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.

[deltaj]

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.

Berta: I am touched that you shared your story with us and I am amazed at the resilence you displayed in this fight with V.A. I am glad that you are moving towards peace with honor in being able to state that your husband died because of Agent Orange. One of my friends is a widow of a Vietnam veteran who died of a heart attack. She called V.A. recently about this and they told her by phone that she couldn't reopen her claim for DIC because her husband signed a waiver for a heart problem when he entered service. I told her to file the claim anyway because when he entered service they didn't tell him he was going to be sprayed with Agent Orange in Vietnam and that furthermore, Congress had determined that death from ischemic heart disease was presumptive for Vietnam veterans. I think I privately was thinking that V.A. might be lying to her about the waiver. Heck, I can look at my husband's file and I get furious at what they did to him. In 1979 he filed for an increase and was told to sent new and material evidence within one year. No rating decision was made. In 1986 he began receiving Social Security disability due to his service connected condition. In 1987 he filed a claim for increase and was denied. During the appeal period he submitted new and material evidence but V.A. did not prepare a Statement of Case. In 1988 a V.A. doctor stated in writing that he was unemployable due to his service connected disability and V.A. denied his claim. In 1990 a V.A. doctor who did not have access to his V.A. file said the same thing and again he was only granted 50%. In 1992 he was again denied an increase. He had to sell his house that summer and we had to move onto a houseboat. That summer my heart condition worsened and I required open heart surgery that fall. After the surgery I developed blood clots in my right leg. While I was in the hospital my husband's ex wife filed a claim for increased apportionment so I had to prop my leg which had blood clots in it to type a response for him claiming hardship. I submitted that response along with extensive medical documentation showing I was unable to work then and we had extraordinary medical expenses. V.A. denied the ex wife's claim for increased apportionment. In 1992 I was told to stop appealing by DAV and that my husband's rating might end up being reduced. I spent a lot of time hanging around the law library reading lawbooks and veterans cases. In 1993 we got Congress involved and we submitted medical records from Social Security as new and material evidence. After receipt of that new and material evidence and another favorable V.A. exam, my husband was granted a 100% rating. We moved out of state and two subsequent decisions awarded him earlier effective dates. What did I learn from this? First, I learned that the guys at V.A. are not the good guys who wear white hats and ride off into the sunset. I personally think that there must be something missing from the souls of people who can look right at a medical report that states that a veteran is unemployable due to a service connected disability and can deny the claim. These people do read V.A. exams because they selectively quote parts of V.A. medical reports in rating decisions yet they are heartless and cruel in ignoring evidence which is favorable to the veteran. The third thing I learned is to not trust V.A. because they can alter service records, destroy evidence, or ignore evidence. My husband's V.A. file has an altered service record in it and if it can happen to him it can happen to other people. My sdvice to veterans is to always get copies of your C file from V.A. and your records from the National Personnel Records Center and review all decisions and the evidence in your file. Also don't rely on V.A. to get favorable evidence. Request that the evidence be sent to V.A. from the source which has it. I also learned that perservance pays off. Had I quit we would still be living in poverty and my husband would be unemployable regardless. I also learned that the way to win is to submit one Notice of Disagreement with each decision based on V.A. law in 38 USC and V.A. regulations in 38 CFR, and to submit new and material evidence during every appeal period pursuant to 38 CFR 3.400 (q) and 38 CFR 3.156.

Edited March 31, 2011 by deltaj

[Berta]

Delta -your advise here should be on Billboards all across the US of A!

Although many claimants fly right through the claims system with no problems at all, many others find they are dealing with an arbitrary system, geared to deny the claim until the veteran gives up.

You stated “don't rely on V.A. to get favorable evidence.”

SO TRUE!

I somehow got involved this weekend in a CAVC case. The veteran's argument in part rests on believing VA should have obtained this or that to support his claim.

But in all of the years prior to his CAVC filing- he himself should have obtained that evidence.I spent hours on reading the court submissions he made, VA's responses, and his BVA decision only to realize his entire argument with VA is legally and medically flawed and unproductive.I was told by the advocate who started helping him (then came to me) he is considering getting an IMO but the court won't consider evidence not of record in the BVA case.

It is up to us as claimants to get the evidence we need!

You stated:”I also learned that perservance pays off “ and you are SO right on that one too.

“I personally think that there must be something missing from the souls of people who can look right at a medical report that states that a veteran is unemployable due to a service connected disability and can deny the claim. “ I think this crap is deliberate or they are simply incompetent federal employees.

“These people do read V.A. exams because they selectively quote parts of V.A. medical reports in rating decisions yet they are heartless and cruel in ignoring evidence which is favorable to the veteran. “ Delta this is exactly why my claims took multiple years -when the evidence they needed was sent to them in months or even with the actual claim itself,in my case.

I have Socs ans SSOCs that prove your point exactly-they manipulate the C & P results to their favor and only by getting a copy of the actual C & P, can a veteran or widow argue that they are wrong.in the SOC statements.

I think many here must be tired of hearing of my husband's experiences with the VA and mine.

But it seemed we both encountered every claims problem that could possibly crop up.Even my DEA and Chap 35 experiences might have helped someone here.

I know for a fact his wrongful death by VA has helped manyHis best friend at the VA where he worked was almost killed by the sameVA too.I wrote his claim ,he mailed it same day and it only took 4 months (Section 1151)

(I didnt even have a single med rec to send with it.But I knew that day that something had gone wrong in his care)

They are paying him for the rest of his life for what they did medically and when they discovered the malpractice they took steps to extend his life -which they admitted they had shortened by a completely wrong diagnosis .

This vet had no idea what the Sec 1151 claim was really about but at least he trusted me enough to file it.

Re the DIC widow

“I think I privately was thinking that V.A. might be lying to her about the waiver.”

I do too. The Mil (particularly the Navy) had active mil sign waivers for inservice disabilities years ago in the late 1970s and 1980s. I know vets who would not file a claim because they were afraid of the waiver.

I had personally experience with this-my husband signed a Navy waiver on an inservice injury (he was Navy after USMC)those waivers meant nothing and were geared to intimidate the serviceman or woman not to file a VA claim when they got out.

He never put the injury on his claims, fearing the waiver. VA gave it a 10% NSC anyhow because they saw the injury in his SMRs.I got his Navy SMRs and the waiver isn't in there.They usually threw these waivers away as soon as they convinced the serviceperson to promise by signing it, that they would never claim it.

[deltaj]

Delta -your advise here should be on Billboards all across the US of A!

Although many claimants fly right through the claims system with no problems at all, many others find they are dealing with an arbitrary system, geared to deny the claim until the veteran gives up.

You stated don't rely on V.A. to get favorable evidence.

SO TRUE!

I somehow got involved this weekend in a CAVC case. The veteran's argument in part rests on believing VA should have obtained this or that to support his claim.

But in all of the years prior to his CAVC filing- he himself should have obtained that evidence.I spent hours on reading the court submissions he made, VA's responses, and his BVA decision only to realize his entire argument with VA is legally and medically flawed and unproductive.I was told by the advocate who started helping him (then came to me) he is considering getting an IMO but the court won't consider evidence not of record in the BVA case.

It is up to us as claimants to get the evidence we need!

You stated:I also learned that perservance pays off and you are SO right on that one too.

I personally think that there must be something missing from the souls of people who can look right at a medical report that states that a veteran is unemployable due to a service connected disability and can deny the claim. I think this crap is deliberate or they are simply incompetent federal employees.

These people do read V.A. exams because they selectively quote parts of V.A. medical reports in rating decisions yet they are heartless and cruel in ignoring evidence which is favorable to the veteran. Delta this is exactly why my claims took multiple years -when the evidence they needed was sent to them in months or even with the actual claim itself,in my case.

I have Socs ans SSOCs that prove your point exactly-they manipulate the C & P results to their favor and only by getting a copy of the actual C & P, can a veteran or widow argue that they are wrong.in the SOC statements.

I think many here must be tired of hearing of my husband's experiences with the VA and mine.

But it seemed we both encountered every claims problem that could possibly crop up.Even my DEA and Chap 35 experiences might have helped someone here.

I know for a fact his wrongful death by VA has helped manyHis best friend at the VA where he worked was almost killed by the sameVA too.I wrote his claim ,he mailed it same day and it only took 4 months (Section 1151)

(I didnt even have a single med rec to send with it.But I knew that day that something had gone wrong in his care)

They are paying him for the rest of his life for what they did medically and when they discovered the malpractice they took steps to extend his life -which they admitted they had shortened by a completely wrong diagnosis .

This vet had no idea what the Sec 1151 claim was really about but at least he trusted me enough to file it.

Re the DIC widow

I think I privately was thinking that V.A. might be lying to her about the waiver.

I do too. The Mil (particularly the Navy) had active mil sign waivers for inservice disabilities years ago in the late 1970s and 1980s. I know vets who would not file a claim because they were afraid of the waiver.

I had personally experience with this-my husband signed a Navy waiver on an inservice injury (he was Navy after USMC)those waivers meant nothing and were geared to intimidate the serviceman or woman not to file a VA claim when they got out.

He never put the injury on his claims, fearing the waiver. VA gave it a 10% NSC anyhow because they saw the injury in his SMRs.I got his Navy SMRs and the waiver isn't in there.They usually threw these waivers away as soon as they convinced the serviceperson to promise by signing it, that they would never claim it.

Berta, If you're going to be involved in a CAVC case be aware that the court has some horrible rules that don't favor veterans. I may be quoting the rule wrong but there is one rule of the court that if a veteran doesn't mention an argument in his OPENING brief then the argument is considered abandoned. I read another case lately where the veteran's last name was HAMER and in the argument the poor veteran got an attorney. In that decision the court stated that every srgument that the veteran made in his informal brief was considered abandoned because he retained an attorney. I thought to myself when I read the case--What hogwash! This system is corrupt and crooked. When my husband's case reached the court, his file had been stripped of a lot of key documents. I spent so much time redesignating the record and resubmitting those missing records that I missed a key argument in my opening brief that his Navy records were not in the file at the time of the first V.A. exam. One of those missing documents, found in a box of newly received records recently, was an informal claim he wrote out that did not mention the phrase service connected. He said in that claim, "I want to be reevaluated for my nervous condition." V.A. responded, "With regard to your REQUEST to be reevaluated, you may send us evidence your disability has worsened . . .You have one year to submit evidence." A service officer with the county veterans office, who was not his power of attorney, sent in an informal claim that stated, "Veteran has requested that he be revaluated for his service connected nervous condition. Has a V.A. exam be scheduled?" He never got a V.A. exam in support of that claim and V.A. did not sent him a claims application in support of those pending informal claims. This happened six years before he filed a subsequent claim that was granted. As far as I can tell no rating decision was ever made denying the earlier claim but BVA's 2000 decision stated all earlier claims were abandoned by the veteran. I never even saw these claims until last week. I'm really ticked that BVA left these out of the bound initial copy of his VARO records, the bound final Record of Appeal, and that VARO had left these claims out of a box of records they sent to my husband's doctor in 1995 which later ended up in our hands. My husband is now having to argue in a CUE claim that V.A. made an error in determining in a a particular decision that his claim for increase had been pending since about October of 1989 and is also having to argue in his claim of error that these earlier claims were still pending because no rating decision was made and because V.A. failed to mail the veteran a claims application in support of those informal claims.

Edited April 2, 2011 by deltaj

[Berta]

Can you give us a link to his BVA case?

The VCAA of 2000 had some provisions for pending BVA decisions.

I helped a lawyer with a CAVC case last year but am not really involved in the one I mentioned at all.

My involvement only regarded the fact that the advocate was unfamiliar with how to read the docket postings and arguments filed at the CAVC by the veteran.And an opinion as to what the veteran filed and what he could do next.

All of that however took up a considerable amount of my personal time and I advised them to come here with any further questions.

[deltaj]

Can you give us a link to his BVA case?

The VCAA of 2000 had some provisions for pending BVA decisions.

I helped a lawyer with a CAVC case last year but am not really involved in the one I mentioned at all.

My involvement only regarded the fact that the advocate was unfamiliar with how to read the docket postings and arguments filed at the CAVC by the veteran.And an opinion as to what the veteran filed and what he could do next.

All of that however took up a considerable amount of my personal time and I advised them to come here with any further questions.

Berta. It wasn't a BVA case. It was a COVA (Court of Veterans Appeals) case. The case is 07-4181 Steven Hamer v. Eric Shinseki which was decided in July 2010. I found it again online by searching under Hamer AND veteran. (There's a lesson here on searching technique, folks. If you can remember the last name of the veteran on a case and you want to find a case again, search under the last name AND veteran.) Berta, thanks for all you do for veterans.

Edited April 4, 2011 by deltaj