Nehmer Case Question

[mitchell3006]

I have read till I'm cross-eyed and confused. I was talking to my mother about DIC and found she was only getting it since 2001 for Dad's death, service connected to DMII Dad died in Dec 93, she filed Apr 94. He also had open claim for DMII and peripheral Neuropathy at time of death. Shouldn't Nehmer back pay her to at least Apr 94. It also looks like his estate should get back pay to original claim for service connection back to 91. Am I barking up wrong tree or should I jump on this with both feet.

[Berta]

Yes -the Nehmer Stipulation and court order is extensive legal beagle stuff-

I expect a Nehmer award soon-for direct DIC (I get 1151 DIC now) and under Nehmer they have to SC my husbands death back to the date of his death-DMII- sounds like your claim here-but it is quite different-

It looks like they used the 2001 date (5-8-2001)from the day that DMII got into the regs-for her DIC-

"It also looks like his estate should get back pay to original claim for service connection back to 91"

She should have been eligible for accrued benefits-as I see this and possibly a better DIC EED-

What did the decision say about accrued benefits?

Have you read any of my posts here yet on the Nehmer Stipulation and Retroactive payments?

I believe that her DIC should have began -retro to the date of his death.It will take me time to go over Nehmer again-

but in this respect it is same as my DIC claim- and I expect my direct SC DIC award has to be made back to Rod's death.

(I wont get double DIC-though but I understood Nehmer this way too and will try to find some BVA cases and NVLSP info as examples-for you to raise this issue with the VA.)

The VA snookered MILLIONS from vets and widows under Nehmer already so this might well get your mom more DIC-

The accrued award- accrued claims are part of the inital 21-534 DIC application.If the veteran had a claim pending in his lifetime (my husband had two) they start all over again as the widow must formally re-open them, support them with evidence and continue to prosecute them until the VA renders a posthumous award.

Did she formally re-open anything he had pending at death?

[mitchell3006]

In the VA Summary of Evidence granting DIC in 2001 they say:

01/03/94 "A statement was recieved from MR. XXXXXCounty VSO, indicating that widow wished to continue the veteran's claim for service connection resulting from AO exposure as she feels his death is service connected" (Died 12/15/93)

Decision was deferred pending reciept of alternative processing instructions.

Formal 21-534 recieved on 04/21/94

Decision denying claim was 05/05/94 (wish they were still that quick to let us know something.

Mom's VSO went down due to Alzhiemer's about the time she was granted DIC so she missed out on a lot. She has been paying insurance, glasses, presciptions, etc. I found this working on my own claims.

Oct 2001 decision granted 08/01 as DMII effective date was 07/09/01???

This new claim was filed 04/03/01??? EED is strange anyway.

[Berta]

I think you are right on the EED-

the earlier denial in 1994 supports in my opinion- that the DIC EED is wrong-

I am attaching 2 pages from the 2007 Edition of the VBM from NVLSP- I regret it was hard to scan them well- the book is big and keeps slipping off the scanner-as I stretch to click it into the doc.

I suggest that she prepare a letter to the VARO and state that she believes an procedural error in their interpretation of Nehmer occurred when they failed to award her DIC back to the date of his death,in their decision dated _____, regarding XC -xx xxx xxx.(her c file number)She should cite Nehmer V. Veterans Administration, 284,F3rd, 1158 and 38 CFR 3.816 (2008) and tell them she is enclosing pages 635, 636 of the Veterans Benefits Manual 2007 Edition from NVLSP (National Veterans Legal Services Program)to support this request and ask that they prepare a proper EED and retroactive award on her DIC.

Gee having upload problem

[mitchell3006]

Berta,

I thought I was on the right track but guess I needed confirmation that it wasn't wishful thinking. She got dropped through the cracks with the change in county VSOs. The new one assumed that everything was taken care of and she believed the VA letter. They offered her education benefits. No info on ChampVA or anything else. I have looked at this stuff enough till I think I confused myself. I know, easy to do. I still have two claims and an appeal pending and I guess this gives me something to do while I wait. Thanks for the quick response.

Mark

[Berta]

Gee -I cannot attached those 2 pages yet-

I dont get it- if they gave her Chap 35 award-so they should have determined that her husband was 100% P & T before he died- (an accrued benefit to her-posthumously-2 years accrued due the vet in his lifetime-)

Also VA should have sent her a letter saying she might be eligible for CHAMPVA and how to reach them.

She should go to the CHAMPVA web site and make a formal application- she will need the VA award letter and stuff- they will tell her what to send to them-and maybe the CHAMPVA would be retroactive- I dont see why it wouldn't-

[mitchell3006]

We got her started with the application for CHAMPVA as soon as I realized that she should be covered. He was only being paid at 60% when he died. Don't know what the DMII and Peripheral Neuropathy might have added to that. Was not 100% P&T at time of death. We already covered Social Security. Took forever with them to admit the conditions disabled him. My argument to judge was that they had to be disabling, death is about as disabled as you can get.