Request For Earlier Effective Date On Dmii Claim

[donews]

Ok, Thank You all for the help on the Depression Claim, it went out certified with return receipt today.

Now on to the next claim in line.

I was given an effective date for my DMII the same as the date I filed the original claim (March 28, 2005).

At some point I saw a statement in one of the decisions that said I could possible get an earlier effective date if I can prove I was being treated for DMII before March 28, 2005.

I have proof of DMII treatment going back to the 1980's.

I know Berta has covered some of the information about Nehmer cases with me (Thank you Berta), but I still have a few questions.

First - Must a vet have filed for and been denied for DMII before the Nehmer decision to claim an earlier effective date than the date of filing?

Second - Do I have to request the earlier effective date within one year of being given Service Connection for the DMII?

Third - Should I file a Request for Reconsideration of the Effective Date, or NOD the Decision asking for an Earlier Effective Date?

Forth - If I were to NOD the Effective Date would that be shot down immediatley if it has been more than one year since I was given Service Connection?

I am currently working on the wording for a request or NOD and need to know how to proceed if I am eligible.

Edited April 4, 2008 by donews

[Ron II]

Ok, Thank You all for the help on the Depression Claim, it went out certified with return receipt today.

Now on to the next claim in line.

I was given an effective date for my DMII the same as the date I filed the original claim (March 28, 2005).

At some point I saw a statement in one of the decisions that said I could possible get an earlier effective date if I can prove I was being treated for DMII before March 28, 2005.

I have proof of DMII treatment going back to the 1980's.

I know Berta has covered some of the information about Nehmer cases with me (Thank you Berta), but I still have a few questions.

First - Must a vet have filed for and been denied for DMII before the Nehmer decision to claim an earlier effective date than the date of filing?

Second - Do I have to request the earlier effective date within one year of being given Service Connection for the DMII?

Third - Should I file a Request for Reconsideration of the Effective Date, or NOD the Decision asking for an Earlier Effective Date?

Forth - If I were to NOD the Effective Date would that be shot down immediatley if it has been more than one year since I was given Service Connection?

I am currently working on the wording for a request or NOD and need to know how to proceed if I am eligible.

Hi Don,

I don't know the answers to your questions, but I am bumping your post to the top.

Ron

[Ricky]

Ok, Thank You all for the help on the Depression Claim, it went out certified with return receipt today.

Now on to the next claim in line.

I was given an effective date for my DMII the same as the date I filed the original claim (March 28, 2005).

At some point I saw a statement in one of the decisions that said I could possible get an earlier effective date if I can prove I was being treated for DMII before March 28, 2005.

I have proof of DMII treatment going back to the 1980's.

I know Berta has covered some of the information about Nehmer cases with me (Thank you Berta), but I still have a few questions.

First - Must a vet have filed for and been denied for DMII before the Nehmer decision to claim an earlier effective date than the date of filing?

Second - Do I have to request the earlier effective date within one year of being given Service Connection for the DMII?

Third - Should I file a Request for Reconsideration of the Effective Date, or NOD the Decision asking for an Earlier Effective Date?

Forth - If I were to NOD the Effective Date would that be shot down immediatley if it has been more than one year since I was given Service Connection?

I am currently working on the wording for a request or NOD and need to know how to proceed if I am eligible.

Don - I am not familiar with your DMII claim so I will speculate. If this ia an AO claim it is covered by Nehmer. However, Nehmer has three categories of veterans in which different rules apply. To be a category I veteran you must have filed and been denied prior to the 1985 court ruling. Category II veterans must have applied for a disability and been denied after 1985, but on or before the amendment to VA regs which added the disease causing the disability. Category III veterans are thoses who initially filied a claim on or AFTER a disease was added to the VA regs.

From this post you appear to be a category III veteran. Therefore, based upon the little I know about your DMII claim, it appears that you would be elgible for an EED of one year prior to the date the claim was received if you were receiving treatment for the disability at that time (one year prior to submitting a claim).

Since you have let your appeal time expire the I would reopen the claim using the medical evidence of "you were diagnosised and receiving treatment" one year prior to the effective date assigned to the claim by the VA and ask for the proper effective date be applied. I would include evidence of your "on the ground" in VN service and indicate that Nehmer applies to you as you are a Cat three veteran covered by Nehmer.

I guess that the alternate to my opinion above would be to file a CUE claim with the RO using the same evidence. However, I do not think CUE would apply since they notified you that they needed the evidence and you did not respond. Therefore, the evidence was never in front of the rater at the time of the decision.

A NOD at this point is useless since, as you stated, its been more that a year. Your appeal rights have expired.

I feel that if you follow my advice on the reopened claim procedure you will win the EED and get another years worth of retro. All is just my opinion and recommendation. May Berta will come along and provide some more insight.

[Berta]

Ricky- a superb post-

Any veteran who comes under Nehmer should carefully read the Nehmer Retro Stipulation and court order-

It is very time consuming to do this for individual claims- as each vet has their decisions, past denials etc available and can read Nehmer and then see how it applies to them specifically.

Even the VBM for NVLSP cannot possibly cover all examples of the various retros available under Nehmer-as each claim is unique.

As a matter of fact -I have been studying Nehmer a lot lately- for BWNVVA ---been studying it for years but I just saw something in it that I emailed NVLSP about as it would be important to BWVs as well as all other AO vets-and I need a clarification- and will post the info I get here at hadit-

here is the info every vet should read and then apply to thier own AO award to see if the VA has snooked them in retro- as they did to thousands of AO vets already:

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

[donews]

After reading that link you posted Berta, I am not sure If I am eligible for a year prior Effective Date or not.

All those words blend together when I try to read all that legal mumbo jumbo.

I am hoping that either under Nehmer or 5110 (g) that I can squeek out the eairlier effective date.

I have attached my request for anyone to review and comment on.

Request_for_Reconsideration_DMII_EED.pdf

Edited April 4, 2008 by donews

[Guest Vietnam Tanker]

The request looks good to me, I would say go for it, and good luck. I received an EED for my DMII, based on the nehmeyer decision, (not so hot on the spelling here)

[frosty69]

I read through Nehmer, but it is hard for me to concentrate, so just thought I would ask anyone, if I have a case. I received 20% for diabetes in Jan of 03, then I found out you could get a copy of your medical files from the va, so I received them, I was reading through them, there was a report from a doctor at the va, that said I had diet controlled diabetes from 1994 up until I got my 20% in 2003. diet controlled diabetes is suppose to be rated at 10%, so I filed a appeal for a EED back to 1994, but the va turned me down stating that being I filed for this in 2003, I couldn't get a EED, but like I told them, how could I file for diabetes between 1994 and 2003, since no one told me I had diabetes, so that is why I filed for a EED, so have appealed their ruling 2 times, and now is at the BVA, so would imagine it will get turned for the same reasoning, so I was just wondering if there is any ruling that I should know about that might help me. I also high glucose readings back to 1992.