Nehmer Fast Letter Of

[Berta]

This Fast letter re-defines how these claims should be handled- it is a stronger statement than the more recent Fast letters on the new AO presumptives and shoul;d be considered in the context of the proposed regs on the 3 new AO disabilities.

Please note one page one of this letter to all VAROS

"ACCOUNTABILITY

Regional Offices must stricly comply with the instructions set forth in this letter and attachments.It is critical that NEHMER claims be handled expeditiously and correctly. The processing of Nehmer claims requires VA to operate under court-imposed deadlines. Failure to comply with instructions could result in court-ordered sanctions against VA and/or VA officials."

I gave the VA plenty of time since my April 2009 AO death award to comply with Nehmer but they failed to.

After contacting the OGC in DC a few weeks ago-from that point on my claim was handled expeditiously. I wanted a decision by Christmas as to the Nehmer court order.A decision was made on Dec 24th 2009 and the monetary award is due to be sent on Jan 4th 2010.The lawyer mentioned in this Fast Letter on page 5 of 14 is the OGC lawyer who took immediate action on my case.

I anticipate my award will be the wrong amount-only because the VA has never in over 10 years sent me a proper monetary award right off the bat. In spite of their sophisticated computers they still manage to add wrong.

But maybe I will be surprised on that.

Nehmer costs the VA lots of $$$$$. In many cases even if a Nehmer vet dies and then his widow or her widower dies- the Nehmer money that was due still has to be paid to the next of kin or estate of the veteran.

There is absolutely no incentive for the VA to attempt to withhold Nehmer Retroactive payments but they have done this and will continue to until- all vet reps and all Nehmer class action members take a stand on getting their proper retro awards.

Nehmer claims are handled in a special way -that is explained in this fast letter attached.

If they arent handled this way- the AO vet or survivor has to take other action as the VARO has committed CUE and also defiance of the mandate of the Nehmer COurt Order.I will certainly explain how that goes if and when we get vets or widows who are owed Nehmer money that the RO failed to pay.We had a few here already at hadit.

If the VA had properly handled my claim and sent it to the PRC in May of 2009 my case would be resolved by now. But I am grateful they again buggered up my claim as I learned of the internal VA AO claims procedure- and would not have known how it worked if they had given me the proper AO award at that time.

The attachment is 14 pages long.(sorry I posted it twice and dont know how to remove one of them)

VA_Nehmer_Feb_2009_Fast_Letter.doc

Edited December 29, 2009 by jbasser

[jbasser]

Berta, I got rid of one attachment for you.

J

[THOMAS89031]

berta, i'm having trouble finding replies to my questions...must be the thick headed jarhead in me...

but was wondering if you know how the va determines retroactive date to pay?

my service in vietnam was from may of 1970 to dec of 1970. I got out in sept of 1971.

started having "documented" ischemic heart problems in 1994.

any help anyone can provide would be appreciated you can emai me if you want: (pm member for email address)

[N4XV]

THOMAS     

This is a copy and paste from "New Agent Orange Presumptive Conditions

Q&As/Scripts"

Q. Will I receive retroactive benefits based on a grant of presumptive

service connection due to service in Vietnam if my claim was

previously denied?

A. Generally, retroactive benefits cannot be paid prior to the date of the

new regulations. However, based on a federal court decision, [in the case

of Nehmer v. U.S. Veterans' Admin. C.A. No. C-86-6160 (TEH) (N.D.

Cal.)], Vietnam Veterans will be eligible for retroactive awards of benefits

for B cell leukemias (such as hairy cell leukemia), Parkinson’s disease,

and ischemic heart disease if they have applied for and have been denied

service connection for these condition(s) before VA regulations go into

effect and if the Veteran was diagnosed with the condition at the time the

claim was filed.

If you had a claim in for ischemic heart disease back when you were first Dx'd with it and it was denied by the VA. Then your retro should go back to that date of original claim, if the VA honors Nehmer. But you can bet the VA legal minds are working day and night to get around Nehmer every which way they can. So we really just have to wait until the new regs are published to see how it all pans out.  If you just recently filed your claim then the date of that claim will be your effective date.

[vperl]

THOMAS

This is a copy and paste from "New Agent Orange Presumptive Conditions

Q&As/Scripts"

If you just recently filed your claim then the date of that claim will be your effective date.

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

effective date for retro is: ?

I filed for AO IHD 26sept09 on 2Feb09 had C&P

today got ROI and looked at the C&P exam notes....

looks very good, just a question what the rating will be, as I read the notes

looks like more than 80%.... with the ICD I have I was told by some that

the rating will be 100% for sure..... time will tell

Now I wait for the decision.

question what is my effective Retro date ?

[Berta]

I missed this question from Thomas and the retro info was correctly posted by others-

Thomas -I see you have 100% now- does the IHD rating put you into eligibility for SMC?

I assume ( but really shouldn't assume anything yet) that IHD will be rated just like atherosclerotic heart disease is-in the Schedule of Ratings here at hadit.

If your 100% SC is solely for one condition only and then your IHD rating is at least 60% and completely independent disability from the 100% disablity-they would award you the SMC "S" award.

[N4XV]

vperl

Your date of claim (26sept09) should be your effective date for retro.

as I read the notes

looks like more than 80%....

I do not understand what the 80% you refer to in the above statement actually means. 80% of what?

METs

The criteria for evaluating heart conditions incorporates objective measurements of the level of physical activity, expressed in METs (metabolic equivalents), at which cardiac symptoms develop.

METs are measured by means of a treadmill exercise test, which is the most widely used test for diagnosing coronary artery disease and for assessing the ability of the coronary circulation to deliver oxygen according to the metabolic needs of the myocardium 

Evaluation criteria

• A 100-percent evaluation is warranted if a workload of three METs or less produces dyspnea, fatigue, angina, dizziness, or syncope. A workload of three METs represents such activities as level walking, driving, and very light calisthenics.  

 

• A 60-percent evaluation is warranted if a workload of greater than three METs but not greater than five METs results in cardiac symptoms. Activities that fall into this range include walking two and a half miles per hour, social dancing, light carpentry, etc.  

 

• A 30-percent evaluation is warranted if a workload of greater than five METs but not greater than seven METs produces symptoms. Activities that fall into this range include slow stair climbing, gardening, shoveling light earth, skating, bicycling at a speed of nine to ten miles per hour, carpentry, and swimming.  

 

• A 10-percent evaluation is included for some conditions, which is warranted if symptoms develop at a workload of greater than 7 METs but not greater than 10 METs. Activities that fall into this range include jogging, playing basketball, digging ditches, and sawing hardwood. When symptoms develop only during such activities, there may be some impairment of earning capacity, but it is likely to be slight. The alternative of the need for continuous medication warrants a 10-percent evaluation for some conditions

Alternatives to the METs

 Administering a treadmill exercise test may not be feasible in some instances, however, because of a medical contraindication, such as unstable angina with pain at rest, advanced atrioventricular block, or uncontrolled hypertension. In those instances, objective alternative evaluation criteria were provided, such as cardiac hypertrophy or dilatation, decreased left ventricular ejection fraction, and congestive heart failure, for use in those cases. When a treadmill test cannot be done for medical reasons, the examiner's estimation of the level of activity, expressed in METs and supported by examples of specific activities, such as slow stair climbing or shoveling snow that results in dyspnea, fatigue, angina, dizziness, or syncope, is acceptable. 

 The other objective criteria as alternatives to the METs are:

 

• A 100-percent evaluation is warranted for a left ventricular ejection fraction of less than 30 percent or chronic congestive heart failure.

 

• A 60-percent evaluation is warranted for a left ventricular ejection fraction of 30 to 50 percent, or more than one episode of acute congestive heart failure in the past year.

 

• A 30-percent evaluation is warranted for evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray.  

 

• A 10-percent evaluation is included for some conditions, and a requirement for continuous medication