Nehmer Class Retro Pay For Ao/ihd Effective Date

[NSA-Saigon-ET]

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

[Berta]

Donald- yes- if that Footnote helps your EED by all means use it as evidence.

I sent them page 15 of the NVLSP pdf with link to whole thing (which they were trained in) so they know I got it from the main source for Nehmer- NVLSP.

Page 15 states: "A prior denial based on lack of diagnosis rather than lack of nexus falls within the scope of the stipulation's requirement for readjudication."

Would that help you?

Say you had private IHD diagnosis and yet had claim on another basis-let's say for PTSD.

Say VA awarded the PTSD but failed to list or rate the IHD as NSC at that time, knowing by the clinical record that you had IHD.

One could assume that the lack of diagnosis in essense caused the IHD to be deemed 'denied' even though it wasnt formally claimed and even though this was part of an award letter.

I am not saying this will work, it is just something to consider because as much as VA manipulates the regs- we can attempt to do that too.

Or would this help you or someone here:

I raised this issue one first page of my 4138:

Paragraph 46.02 M21-1MR 1985 under (a) states:

"Compensation Ratings. All disabilities claimed will be given consideration as to service connection and be coded as a disability rating on VA form 21-6796."

This would regard all disabilities ever claimed.Is it possible you had claimed IHD in the past in an older claim? or even just claimed heart problems or something similiar to that?

The last rating decision I received in 1998 (never received one for my Feb 2010 award)

that awarded DIC for 1151 ischemic heart disease and cerebral ischemia didnt contain any IHD rating at all.

So it pays to check out any old correspondence you might have had with VA.

Edited December 17, 2010 by Berta

[NSA-Saigon-ET]

Hi Berta,

Thanks for the response and yes I believe this will help many vets.

I do believe that the footnote 1 can be a boon to my case and others if the examiners don't take the liberal approach, which is the whole intent of Nehmer to correct some of the denials for these three conditions.

This will have to be accomplished thru appeal of some kind. I can see the spirit of intent for the remedy, but of course, that is for my best interest. However, if my reasoning is straight forward, then perhaps others can see it too!

My C-file does contain medical evidence of IHD. That evidence does go back aways, but can only help me under the Nehmer rules as far back as 2003.

My past attempts to be awarded any disabilities start from 1994 and then 2003, then 2007 and 2008.

The latest one in 1994 cannot help me as it predates my IHD condition.

So given the key element for this is

first, to come under Nehmer

and

second, to have other older claims filed, with decisions, that are older than the original Nehmer claim

and

third, have medical evidence of treatment for IHD.

My first AO/IHD claim was in 2008 and in the 2003 claim date is when I tried to reopen my PTSD claim.

By that time I had been diagnosed by a private Dr. for IHD (in 1994) and had continous treatment since then, first thru BC/BS, then thru VAMC in Nh and then VAMC Fla. The VA had requested my medical records from NH and Fla and they show treatment for IHD. They ignored my IHD as it was not claimed by me or a Agent Orange ratable issue back then.

So now under Nehmer, I am going to get a review of my old IHD claim from 2008, they will see that the condition was DX way back to the 2003 claim.

The Nehmer rules say that my effective date is from the first claim date of 2008 or

when the VA first learned of my disease or when they came across it and should have coded it for development from directions of the m21 manual. So here is where the various opinions can cause varying effective dates. The class counsel recognizes this and they inserted footnote 1 into the training manual.

So footnote 1 deals with the spirit of the remedy for benefits denied. It is saying that a broad view or pro vet view of the regulation for an later effective date, may be from the first date that the VA could know of the dx for a now covered disease. It doesn't matter if it was coded for rating or not at that time, but it now is qualified under Nehmer to be rated back to that date of discovery.

That is the scenario which could happen and if not, then it would be the basis for my argument for appeal.

Another interesting thing about this is that the footnote 1 is a request for an amendment to the existing regulation dealing with definition of effective date. The VA and NVLSP is aware that the regulation is not specific enough for correct interpretation by the average examiner. This is also very evident by our little thread here at Hadit. Many inputs with varying opinions and all having some merit.

I wonder if any new work is being done to formally clarify this issue?

-donald

Edited December 18, 2010 by NSA-Saigon-ET

[Berta]

"in the 2003 claim date is when I tried to reopen my PTSD claim."

Is the IHD listed in the rating decision as NSC?

If it could have been rated as CAD or perhaps another way (but meaning same thing)but it they listed it, coded it and gave a NSC % -this could be a potential EED for you.

My claim reveals my husband had IHD back to 1988 then to his death- in the clinical VA record but since it was misdiagnosed it was never coded or listed in any rating sheet.

Maybe my decision will offer something to help you on the EED-

then again maybe not as maybe they wont go back that far.

I feel you and every AO vet has a right to obtain the most favorable EED you can get.

And I feel this is where any VA errors will occur in deciding these claims.

[NSA-Saigon-ET]

Hi Folks,

I have some updates to my AO/IHD claim which may be of interest to some. I am filing out of the Houston, Tx VARO.

I called the 800 number today and was informed that my AO/IHD claim was sent to WACO VARO on the 28th Jan. to be decided there.

This they said has put it into the decision phase.

While I have been patiently waiting, I contacted the lawyers at the NVLSP and submitted some info to them. This has been discussed previously on this thread for a possible EED which predates my nehmer claim.

The attorneys there are calling this situation a "footnote1 claim".

I have seen at least one claim being resolved in the veterans favor using the footnote1 as a basis. This was seen on a different forum called the VBN (veterans benefit network).

The NVLSP told me to wait for the decision and then submit it to them. They will make sure that the VA did a fair job.

With all the problems I hear at WACO you can be sure I will submit the decision to NVLSP.

p.s.

I first filed at Houston in 2008 and was denied in 2009. Refiled in April 2010. This is for AO/IHD.

Veterans Benefits Network

Veterans Benefits Network

[Berta]

This is very interesting info-

when I first read the Nehmer Trainng Guide I saw Footnote 1 as being probative to my claim.I referenced the footnote in the claim and sent them a copy of the excerpt.

I discussed ,a few months ago, this Footnote with Nehmer lawyer- it can be probative to a proper adjudication.

Footnote One (1) is in the Nehmer Trainng Guide here for anyone else who it might apply to.

Your claim sounds good and like it is getting close to resolve.

[BigKat1951]

I thank you all for your input.

I will let you know once I receive my claim back from the VA as to what they award.

At this point it is still a waiting game.

-donald