diabetes Backpay Or Not?

[Berta]

forgot to add-

not only will VA have to prepare staged retro ratings for many IHD AO vets under Nehmer- they also will have to consider any secondaries that are due to the IHD of the veteran claimed secondarys to their IHD in the original IHD denied claim.

I raised a secondary in my response to the VA's Nehmer letter to me.

I dont know how that will fly but I referred them directly to the IMO that revealed the secondary.

I reviewed the VA CRA report many many times (this was the report generated by the 60 day Congressional moratrium BS when these regs came out.)

It looked to me that although the figures and cost were estimates regarding the 3 new presumptives,

they had not fully considered the potential costs of SMC awards fully to veterans and as potential accrued benefits to widows/widowers or veterans with AO IHD.

Widows/widowers or their survivors are eligible for ALL accrued under Nehmer and not the regulation limits to accrued.(accrued under the new AO SC rating)

I feel my accrued AO award will teach me how to answer questions like yours-so similar to my claim in many ways.

In that respect I cant wait to get it.

Then again my last claim took 7 years so I also can be patient.

(and I a well prepared to fight if I don't like their decision)

Have you contacted NVLSP yet to get on their list for review of your decision?

Edited April 7, 2011 by Berta

[carlie]

As far as the rating itself, everyone agrees that the EF of 44% will bring me 60%. But I had one tell me that since the Echocardiogram is old, (2007), they will probably want me to get another one. The VA has been providing my health care sine 1991. I have had numerous heart episodes since 1985, so they have all the records and in my C&P, they say that CAD DID exist BEFORE I was denied for SC in July of 2000.

Spadoman,

My take on this will be that you will receive staged ratings on this issue, with retroactive compensation

going back to the date of the claim, that resulted in a July 2000 denial.

Being that all of your health care has been provided by VAMC/s since 1991 there should be no problems

accessing or acquiring your medical records.

[Spadoman]

Berta:

You said: However- 'I had my first heart attack in 1985 and a myriad of heart episodes' that changes things-

What was the VA rating they gave you in 2000 under a NSC rating?

I had no rating for any service connection or non-service connection before 2001. At that time, I got PTSD, 70%, Diabetes 20% (This equals 80% VA math) and the balance, 20% IU totalling 100% disability, total and permanent.

I applied for heart disease and blurry vision, (a malady I was experienceing at that time) and was denied in a 2000 claim.

You also say that mine is obviously a SMC "S". I don't understand how that is, but if it happens, that would be great.

My history is:

Myocardiac Infarction, Sept 1985

Triple Bypass 1986

MI 1993 Care given at VA hospital in Grand Junction, CO, no intervention given. (They put a nitro drip on my arm for a week until the dull angina pain went away, then sent me to a public hospital for an angiogram. At that time they told me I had lost a piece of heart muscle)

MI in 2000, angioplasty treatment at VA in Minneappolis, MN

Stress test, also at MN VA, could not finish. Had to have nitro before collapse

2000 I apply for SC for Coronary Artery Disease, and denied.

MI and triple bypass in 2003, At VA hospital in Palo Alto, CA

Echocardiogram in 2007 shows 44% EF

So, in 2000, when I first applied for CAD and was denied, I had NO rating. I got a rating later. I have been receiving benefits payable at the 100% rate since 2001, (80%SC/20%IU)

So, there is no doubt that the CAD existed before 2000 when I was denied. I was "Boots on the ground" in the infantry min Vietnam in 1969 and worked numerous Corp of Engineer Rome Plow AO security missions.

I will be surprised at what happens. the big question for me is when. How much longer will I have to wait and will they give me SMC from 2000 to the present and the additional for the one year that I wasn't receiving 100% pay.

Thanks for any response. All veterans claims are different. No two have been exactly the same for one reason or another.

Where is that 1-800 number so I can call Betty? EBenefits just says I'm in "Decision"

[Spadoman]

Carlie... Thanks for your response.

What are staged benefit ratings?

I hope that they use the VA medical reports, but at my C&P, I see there is no mention of the 2000 angiogplasty or the failed stress test. They only mentioned the echocardiogram and the EF of 44%. The PA that did my C&P also had a hard time reading my EKG and had to go seek a doctor. I heard them in the hall and the doctor told her that my EKG was normnal for someone with what I have experienced. None of that was mentioned on the C&P either.

The PA referred to the EF of 44% instead of determining MET's with no mention of the failed stress test.

Anyway, thanks for your response.

[Berta]

"The TDIU or 100% SC you have now plus a 60% potential rating for IHD obviously puts you into the SMC "S" category for retroactive compensation."

I used the IHD rating schedule in this topic:

based on your ECHO Ejection Fraction although they could give you a newer ECHO -dont know.

"Total plus 60 percent, or housebound; 38 U.S.C. 1114(s). The special monthly compensation provided by 38 U.S.C. 1114(s) is payable where the veteran has a single service-connected disability rated as 100 percent and:

(1) Has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or

(2) Is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime."

In yopr case I woud think they would pay the S award back to the EED of your TDIU award.

:

"So, in 2000, when I first applied for CAD and was denied, I had NO rating. I got a rating later. I have been receiving benefits payable at the 100% rate since 2001, (80%SC/20%IU)"

No rating means that you probably fall under Footnote one of the Nehmer court order.

I am under footnote one too as my husband was never rated for IHD.

This is from email reply I got from Rick Spataro- NVLSP Nehmer lawyer that explains Footnote one:

“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"

I am Footnote one too-

VA malpracticed on my husband's heart disease over a 6 year period.

They never coded it or rated it -even after I won FTCA and Section 1151 claim for wrongful death that fully acknowledged the IHD as one of multiple malpracticed conditions he had due to VA health care.

I filed CUE claim on this in 2004 still pending when the AO IHD regs came through (it was set for BVA transfer) but VA suddenly pulled it from BVA pile and sent it to Nehmer people instead.

This is the first thing they ever did right in regards to any of my claims.

Under Footnote one and Rick's explanation above both you and I are Footnote One AOers as far as I can tell.

As Rick said there are other factors but it seems to me that- if VA knew of IHD and didnt give a diagnostic code or % at all in any poast denial,the claim that generated an IHD or CAD denial is the initial SC claim under Nehmer.

[Berta]

This BVA case shows what a staged rating is:

http://www.va.gov/vetapp10/files4/1034756.txt

The vet lost the first staged rating argument but won the next 3.

A staged rating is possible when a disability say at 10% disabling initially-warrants over time, a higher rating in a staged progression- fulfilling at each point the criteria for the next higher rating.