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

[N4XV]

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

The later is the prior denial not the date the disability arose.

There are a lot of people upset that their claims will not retro back to when their disability arose and they didn't file a claim for it at that time.

 You are beating a dead horse right now.

Like Berta said if you do not agree with the EED then appeal it.

[NSA-Saigon-ET]

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

[Donna]

It is the date you became a claimant not the date you became a patient. It is the date you filed a claim not the DX date. We all wish it was otherwise, but it is what it is. If you filed a claim for anything in the past and in that claim there is evidence of IHD, they could inferr the date of filing that claim as the EED of the IHD claim.

[stillhere]

I have in the past had the RO grant a claim based on the information from a QTC exam that I did not apply for. This is why I feel there is the possibility for the EED to be used.

When I first applied in 2003 it was for DM2 the exam showed that I not only had DM2 but also PN and ED. Now even though I was not applying for those conditions, because I was DXed with them at the C&P I was awarded them! Made for a nice surprise. Instead of being just 10% for DM2 I was given 40% for DM2/PN lower/and SMC-K.

Ironically I did not get IHD because their test found none!

My point is I feel it is just like playing poker with th friends. The cards speak for themselves. In this case the vets medical records speak for themselves.

So I feel that if you have a DX for IHD in your medical files there is a possibility that the date of that exam could be considered for the vets date. Now in the case of a private doctor's exam this will not work unless the VA had the information while doing another part of the claim.

of course I could be totally wrong but I feel this a scenario that could happen!

[N4XV]

stillhere, I see where you are coming from. In your case it was dx'd or noted in your C&P report and gave the VA  sufficient evidence or information to infer additional disabilities.

The OP stated: "Veteran lost private medical coverage and requested care under VA since 1997, first as a 0% SC and later on at 20% SC" and "The veteran first filed for IHD disability in 2008, which was denied.

So the veteran comes under Nehmer."

To me this means at some point prior to his original claim for CAD/IHD in 2008 he had another claim that granted him a 20% SC rating. Now if at some point during the processing of his prior claim granting the 20% rating the issue of CAD/IHD was brought up he might be entitled to an earlier effective date back to his first claim. The OP states nothing to this effect. 

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"

In the OP's case it is reasonable to assume at this point in time that the earliest the VA had sufficient evidence or information to identify the existence of his CAD/IHD was his 2008 claim. If it wasn't put at issue in his 20% claim a rating specialist is not required to put it at issue if at that time no nexus exists. The nexus being an assertion that the CAD.IHD is thought to be SC'd by either the vet or an examiner and it being recorded in the vet's records.

Bare in mind that even though the vet was getting VA medical treatment since 1997 for his CAD/IHD and his VA medical records show this, without that assertion prior to his 2008 claim all that earlier VA medical treatment information it moot as far as getting retro prior to the 2008 claim. 

There are the facts, anything else is smoke and mirrors. 

[NSA-Saigon-ET]

stillhere, I see where you are coming from. In your case it was dx'd or noted in your C&P report and gave the VA sufficient evidence or information to infer additional disabilities.

The OP stated: "Veteran lost private medical coverage and requested care under VA since 1997, first as a 0% SC and later on at 20% SC" and "The veteran first filed for IHD disability in 2008, which was denied.

So the veteran comes under Nehmer."

To me this means at some point prior to his original claim for CAD/IHD in 2008 he had another claim that granted him a 20% SC rating. Now if at some point during the processing of his prior claim granting the 20% rating the issue of CAD/IHD was brought up he might be entitled to an earlier effective date back to his first claim. The OP states nothing to this effect.

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"

In the OP's case it is reasonable to assume at this point in time that the earliest the VA had sufficient evidence or information to identify the existence of his CAD/IHD was his 2008 claim. If it wasn't put at issue in his 20% claim a rating specialist is not required to put it at issue if at that time no nexus exists. The nexus being an assertion that the CAD.IHD is thought to be SC'd by either the vet or an examiner and it being recorded in the vet's records.

Bare in mind that even though the vet was getting VA medical treatment since 1997 for his CAD/IHD and his VA medical records show this, without that assertion prior to his 2008 claim all that earlier VA medical treatment information it moot as far as getting retro prior to the 2008 claim.

There are the facts, anything else is smoke and mirrors.

Hi All,

Actually Berta posted the answer I am seeking. It is found in the training guide contents labeled:

Appendix 18 – Footnote 1: Need for Amendment to 38 C.F.R. § 3.816 Regarding Nehmer Claims ...............................................................................................................147

This footnote actually deals with my issue.

I can only wait to see what the VA does in readjudication of my 2008 original claim.

There is one pro vet interpretation that describes my situation, and could result in a earlier effective date than 2008.

-donald

Edited December 17, 2010 by NSA-Saigon-ET