better now so let me try.

In Nehmer the veteran had to have filed a claim betwen 1985 and 1989 and been denied. Or had to file a claim between 1989 and when Nehmer went into effect. Or filed a claim within one year of seperation of service.

(There are other regulation for DIC)

1. Claims by Nehmer Class Members Denied Between September 25, 1985 and May 3, 1989

2. Claims by Nehmer Class Members Pending on May 3, 1989, or Filed Between

May 3, 1989 and the Effective Date of the Authorizing Statute or Regulation

(which for DMII I believe is May 6, 2001)

3. Qualifying Claims by Nehmer Class Members Filed Within 1 Year After Separation From Service

Since you haed not previously filed a claim during any of these times, you are not eligible to an earlier effective date on your claim other than the date you filed (you filed after the May 6, 2001). The exception to this...is.. if you were diagnosed with DMII and your were disabled (SSDI) due to DMII or one of the other presumtive diseases, then you may be allowed to an EED of UP to one year from the time you actually filed your claim.

This is my take on this. - Jangrin

PS_ unfortunately, the fact that you may have had DMII and had been diagnosed with DMII means very little according to how I'm reading this Nehmer decision. So you and us are stuck with the filing date unless we were on disability prior to when we filed the claim. It's seems really unfair, but since when are things fair.

Edited July 15, 2007 by jangrin

[Berta]

I hope they also rated any complications you had from the DMII-

are you saying they awarded to the date of your claim (May 03) or to date of diagnosis (Feb 02)?

Only a CUE claim can correct this if the appeals periods are all over.

There is plenty of info here as to the format of CUE claims.

Tell them they made legal error in failure to apply Nehmer retroactive regulations-as enclosed ( thenprintout these regs from the NVLSP web site or from M21-1 at link I gave)and enclose as evidence to support the CUE-

and I am VERY sure you could search and find many other cases at CAVC and especially at BVA to support your legal position.

BVA printouts for claims often are rejected correctly by the RO -because they do not apply to a vets specific medical situation-even though it can be the same in every way as the vet in the decision you send them.

Ron Abrams -lawyer from NVLSP who co authored the VBM gave me permission to quote parts of the VBM at hadit but I cannot copy it all it-page after page ----as to Nehmer-

and every vet is in a unique situation that only by reading Nehmer info- can they determine what category they are in and if VA (more than likely in many cases I see ) stills owes them money.

Focus in on this part of the regs-as explained on page 634 of the 2006 edition of the VBM:

Category # 3 vets only- these are claimants who filed AFTER the regs for their AO disability was published-you, Donnie, and I am Category # 3. As I interpret this.

For Category # 3 vets and widows-

"The rule requires the calculation of two dates"

date one is the amendment date of the regs for the disability-(published date in the Fed reg.and 38 CFR3.307, 3.309

DMII is May 1 2001

NHL Feb 3 1994

STS cancers Sept 25, 1985 etc

Date # 1 is the date of the regs becoming law

Date # 2 is the "earlier of the two following dates: 1 (one)year before the date if filing the application that was ultimately granted."

or

"one year before the date the VA or the reviewing court made its decision to award the benefit."

"Of the two dates (date # 1 and date # 2) produced by these two formulas, ther appropriate effective date is date # 1 or date # 2 ,whichever is LATER."

NVLSP Page 634 of the VBM 2006 edition.Not sooner ---later----

The examples I gave here yesterday show exactly what is meant here.

The quotes are from NVLSP. They WON Nehmer.

I cant explain this any better or get into it any further. I suggest you go to your rep with this,get his or her support , and file a CUE claim.

Legal errors -BVA decisions however can support this type of CUE because 38 CFR raised to RO as fact of law- has nothing to do with medical assessment.

I sent in 4 BVA cases and Gen Counsel Pres Op to support my CUE claims.

The legal information-not medical- was the point of citing them to the RO.

They probably owe us all money under Nehmer-you, me and Donnie in my opinion.

[Berta]

and I think they owe Jangrin's husband more retro too!!!!!

Many vets who challenged AO EED were denied many times- and didnt take it further- NVLSP found many of them and got them their retro- now it is up to us as individual claimants to insist they apply Nehmer correctly- NVLSP is busy with the BWV case at the Fed circuit court-

we have to use their advise from the VBM (130 bucks ? maybe more? at their Web site-) I have bought the VBM since 1991 and could not have won my past claims without it. I needed the phone/ fax numbers in it as the RO lost my medical evidence a dozen times at least.I started faxing it to Jesse Brown and the RO director.

They are pro bono veterans attorneys fighting class action veterans issues such as Nehmer and Blue Water and sure dont get rich off selling the VBM.

Consider making the investment into this wonderful guide to the whole 9 yards of the VA claims process.

Edited July 15, 2007 by Berta

[stillhere]

I hope they also rated any complications you had from the DMII-

are you saying they awarded to the date of your claim (May 03) or to

date of diagnosis (Feb 02)?

The VA awarded to date of claim May 2003 Thanks, Stillhere

Only a CUE claim can correct this if the appeals periods are all over.

There is plenty of info here as to the format of CUE claims.

Tell them they made legal error in failure to apply Nehmer retroactive regulations-as enclosed ( thenprintout these regs from the NVLSP web site or from M21-1 at link I gave)and enclose as evidence to support the CUE-

and I am VERY sure you could search and find many other cases at CAVC and especially at BVA to support your legal position.

BVA printouts for claims often are rejected correctly by the RO -because they do not apply to a vets specific medical situation-even though it can be the same in every way as the vet in the decision you send them.

Ron Abrams -lawyer from NVLSP who co authored the VBM gave me permission to quote parts of the VBM at hadit but I cannot copy it all it-page after page ----as to Nehmer-

and every vet is in a unique situation that only by reading Nehmer info- can they determine what category they are in and if VA (more than likely in many cases I see ) stills owes them money.

Focus in on this part of the regs-as explained on page 634 of the 2006 edition of the VBM:

Category # 3 vets only- these are claimants who filed AFTER the regs for their AO disability was published-you, Donnie, and I am Category # 3. As I interpret this.

For Category # 3 vets and widows-

"The rule requires the calculation of two dates"

date one is the amendment date of the regs for the disability-(published date in the Fed reg.and 38 CFR3.307, 3.309

DMII is May 1 2001

NHL Feb 3 1994

STS cancers Sept 25, 1985 etc

Date # 1 is the date of the regs becoming law

Date # 2 is the "earlier of the two following dates: 1 (one)year before the date if filing the application that was ultimately granted."

or

"one year before the date the VA or the reviewing court made its decision to award the benefit."

"Of the two dates (date # 1 and date # 2) produced by these two formulas, ther appropriate effective date is date # 1 or date # 2 ,whichever is LATER."

NVLSP Page 634 of the VBM 2006 edition.Not sooner ---later----

The examples I gave here yesterday show exactly what is meant here.

The quotes are from NVLSP. They WON Nehmer.

I cant explain this any better or get into it any further. I suggest you go to your rep with this,get his or her support , and file a CUE claim.

Legal errors -BVA decisions however can support this type of CUE because 38 CFR raised to RO as fact of law- has nothing to do with medical assessment.

I sent in 4 BVA cases and Gen Counsel Pres Op to support my CUE claims.

The legal information-not medical- was the point of citing them to the RO.

They probably owe us all money under Nehmer-you, me and Donnie in my opinion.

[stillhere]

Berta, Please read my other reply of July 15th and let me know what you think.

Thanks, Stillhere