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  • Most Common VA Disabilities Claimed for Compensation:   

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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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Berta

Footnote One

Question

http://search.uscourts.cavc.gov/isysquery/f5a7478c-74d6-4fa9-98da-0c44a8998cec/1/doc/

This unusual case link was given to me by Rick Spataro,attorney for the veteran's surviving son as part of his response to a question I had over Footnote one of the Nehmer Stipulation last year and I think I might have posted this here before-as to Footnote One – a very important facet of the Nehmer Stipulation.The CAVC decision with Rick as the veteran's attorney , came a month after he discussed Footnote one with me and this info might help someone here with similar situation under the new AO presumptives.

“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): :” from Rick Spataro NVLSP

This is the US CAVC decision in part:

“On November 15, 2005, the Secretary mailed Mr. McManus a Statement of the

Case (SOC)

that continued to deny accrued benefits because there was no claim for

diabetes mellitus that had

either been denied or that was pending at the time of the veteran's death.

Mr. McManus filed a

timely Substantive Appeal, again asserting that his father had filed an

informal claim for diabetes

that remained pending and unadjudicated at the time of his death. He also

requested a Board

hearing. “

As the Secretary notes, under the applicable M-21 provisions, if Mr.

McManus's father's

diabetes was noted in his medical record, then it should have been coded

in a rating decision. See

M-21 ¶ 46.02 (Mar. 28, 1985) (stating that any additional disabilities

noted will be coded, except

acutetransitoryconditions, noncompensable residuals of venereal disease,

disabilities noted onlyon

an induction examination, or recorded by history only, and disabilities

found to have not been

incurred in the line of duty). (****My note here to remind this is the essence Footnote One)

It is undisputed that a diagnosis of

uncontrolled diabetes mellitus was

noted on Mr. McManus's father's medical record and that this record was

received by the Secretary

in 1985. And, according to VA Fast Letters 06-16 and 09-09, this evidence

is sufficient to

demonstrate the existence of a claim. Therefore, under the undisputed facts,

a claim for diabetes was

pending at the time of Mr. McManus's father's death. See id. Reversal of

the Board's determination

to the contrary is warranted. See Gutierrez v. Principi, 19 Vet.App. 1, 10 (

2004) (reversal is the

appropriate remedy when the only permissible view of the evidence is

contrary to the Board's

decision). “

and

“Under the applicable

provisions of the M-21 and VA fast letters, Mr. McManus demonstrates the

existence of a claim

sufficient to qualify under the Nehmer provisions if he can show that the

diagnosis of diabetes that

his father submitted in September 1985 should have been coded in the

December 1985 rating

decision. See Appellee's Supplemental Memorandum, Exhibit B (M-21 ¶ 46.02 ( “

Accordingly, the June 3, 2009, decision of the Board is SET ASIDE , the

specific finding that

Mr. McManus's father did not have a claim for diabetes pending at the time

of the father's death is

REVERSED,

and thematters are REMANDEDfor further adjudication consistent with this opinion."

DATED: September 7, 2010

Copies to:

Richard V. Spataro, Jr., Esq.

VA General Counsel (027)

What is interesting in this case is this part:

“As the Secretary notes, under the applicable M-21 provisions, if Mr.

McManus's father's

diabetes was noted in his medical record, then it should have been coded

in a rating decision.”

My CUE is based on this same premise =1151 awarded for,in part IHD as cause of death by VA,

yet never coded or rated at all in any rating decision .

I believe some Vietnam veterans might definitely well have non coded disabilities that are now AO presumptives

yet will not receive any potential AO comp unless they find these non coded disabilities in the med recs and they must definitely file a AO claim.A veteran could well have IHD throughout their VA med recs with treatment of it but if the VA never coded it as part of a claim -on any rating sheet-the VA is NOT going to automatically pull those claims for Nehmer if Nehmer applies to them because they do not see IHD on the older rating sheet coded as NSC -yet the veteran in fact should have been coded for it-as NSC then -and now it would become SC if vet served in Vietnam.

I believe the VA relied heavily on rating sheets with codes for IHD in past denials when they determined who was on their Nehmer list.As some here have found out- they weren't on the ROs list yet fell under Nehmer when they contacted NVLSP.

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"I believe some Vietnam veterans might definitely well have non coded disabilities that are now AO presumptives"

Or, in the case of IHD, coded as some other problem that is included in the definition of IHD, or related to it.

Looking at my own difficulties in getting the VA to properly look at my heart disease, I ran into several problems.

LVEF was and is such that METS testing is not advisable, or required.

My records have "the golden standard" test results. The VARO kept trying to schedule treadmill tests anyway. The last one was with a local contracted Cardiologist.

Instead of consenting to a treadmill or stress test, I gave him a copy of pertinent medical records and cath test results.

I also mentioned that in my doctors written opinion (copy to him as well) that such stress tests were not only pointless,

they were hazardous, and especially so in my case. Emergency surgery (heart/lung machine and all that) is not available locally.

Based upon my treating doctors written statement, and the VA guidelines, had he conducted the VA ordered tests, and anything untoward happened,

an expensive malpractice suit by me or my survivors would have been cut and dried. The VA contractual relationship did not prevent a direct suit against him (under state law), and further action against the VA (1151, Tort, etc).

He declined to do the tests. I have no idea exactly what he sent back to the VA. However, this paperwork information was made a part of an earlier VA conducted C&P for DMII.

In essence, the VA DMII examiner stated that the records showed that I was, in fact, presumptive for IHD, and the equivalent METS would be well within the 100% rating requirements.

More interesting was a statement that further testing was not required or desired. ( the examiner made the statement at least in part as a result of my comment that the VARO had repeatedly tried to schedule treadmills.) That C&P statement looks like a basis for P&T to me.

Even more interesting was that I ended up having to get the NVLSP to add my name to the list of Nehmer veterans that the VA had not bothered to tell them about.

This seemed to produce a response from the VARO, who recently transferred my claim to one of the processing centers for IHD, etc. Nehmer cases, upon receipt of a records request from NVLSP.

Delays, delays, delays. The SSA determination of total disability, based solely upon SC presumptive conditions, has been in my records since the first VA claim was filed, years ago.

Edited by Chuck75

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I completely agree with you. The Tort stuff would have been appropriate if they insisted on any tests that caused you further disability or death.a VERY Scary thought.

IHD can be referred to many ways in a decision and med recs.

"That C&P statement looks like a basis for P&T to me. " to me too.

"Even more interesting was that I ended up having to get the NVLSP to add my name to the list of Nehmer veterans that the VA had not bothered to tell them about.

This seemed to produce a response from the VARO, who recently transferred my claim to one of the processing centers for IHD, etc. Nehmer cases, upon receipt of a records request from NVLSP."

The only acknowledgement I had from VA (I had 2 pending AO IHD claims-the CUE of 2004 and the Aug 2010 claim I filed when new regs came out))was via IRIS response from Phila Nehmer people.

I had more responses from NVLSP then the VA.Nothing-not even a VCAA letter.

Question Chuck- this is another issue I raised to Rick Spataro NVLSP and his response:

I was concerned that since most of these new AO claims should be no-brainers and a review of the C file would determine whether Nehmer applies, I asked Rick whether the VCAA could be waived to save considerable time in handling these new AO claims.

He replied: ( this was from last year's emails)

“Hi Berta,

 

I don’t think the VCAA can be “waived” for any VA claims.  However, for some time now the VA has had special procedures in place for AO-claims associated with IHD, Parkinson’s disease, and B-cell leukemias.  Basically, they have been doing a lot of the development in anticipation of the regulation so that the claims are “ready to rate” when the final regulation is published.  They have also proposed (not sure if it’s become final) a procedure in which veterans would be able to forego a VA C&P exam if their private doctor fills out a form providing the VA with sufficient information regarding diagnosis and symptoms/severity to rate the condition.” 8-2010

This was last year and he was right about the new private doc C & P forms.Still-I never received a VCAA letter for my Aug 2010 AO claim -did you? Or anyone here?

"Delays, delays, delays. The SSA determination of total disability, based solely upon SC presumptive conditions, has been in my records since the first VA claim was filed, years ago."

Yeah-I am still wondering why the 800# man told me the PC had entry that my AO claims are set "to go forward" as of this past Monday.

I asked him why the CUE re: IHD didnt go forward for the last almost 7 years.

I said at least I knew why my last DIC claim didnt "go forward" for 7 years.He asked why-and I told him I had dealt with illiterates.

He didnt have any answer.But he laughed.You have to have a sense of humor to deal with the crap we put up with.

In my opinion these delays are deliberate and often due to raters who are afraid to make a favorable decision.In the case of Nehmer (which you are always VERY profoundly in touch with the legalize there and you are always a tremendous asset to this board Chuck)

the VA raters who are handling Nehmer cannot make major mistakes without incurring sanctions against the VA.

Most AO claims presumptive I think are truly no brainers - needing the most work if there are staged ratings for percentages back to the original denied claims.

But how long could that take?

Was the significance of March 7th because they thought the Gov would shut down so they were taking it easy and sitting on AO claims?

The 800 man said PC showed there were no letters to me awaiting a response so that means they had all they needed.

Since Aug 2010.

I don't get how a flurry of AO awards came out as soon as the regs were published and now they are only tricking out.

)

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Bumping up the Footnote One stuff for a local vet and others here if needed-

This is a critical aspect of Nehmer for many AO vets and survivors.

As Chuck stated here and this happened to me too-

our ROs didnt put us on the Nehmer list and should have.

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Bumping it up AGAIN!

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Bumping this up one more time for someone I just directed to hadit.com

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