tdiu Questions Reguarding Ihd Claims

[johnjjr]

Let me start by saying I don't want money to come into play in your answers. Through sound financial planning over the last 30 years, I have entered retirement debt free and well situated.

I filed an appeal 3/24/08 for an EED for DM II and CAD as secondary to DM II. That appeal is still pending at the VARO. On 3/16/10 I filed for TDIU. On 9/13/10 , I was awarded 100% schedular instead. Part of that award was 30% single vessel CAD as secondary to DM II to date from 3/16/10, in essance, giving me part of what I asked for in the appeal. The only reason I filed the appeal in the first place was for service connection for my heart. Should I amend the appeal, drop it, or just let it play out?

Secondly, how do you think this will affect my presumptive IHD claim under Nehmer. I was originally denied CAD in 12/06.

Any thoughts or suggestions appreciated.

Edited September 17, 2010 by johnjjr

[Berta]

I commend you for such good financial planning.

"how do you think this will affect my presumptive IHD claim under Nehmer. I was originally denied CAD in 12/06." If the CAD is ischemic in nature (and most CAD is) I am surprised they have not pulled your records by now to put them under the Nehmer provisions.That is -I assume they can see there was a past denied claim.

Some here have already received Nehmer letters. I didnt get any letter yet but was told my 2 claims ( IHD and a CUE) were with Nehmer Co-ordinator in Philadelphia.The IHD claim went 8 -16 I think and then they pulled the CUE claim to go there too.

NVLSP in the 2010 edition of the VBM is asking any Nehmer vets/widows/widowers to contact them

and also at their web site via email addy there:

http://www.nvlsp.org/Information/ArticleLibrary/AgentOrange/AO-RevisedAORelatedDiseases0610.htm

In part:”If you are a Vietnam veteran who suffers (or a survivor of a veteran who died) from one of the three diseases and you did previously file a VA disability or death compensation claim for the disease: We advise you to take two steps:

(1) Immediately file with the VA another claim for service-connected disability compensation (or DIC) for the disease. This will help protect you from the possibility that the VA will interpret your previous claim as a pension claim instead of a compensation claim, or as being for a disease other than one of the three new diseases;

(2) Send email us at agentorange@nvlsp.org and provide the the following information:

 your full name;

 your current address;

 your current phone number;

 if you are a surviving family member, the full name of the deceased veteran;

 your VA claims file number;

 the approximate year in which you first filed a disability or DIC claim for Ischemic  heart disease, Parkinson’s disease, or a B cell leukemia;

 identify which of the three diseases was the subject of the claim.

Why NVLSP Requests An Email If You Previously Filed A Disability Compensation or DIC Claim For One Of The Three Diseases:

NVLSP requests this email to help us protect your right to the proper amount of retroactive benefits if the VA grants your claim. As a result of the court order NVLSP obtained in its Agent Orange class action, the VA will be required in the future to go through its records and identify all Vietnam veterans and survivors of Vietnam veterans who filed a compensation claim in the past for one of the three diseases. Then, the VA will redecide each of these prior claims under its new rules. If the claim is granted, the VA will generally be required to pay you benefits retroactive to the date the VA received your first disability compensation or DIC claim for the disease.

NVLSP wants to make sure that the VA identifies your case as one it needs to review under the court order NVLSP obtained in its Agent Orange class action. NVLSP will compare the list that we ultimately get from the VA with the emails we receive to ensure that the VA reviews the case of every Vietnam veteran or survivor it is required by law to review.”

[johnjjr]

Berta,

My IHD claim was filed by the VA 5/24/10. I have already notified NVLSP with all the info they requested and received conformation of receipt of same from them.

I have been told by the 800# that the claim is in development.

[john999]

I got 60% for CAD secondary to DMII in 2008. I was already at IU since 2001. Should I file another claim for IHD? It won't increase my rating. In Johnjrr's case if he got a separate rating for the IHD he might get the housebound. If he is still considered total plus at least 60% for IHD then he could get the SMC according to Bradley v Peake as I read it. I should have gotten the HB automatically according to Bradley because I was IU total for one disability and then got at least 60% for other disabilites.

[vietnam68]

If I filed for IHD in 2006, but c & p for type II diabetes in 2002 shows existence of coronary artery disease and triple bypass surgery, which would be the effective date for retro. Also, if I have coronary artery disease and have evidence of myocardial infarction from the coronary artery disease and have had triple bypass surgery and each condition has its own diagnostic code, will I be rated for all three conditions or only one.

Can't find out anything from VA. Their own cardiologist in VA Biloxi filled out their new diagnostic questionnaire. According to VA they have sent record to VA Montgomery for a medical opinion and then their opinion will go before a committee for another medical opinion. Sounds like a lot of delay to me. Why have so many new IHD claims been rated and so few Nehmer cases. I thought they should be first.

vietnam 68.

[Berta]

Were you ever rated as NSC with a percentage for IHD in any decision?

"If I filed for IHD in 2006, but c & p for type II diabetes in 2002 shows existence of coronary artery disease and triple bypass surgery, which would be the effective date for retro."

The effective dates for Retro are explained in our AO forum withn the Nehmer Training Guide.

Basically they are:

"The effective date for retroactive claims must be one of the following dates:

The later of the following:

The date VA received the claim, or a date prior to September 25, 1985, if the claim was pending or on appeal on September 25, 1985, or

The date the disability arose

The day following the date of the class member's separation from active service, if filed within one year from the date of separation."

I assume they awarded you for the DMII but did not grant the IHD in 2002?

If the IHD was listed as NSC with a percentage in the 2002 decision and denied for SC I would say this would be your EED (earliest effective date) under Nehmer COurt Order as the date the "disability arose" per your C & P exam.

It is difficlt however to determine how the VA is interpreting these new regulations.

This is why NVLSP wants to hear from any vet or widow who had a prior IHD,HCB,or Parkinsons claim denied in the past.

Their Agentorange email addy is in the AO forum.

You will get a generic response but become part of te data base they will be checking against the VA decisions.

[Berta]

This will make my point better- this is in email to me from Rick Spataro-attorney for NVLSP and Nehmer expert:

"As for your second question, if the VA should have coded IHD in a rating decision, the claim that resulted in the rating decision could be considered a claim for benefits for IHD under footnote 1 of the Final Stipulation and Order in Nehmer. It basically depends on the timing of the claim, rating decision, and evidence received while the claim was pending. It may also depend on the rules in the Manual M21-1 regarding coding that were in effect at the time of the claim. Typically, though, the following example would be accurate: A veteran filed a claim for SC for a low back disability on May 1, 1990. The VA obtained medical evidence showing a diagnosis of IHD in the development of that claim. The VA issued a rating decision on April 1, 1991, but does not code IHD (list IHD as “NSC” on the code sheet of the rating decision). Under footnote 1, since the condition should have been coded in the April 1, 1991 decision, the May 1, 1990 claim should be considered a claim for SC for IHD under Nehmer.

I recently made the argument / explained the application of Footnote 1 in a case at the CAVC (docket # 08-1840): etc "

Footnote 1 is a good read and is included in the AO Nehmer info and VA training guide in our AO forum here.