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.
Question
Berta
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.
Link to comment
Share on other sites
Top Posters For This Question
5
1
Popular Days
Mar 9
2
Mar 10
1
Apr 13
1
Sep 21
1
Top Posters For This Question
Berta 5 posts
Chuck75 1 post
Popular Days
Mar 9 2011
2 posts
Mar 10 2011
1 post
Apr 13 2011
1 post
Sep 21 2011
1 post
5 answers to this question
Recommended Posts
Create an account or sign in to comment
You need to be a member in order to leave a comment
Create an account
Sign up for a new account in our community. It's easy!
Register a new accountSign in
Already have an account? Sign in here.
Sign In Now