Any Nehmer Legal

[Berta]

If you have copy of the entire NVLSP Training letter under Nehmer - I am asking how you interpret pages 117,118,119 as to IHD in any past VA decision.

I have email from NVLSP lawyer I discussed this with but sent him email for another question.

My question is-

do you understand the Final Stipulation to indicate or strongly suggest that whether IHD was formally claimed or not-for SC in a past claim-

if the VA rated it as NSC (and possible gave a % on the rating sheet) than this would be a denied IHD claim (for retro purposes)

at least that is what I think it says-and what the NVLSP lawyer meant-

This regards Footnote 1 in the Stipulation as that references "ratings decisions voided by the Court's May 3 1989 Order ".

Any thoughts?

Edited November 8, 2010 by Berta

[Chuck75]

My take was that a claim previously denied did not have to specifically mention IHD. The RO's "instructions" may or may not fully implement the actual "regulation". The VA often leaves things out.

The denial wording may also have impact by denying a specific condition that is related to or part of "what is" IHD.

It did have to mention heart disease, and/or conditions (in the medical records) such as coronary artery occlusion, stints, revascularization, CABG, Heart Attack, etc.

All are mentioned in the what is definitions of IHD.

The logic is that evidence of heart damage (IHD) is confirmed or at the very least likely when certain "signs" are present, and that a Veteran in a claim is not required to use very specific terms.

(Although the VA RO's can be incredibly dense, and fail to make the proper connections.)

Of more concern to me personally is the relationship between dioxin, heart disease, and DMII.

When the two conditions are present, it shows evidence of several disorders not fully recognized by the VA.

Even worse, common treatments for one can involve drugs that aggravate the others.

The following document is pertinent to this situation.

http://www.atsdr.cdc.gov/substances/toxsubstance.asp?toxid=26

Polychlorinated Biphenyls (PCBs)

CAS ID #: 001336-36-3, 011097-69-1

Affected Organ Systems: Dermal (Skin), Developmental (effects during periods when organs are developing) , Endocrine (Glands and Hormones), Hepatic (Liver), Immunological (Immune System), Neurological (Nervous System)

Cancer Effects: Reasonably Anticipated to be Human Carcinogens

Chemical Classification: Dioxins, Furans, PCBs (contain phenyl rings of carbon atoms), Pesticides (chemicals used for killing pests, such as rodents, insects, or plants)

Summary: Polychlorinated biphenyls are mixtures of up to 209 individual chlorinated compounds (known as congeners). There are no known natural sources of PCBs. PCBs are either oily liquids or solids that are colorless to light yellow. Some PCBs can exist as a vapor in air. PCBs have no known smell or taste. Many commercial PCB mixtures are known in the U.S. by the trade name Aroclor.PCBs have been used as coolants and lubricants in transformers, capacitors, and other electrical equipment because they don't burn easily and are good insulators. The manufacture of PCBs was stopped in the U.S. in 1977 because of evidence they build up in the environment and can cause harmful health effects. Products made before 1977 that may contain PCBs include old fluorescent lighting fixtures and electrical devices containing PCB capacitors, and old microscope and hydraulic oils.

(End of document)

If you have copy of the entire NVLSP Training letter under Nehmer - I am asking how you interpret pages 117,118,119 as to IHD in any past VA decision.

I have email from NVLSP lawyer I discussed this with but sent him email for another question.

My question is-

do you understand the Final Stipulation to indicate or strongly suggest that whether IHD was formally claimed or not-for SC in a past claim-

if the VA rated it as NSC (and possible gave a % on the rating sheet) than this would be a denied IHD claim (for retro purposes)

at least that is what I think it says-and what the NVLSP lawyer meant-

This regards Footnote 1 in the Stipulation as that references "ratings decisions voided by the Court's May 3 1989 Order ".

Any thoughts?

[john999]

I was rated 0% for heart disease before I got rated 60%. With that 60% I got HB. I wonder if Nehmer might effect my HB rating and back date it? My rating was secondary to DMII due to AO. Is a 0% rating in any way similar to a denial?

[Berta]

I don't think so John-

BUT was the "0" rating correct?

Meaning they found no medical evidence at that time of any heart disease as ratable.

Or do you mean this- you get CAD now due to DMII but in fact it is IHD that is due to AO----and was at a ratable level prior to the DMII award?

I know vet with similiar situation- lost touch with him-he gets DMII but had heart attack prior to the DMII diagnosis so-if his CAD is IHD-then the new regs might help him a lot because he has a past denial for IHD that they coded as NSC.

I dont know how they rated it under NSC though.

The "Blue Sheets" the old time rating sheets that NSOs used to get- can be invaluable for AO claims.

Does the VA still attach these rating sheets to decisions?

I have had many decisions stemming from my 2009 award letter but NO rating sheets at all.I wonder if they still send them out to the claimant or if they go just to the POA.

I was thinking this AM- that Nehmer - particularly with the VA estimate that many IHD claims will be rated at 60% would put many vets into a SMC scenario (if they have 100% or TDIU now for an independent SC )which could possibly cause CUE under Bradley.

Then again -the VA - when adjudicating these IHD claims should definitely consider SMC right off the bat and then properly pay SMC as retro under Nehmer if warranted along with the SC for the AO IHD.

I think every AO IHD vet needs to really check their retro carefully against the historic rate charts when they get it.

[Berta]

Chuck said:

"My take was that a claim previously denied did not have to specifically mention IHD."

As long as IHD or a similiar term appeared on a rating sheet (such as cardiovascuar disease)- this could fall under Nehmer as I understand it.

VA actually did their job with my CUE claim.

It was set for transfer to BVA then suddenly sent to AO people in Philadelphia.

The word "Cardiovascular" appeared in the older decisions and the CUE claim so this is what probably prompted them to put it under the Nehmer claims.

When I realised that the CUE claim didnt specify the CAD as IHD I sent them VA medical records that state it was IHD.

Although most heart disease is ischemic, not all heart disease is.

[stillhere]

Berta, I agree and I will tell you why. After reading many decisions from BVA and other sources many times a vet will claim a condition like burning feet, or pain in chest. Now the VA will take these symptoms and send the vet to a CnP and have the doctor diagnose what is causing these conditions. The doctor would then come up with PN (for lower) or in the case of the chest pain angina or heart disease.

A vet not being a doctor does not have to specifically say the name of a disease to be awarded for it just the symptoms and then be DXed by a doctor.

I think what the pages 117-120 are addressing is this same fact and that it is on the VA and their doctors to supply the vet with a proper diagnosis and then deny or approve based on the medical evidence.

If a veteran complains to the VA about being in Vietnam and hearing about the agent orange junk and is feeling lousy. He should be examined and told all of his conditions that at the time were presumptive to AO and told to file. If the vet does and there is also the diagnose of IHD/CAD then that should be the date that Nehmer goes back to.

I certainly hope this is what you were asking and I am right! This would help many vets that have used VA in the past and did not file when they were Dx because a disease was not on the list at the time.

[Berta]

"I certainly hope this is what you were asking and I am right! This would help many vets that have used VA in the past and did not file when they were Dx because a disease was not on the list at the time."

Yes if the disease issue was raised in a past claim or in the rating decision and could be, to anyone with common sense , the same disability that is now presumptive.If that is what you mean.

Say a vet claims PTSD, PAD, and medical problems with "sugar" and his med recs reveal a diagnosis of DMII. Obviously this vet is claiming DMII.

The AO disability must be raised somehow in the claim.The vet does not need to say I think I ave so ahd so due to my exposure to AO -they just must either specifically state the AO disability somehow in the claim that was denied. OR the VA ,in fulfilling the part of M21-1MR (as within the pages we are referring to in the Training Letter)did acknowledge the disability and code it as NSC.

Vets who did not get a past denial for a new AO presumptive nor have it coded by VA as NSC in a past rating decision have no potential of retro as far as I can tell.

The entire NVLSP packet of info is well over 130 pages and I think somewhere in all that they made this same point.

But the VA is for the most part unable to connect the dots sometimes or to really determine the actual disability.

I heard back from NVLSP attorney (one of their Nehmer Experts)

This info might help someone with a AO claim and help with your point too:

My email to him:

"Rick .....If IHD was never claimed for comp (lets say in a past PTSD claim that awarded the PTSD ),but coded as NSC,in this prior decision generated after Sept 1989,resulting from the PTSD claim, would that claim's date possibly be the retro date for a new AO IHD claim?"

(coded meaning SC or NSC not Diagnostic code)

Reply:

"Hi Berta,

I hope you are doing well. In your example, the effective date would likely be the later of the following:

1.The date the VA received the PTSD claim; or

2.The date the evidence showed the veteran was diagnosed with IHD."

By "later" of the following he means the most favorable date they could give the veteran for the retro EED.

Edited November 8, 2010 by Berta