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Nehmer Class Retro Pay For Ao/ihd Effective Date


NSA-Saigon-ET
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Question

Hi all,

Was rereading the Nehmer Class action concerning my AO/IHD original claim.

I am a little confused how the law reads for retro payment dates.

Here is the short background summary.

Service including in-country Vietnam from 1967-1974

First felt Angina pain in 1994 and became a patient of a heart specialist in Cambridge, Ma.

After exhaustive testing was placed on medication and have been every since. (IHD diagnosis of some type, CAD,etc..)

Veteran lost private medical coverage and requested care under VA since 1997, first as a 0% SC and later on at 20% SC.

Archived VAMC records should have the IHD condition listed. I have not requested the older archived records, but did retrieve the newer records for another issue some time ago. They also list the IHD condition. These go back to 2001-2002.

Ok, so the VA has records that confirm this disability all the way back to 1997 and I can get the records from private doctor pretty easily

that take it back to 1994.

The veteran first filed for IHD disability in 2008, which was denied.

So the veteran comes under Nehmer.

The veteran then filed again in spring of 2010 for AO/IHD.

How far back will the Nehmer class take the compensation by law?

Please state the actual sentence for this.

Thanks!

donald

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Dear Berta:

Thank you and all for this site; I have often looked at your postings, but have been terrified to post because of my fear of the VA and all things VA.  My husband is a Vietnam Veteran who was stationed in Danang.  He also was sationed at Fort Leonard Wood Basic Training Camp and developed a very serious lung condition/injury which the VA has denied since 2007.  At that time, a veteran's service officer had us sign up for respiratory condition due to herbicide exposure because the military did not initially give us his medical records, and he did serve in Vietnam and was exposed to AO.

There was a epidemic at Fort Leonard Wood at the timeframe he was there during 1970-1971.  It was a meninococcal meningitis (sp unknown) epidemic and though he requested help from all to find out what he had, they have never acknowledged the epidemic.  His records show ARD LD:yes.  His treating doctor back then has written he had a much more serious condition and was hospitalized the records show twice.  He received batches of vaccines and all kinds of vaccines for everything while he was very sick. He stated there were hundreds of soldiers in the hospital.   His records show admit date and no discharge date on las admisssion.  The captain who admitted him states in the records, there are many missing records and no discharge date. 

Lab testing results cover over the results.  Originally we were told there were no in-patient records after years of requesting records, only to find out they used x-ray against him in denails.  In his original exam in 2007, the VA put in his records no need to exam, though he suffered with respiratory problems. Todate, he has never been give a CT scan and his records showed he had a lung nodule which eventually gew and caused him cancer.  He is service connected currently for about 9 months for lung cancer, not they want to take away.  

After some time in 2009, he aslo developed CAD, along with lung disease.  It was discovered during the Nehmer investigation about his denied heart condtiion and awarded under Nehmer.  They reduced his disability rating to 0; now to 10% from 60% originally.  He has not materailly improved and had to retire on disability due to lung and heart problems, but also he was a mechanic and had other physical problems as well.  The reason of VA's denial originally was that his lung injury was acute.  On some of the evidence he was awarded for iscemic heart disease claim under Nehmer, the VA states they have not addressed his claim for respiratory yet because they are under appeal.  In the same records bronchiectasis was also shown on CT scan which is a permanent and chronic disease.  Should that have also been included as Nehmer claim (original claim denied in 2007 was for respiratory condition per VSO due to herbicide exposure.  He developed cancer and had surgery on right lung in 2017.  Now they are trying to reduce even though his left lung which they are not sure if it is active or not because it is in location where they cannot biopsy.  

One does get tired of the fight.  My husband never received any exam for heart or lungs before the VA's denials of his claims.  I found on the internet that there was a Congressional Report for the epidemic just this week for 1970-1971.  We have hearing next week with about `0 days notice and no rep help due to this location does not have any right now, although we think we will try to defend ourselves we guess.  His pulmonary function test after the resection of right lung is 54% for DCLO, ct scan shows the left lung nodules, Thorasic doctor wrote he cannot return to job as mechanic, but he has been retired for other heart/lung related issues as descrined above.  

Can you give any advice to a very tired wife who is exhaused from this fight and has volunteered for our military heroes for years?  Sorry if this is put in the wrong place, I am not at all technical savvy.  Your help, as well as, the help of others who might have info on Fort Leonard Wood or the Nehmer questions, would be sincerely apprecoated.

Edited by doodlebug
Did not feel I adequately explained, Im really sorry
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“As a result of the court order NVLSP obtained in its Agent Orange class action, Nehmer v. U.S. Department of Veterans Affairs, the VA is required to pay you, if your claim is successful, benefits retroactive to the date the VA first received your claim. “

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

"The veteran first filed for IHD disability in 2008, which was denied.

So the veteran comes under Nehmer."

The date of the 2008 claim is the retro date.

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Hi Berta,

Thanks for your input.

I have copied this small section from the training guide and pasted it here:

Effective Date

The effective date of claims for service connection is the later of the date VA received the claim on which the prior denial was based or the date the disability arose.

For purposes of Nehmer IHD, PD, or HCL claims, the date a disability arose is the date VA had sufficient evidence or information to identify the existence of such a disease or, the evidence or information available was sufficient to "code" IHD, PD, or HCL as a disability pursuant to guidance regarding coding contained in the Veterans Benefits Adjudication Manual M21-1MR, and/or prior versions of such manual.

NOTE: 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114 do not apply to Nehmer claims.

This says that the original date I filed the claim is the date they could use for the retro award

or

it also says that they can use a date when the condition first became a disabling condition

whichever is later

My VA records show treatment for Arteriosclerosis before my original claim.

Does that change the effective retro date?

-donald

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I agree with Berta somewhat BUT if the VA has it in your records that they knew you had CAD/IHD they could, might maybe will consider another earlier date! keep your fingers and toes crossed and let us know.

This would be handled under Nehmer and would be called an inferred claim BUT again there is a lot of grey areas there!!

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I agree with Berta somewhat BUT if the VA has it in your records that they knew you had CAD/IHD they could, might maybe will consider another earlier date! keep your fingers and toes crossed and let us know.

This would be handled under Nehmer and would be called an inferred claim BUT again there is a lot of grey areas there!![

Simply mentioning or being diagnosed with a condition isn't enough; there must be a positive assertion that it is due to service before it is an inferred claim.

I noticed NSA-Saigon-ET is 20% SC. Now if when he filed a formal claim for SC for the condition that he got 20% for and while undergoing a C&P exam happens to mention to the doc that he thinks that his heart condition is also due to service, if the doc notes this assertion by NSA-Saigon-ET in his report, the decision maker at the RO is required to put the heart condition at issue just like he does the claimed condition. 

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Simply mentioning or being diagnosed with a condition isn't enough; there must be a positive assertion that it is due to service before it is an inferred claim.

I noticed NSA-Saigon-ET is 20% SC. Now if when he filed a formal claim for SC for the condition that he got 20% for and while undergoing a C&P exam happens to mention to the doc that he thinks that his heart condition is also due to service, if the doc notes this assertion by NSA-Saigon-ET in his report, the decision maker at the RO is required to put the heart condition at issue just like he does the claimed condition.

AHHHH! I see what you mean; that would be similar for a case of "duty to assist". The regulation says that the VA must help develop an issue it sees for a benefit to the vet even if the vet has not yet claimed the issue at that time. So, supposedly if the examiner finds a new issue while processing the existing issue, it is supposed to contact the claimant and help them on the new isue as well.

Not the same thing I am asking.

So getting back to the original question I posted :

The training guide says the retro effective date will be from the date of the original claim filed

OR

the date the disability arose.

It is that second part I do not understand.

It defines this as

"For purposes of Nehmer IHD, PD, or HCL claims, the date a disability arose is the date VA had sufficient evidence or information to identify the existence of such a disease "

In my case, the VAMC records show treatment for IHD from before I filed the original claim. These records go back to when I first transferred my health care from private practice to the VA system in 1997. This means to me that the records show the existence of the disease earlier than when I filed the claim.

So my question is this: Can my claim effective date be pushed back to 1997? The evidence I mentioned seems to comply with the training guide statements which says it should be.

-donald

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