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

[Chuck75]

The Nehmer Review process at Bay Pines was "smart" enough to catch and apply footnote 1 in my case earlier this year. I had originally applied for presumptive SC for DMII only, on (dubious) advice from a state VSO to keep the initial claim simple. There was conclusive evidence of CAD and other conditions/symptoms related to IHD. Before IHD was presumptive, the VA denied IHD and all the later heart related claims. Then, the Nehmer review reversed the denials, and went back to the original DMII claim date for retro, etc.

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.

Edited September 21, 2011 by Chuck75

[Berta]

Chuck -you are an excellent example of how Footnote One works.

My IHD claim rests on this part in Rick's email:

"since the condition should have been coded"

and I am glad I also filed a CUE claim on that lack of coding.

I also had a prior BVA denial on a claim for PTSD causing heart disease.That too put me under Nehmer.

I didnt pursue the denial because VA in the meantime had awarded 1151 DIC at the RO level.

In the BVA decision the BVA clearly stated that,however, if I ever succeeded in proving direct SC death, the offset of my tort claim would be refunded.

When I DID prove direct SC death last year,it took them almost a year to refund the offset.I sent the actual offset regs, the prohibition regs (that they tried to use against me because they cant read regs properly),the settlement papers with the offset amount and also I sent them the BVA decision-highlighting what the BVA had stated as to the offset.And I got the OGC to intervene and then I got my money right away.

I gripe too much about that-sorry-it still makes me angry what they try to pull on us--

My point here is that we need to save EVERYTHING from the VA.

My 1151 DIC award (1998)clearly stated VA malpractice caused Rod's death due to heart disease and CVA.

They rated the CVA (but rated it wrong (Cued that) and Never mentioned the disability that directly caused his death- the IHD.

They didnt even rate anything ( not even his DMII) in my last award. Which I nodded within days of getting it.

DAV told me they sh-t canned my stuff after I dropped them in 1997. If I had not kept those older decisions and read them carefully many times- I might not have realised I was a potential Nehmer widow because NVLSP told me the RO didnt even put me on their AO list.

You know Nehmer in and out Chuck and your posts ere regarding the nuances of IHD are very valuable to all AO vets.

What bothers me is the many vets who had IHD documented prior to their Diabetes diagnosis and so no comp for IHD even as secondary to DMII.

The new AO IHD regs give them a chance for successful re -open as long as the IHD was somehow coded or "should have been" on their past decisions. but I wonder how many AO vets have picked up the news on AO in the media and on the net over the last year- if they never got a formal Nehmer letter.