Nehmer Survivors

[Berta]

I posted this in the AO forum but maybe best to post here too.

The VA sent me letter on my AO claims (I cannot tell if it regards the CUE claim I filed in 2004 or the Aug 2010 claim I filed.

The outcome should be the same anyhow.

I was asked to send any more info I have within 30 days (the letter is dated March 11 but I got it yesterday so I really don't have 30 days.)

They also asked me for potential beneficiary contact info and also for raised seal court house Probate court papers (Estate/Letters of Administration).They don't want copies, this must be the raised seal documents from the probate court in your county.If a lawyer handled this for you-the lawyer might have a raised seal version you could use in their file.Otherwise you have to get one from the probate court yourself if you dont have one.

Many widows/widowers or other next of kin of the AO veterans have probably stuffed these papers away long ago so this is something you will need to dig out and send to them if you filed claim under the new AO presumptives and your claim is confirmed as coming under Nehmer.

If your claims succeeds this means (like the old AO Settlement Fund did) that you are class action member being paid under a Court Order. I am pretty sure I had to send these documents to the Judge in the older AO settlement fund too but never considered they would be needed by the Nehmer people and they have asked for them.

Also a suggest- they sent me a 21-4138 for more evidence or additional statements.

I am listing on the 4138 a description of the considerable evidence I have already sent in for both my CUE and the recent AO claim. I also fled for A & A accrued and will list that and the evidence I sent for that too.

I spend about an hour a week going over my evidence to see if there is anything I have overlooked.I think sent it all but that means nothing if they didn't get some of it so the 4138 will verify what they have.

They said

"If we do not hear from you we may make a decision on the claim after 30 days.We will be able to decide your claim earlier if you complete and return the attached Nehmer Notification Response prior to the end of the 30 day period."

They then say you can fax it to the "fax numbers listed below" but they failed to put fax number there.

[carlie]

Berta,

Do you have a phone contact number - that might could provide the fax number ?

[Berta]

I was given a contact number months ago from the VSM of the Phila VARO in response to an IRIS request I made.

However it was for a personal cell phone and I never received a call back.

I think I have their fax number somewhere however.

The local FOIA office at Bath VA has my raised seal probate papers.

I had a heck of a time with them years ago regarding a simple FOIA request and had to file appeal with the General Counsel in DC-producing an apology and the records from the FOIA officer.(she had lied to me on paper )and if they don't call me back by Friday I will contact the director there.

They demanded these papers in order to process my records request and I just found out they had no right to even ask for them.

The only thing I can find at the VA FOIA site is that a survivor needs copy of the veteran's death certificate to get copies of their medical records.

But they demanded the Probate papers and after a few attempts to get them back I guess I just forgot about the whole thing.

I can easily get them from the county Probate office. But there is a principle involved here.

Plus the fact that probate matters contain personal financial data and really have nothing to do with any of my VA claims-or any FOIA request.

[deltaj]

I posted this in the AO forum but maybe best to post here too.

The VA sent me letter on my AO claims (I cannot tell if it regards the CUE claim I filed in 2004 or the Aug 2010 claim I filed.

The outcome should be the same anyhow.

I was asked to send any more info I have within 30 days (the letter is dated March 11 but I got it yesterday so I really don't have 30 days.)

They also asked me for potential beneficiary contact info and also for raised seal court house Probate court papers (Estate/Letters of Administration).They don't want copies, this must be the raised seal documents from the probate court in your county.If a lawyer handled this for you-the lawyer might have a raised seal version you could use in their file.Otherwise you have to get one from the probate court yourself if you dont have one.

Many widows/widowers or other next of kin of the AO veterans have probably stuffed these papers away long ago so this is something you will need to dig out and send to them if you filed claim under the new AO presumptives and your claim is confirmed as coming under Nehmer.

If your claims succeeds this means (like the old AO Settlement Fund did) that you are class action member being paid under a Court Order. I am pretty sure I had to send these documents to the Judge in the older AO settlement fund too but never considered they would be needed by the Nehmer people and they have asked for them.

Also a suggest- they sent me a 21-4138 for more evidence or additional statements.

I am listing on the 4138 a description of the considerable evidence I have already sent in for both my CUE and the recent AO claim. I also fled for A & A accrued and will list that and the evidence I sent for that too.

I spend about an hour a week going over my evidence to see if there is anything I have overlooked.I think sent it all but that means nothing if they didn't get some of it so the 4138 will verify what they have.

They said

"If we do not hear from you we may make a decision on the claim after 30 days.We will be able to decide your claim earlier if you complete and return the attached Nehmer Notification Response prior to the end of the 30 day period."

They then say you can fax it to the "fax numbers listed below" but they failed to put fax number there.

Dear Berta: In August 2010 the V.A. published a regulation in the Federal Register that stated that ischemic heart disease incldes coronary artery disease. I seem to remember that your husband had some heart attacks and/or strokes. The aforementioned regulation mentioned the Nehmer case.

[Berta]

Yes-I filed a claim as soon as these regs were published.He had IHD with strokes as secondary -per my IMOs,the death certificate and per the autopsy (and per documents from the FTCA matter).

[deltaj]

Berta, There are a couple of things I am wondering about your case. First, did your late husband file a claim to service connect his heart attacks or strokes? Secondly, have you made a written request to V.A. to reopen your first claim for DIC? I am asking thia because there is probably a liberalizing law that goes with this new regulation. I am also asking because of your potential entitlement to accrued benefits. The new regulation mentioned Nehmer.

[Berta]

Delta asked:

"did your late husband file a claim to service connect his heart attacks or strokes?"

Yes- he filed a Sec 1151 claim over his PTSD treatment and added that he felt VA would kill him by further misdiagnoses.

We were aware of one misdiagnosis 2 years before he died which they seemed to mitigate.( so I thought- until I got the med recs)and he stated he felt more VA medical errors like that, without proper PTSD treatment, could possibly cause his death from another stroke or even a heart attack.(His heart condition had already been misdiagnosed but we didn't know it. One of his CVA docs was the head cardio at Syracuse and told me he didnt have anything wrong with his heart))My husband was right. This is the claim I reopened after he died.(and his pending 30% SC PTSD claim- which they awarded at 100% p & t)

I received DIC under Sec 1151 for many years ( as result of wrongful death FTCA case.)

In 2003 my daughter (in the Mil at the time) insisted I re -open.Her logic was this-VA had admitted to malpractice of strokes and heart disease and a few other prescription errors regarding her dad. The DMII regs had came out and she remembered symptoms my husband had that seemed to be symptoms-possibly of DMII from AO. I didnt want to deal with the VA again and put off the re-open.Finally I read up some info on diabetes and then studied his med recs and autopsy again. Then I spent considerable time researching more up to date cardio ,neuto and diabetes info on the net and in libraries. I bought some good medical texts too. She was right.He had DMII and then complications the DMII caused had killed him.

The VA awarded me last year for Direct SC death due to herbicides in Vietnam.There was no diagnosis or treatment in the med recs. Diabetes was never mentioned at all in his med recs but the significant evidence I had awarded the DMII claim yet VA refused to consider him a Nehmer veteran.I just filed a NOD on that award last week.

The VA granted DMII from AO with his heart disease and strokes as secondary.

I had already received accrued benefits under the 2 year reg -that had accrued under his PTSD claim (pending also at his death) which I re-opened as well. I have CUE pending because the VA failed to consider his SMC entitlement at that time.

The ratings were wrong.100% SC PTSD plus 100% SC under 1151 for CVA and 100% dead from 1151 IHD.He also was eligible for A & A under the regs and the clinical evidence in his med recs.I fied for that to as accrued.

The IHD was never rated at all.

The VA owed me a FTCA offset for years of DIC they had withheld under the 1151 claim. I had to fight them but I got it lst year when I got the GC involved and I was awarded all the ancillary direct SC death benefits they owed me plus a new Cert of Eligibility with a more favorable date for my Chapter 35.(which I had used up prior to the direct SC award)

There were no accrued benefits because they refuse to rate his DMII as well as his IHD.

Then a miracle happened. The VA added IHD to the AO regs.This addition as altered the lives of countless Vietnam vets and their families.

I had to get in touch with many vets I know who had basis for an IHD AO claim.

I filed a claim too.VA said in recent letter they would decide the claim as soon as I respond to them with some info they requested.

Although the IHD was never rated by the VA and never diagnosed, I had proved he had IHD -with the clinical record- and when they found out his main VAMC had misdiagnosed it-another VAMC treating him- covered the IHD up.I proved all that for the FTCA case.

Now the VA has to rate his IHD and his CVA as direct SC due to AO and this, along with the CUE,will warrant additional accrued SMC to me.

I don't care about the accrued amount. They have to make a staged rating.Then 60%IHD after the sole ECHO was done 2 years before he died..The accrued amount will probably be wrong anyhow.

It took VA almost 17 years to declare my husband as an AO vet. I was heartbroken when I got the direct SC award to see they would not even acknowledge his DMII for any rating at all (yet the award was for DMII causing the IHD and CVAs and his death)but their recent letter I got puts that in granite.

There is no honor in a FTCA or Sec 1151 death.

There is honor in a Agent Orange death.I owed him that.

Both he and I are finally close to Peace with Honor on this horrific ordeal of a vet dead at age 47 due to AO and lousy VA health care.

They almost got away with malpractice. Every vets should get to know their clinical records inside and out.If something doesn't seem right they should question it with their doctors.

They can get on the net these days and find a wealth of info as to their disabilities that was lacking in the 1990s when I filed my wrongful death case.

I believed the Syracuse cardio doctor when he said there was nothing wrong with my husband's heart.He had just read the ECHO and never revealed to me that my husband was already doomed because a prior heart attack had also been misdiagnosed and left untreated.They covered up the prior malpractice until I discovered it.They knew he would die and never thought anyone would ever find out what they did.

Every time a question like yours comes up here-I hesitate to answer in detail -but then again-

what happened to my husband could happen to any vet here, and could happen in the best private hosp as well as any VA.

We are all the ones ultimately responsible for our medical care.And if something just doesn't seem right with that care,

there is a possibility that something is, in fact,not right with the meds or treatment or even the diagnosis.

And that could lead to a fatal event.

BTW -Nehmer pays ALL accrued benefits to the survivor that are generated by the AO disability.

There is no 2 year limit under Nehmer for accred benefits.