New Nehmer Training Guide

[Susan]

http://www.nvlsp.org/images/2011.02.10%20Nehmer%20Training%20Guide.pdf

I was looking at the NVLSP site and found two interesting articles.

Revised February 10, 2011: The VA's Nehmer Training Guide

This guide is 167 pages.

VA’s LIST OF SHIPS PRESUMED EXPOSED TO AGENT ORANGE IN VIETNAM (Updated 6/27/2011)

note it states that this in no way limits ships to those on the list.

http://www.nvlsp.org/images/ShipList6-24-11.pdf

[fanaticbooks]

Thanks Susan,

I appreciate you finding this. Looks as if I will be creating ANOTHER REVISED guide for the Training Letter forum. Might be able to compare and just have to revise a little (I hope).

fanaticbooks

[Chuck75]

It's sort of a pity that the VA Nehmer "Training Guide" is an "administrative" document.

As a result, even though the VA may have violated it's "thou shalts" in a particular claim or claims, it's hard to hold them accountable.

"Ya flips the coin, and takes Ya chance!" seems to be the result. This has to do with the review of other/implied claims mentioned in the document.

(My feeling only, specifically NOT legal advice!)

I still think its funny that the VA seems to be somewhat confused about "vessels", "boats", and "ships"

The way the list reads, it's possible to be on a ship that is not listed, yet the ship carries "vessels" (boats) that are on the list. (Now what?)

Because of this list and it's earlier versions - -

I go from just "feet on ground" to

Presumptive according to

Feet On Ground

River Rats (Mobile Riverine Force) service

LST service

LSMR service

And, as an added "plus", no less, newer "presumptives" were previously denied, thus Nehmer kicked in.

Naturally, this makes no difference in how the VA decides how likely a given set of conditions associated medically are if they are not directly spelled out

on the presumptive list. A key combination/condition is "Metabolic Disorder", which is suspected and possibly (these days) diagnosed when multiple

conditions on and off the presumptive list are present.

Edited August 8, 2011 by Chuck75

[Susan]

You are welcome, Fanaticbooks. Sorry for the added typing for you though. Like you said perhaps it will be easier to add and revise bits. I like that it spells out who the survivors are in all the prints. I plan to hold them accountable for that.

As for the ships Chuck, I had seen lists before and did not remember the designations like LST and so forth on those lists. I mainly looked at the names of ships and where they were on the first lists that I looked at before. Wasn't sure, but hoped this list might help others.

That first training guide is what helped me to continue with my claim. The group helping me didn't know what the guide was. The County VSO was new and had no experience with it. He told me that he would work with me, but warned that it would be his first.

Susan

[fanaticbooks]

I am slowly proofing this latest guide. I am only up to Page 36 but am finding I will not have to redo the whole nine yards, just some small sections.

To make it easier, I will try to post the differences I have found in here. I will be posting in here in sections as I find them. When completed, I will try to post all the major differences when the document is inserted in the Forum. Minor changes I am not going to post.

Note: I didn't compare the June and September ones, but have just simply used the September for comparison with this February one.

For now, this is what I have found...

Revisions in February 2011 version.

Using Their page numbers….

Page 17-18 under Service in the Republic of Vietnam a newlist of definitions concerning being aboard vessels.

Page 19 - 21 after list ending in VA Form 21-601, newparagraphs to “Examples of Claims”

Page 22 Example3 has been changed

Page 30-31 Rating, Memorandum for the Record--- New Thirdparagraph down to “Some examples where VA may not,….” The Note is gone that was in the former revision.

Page 33-36 Total Disability Based on Individual Unemmployability (TDIU), Newaddition starting with “Extra-schedular NSC Pension Conversion to TotalDisability Ratings Based on Individual Unemployability” and ending at “Claimsfor Service Connection” section

Page 36 Evidence and Evidentiary Basis, new intro, Firstparagraph

[fanaticbooks]

More Revisions:

Page 45-46 New Insert—Nehmer Case Review

Page 46 New Insert – Requests for Exclusion from Nehmer

Page 49 Replacement of Appendix 2 with New format/info onVessels and AO claims

Page 60 New 7^th & 8^th paragraph

[fanaticbooks]

Additional Revisions

Appendix 7, Removed the following Example –

Example Rating Decision for Service-Connected Death Grantwith Prior Grant (claim received within one year of Veteran’s death)

Also, moved to

Appendix 10 –

Revised the following

Example Memorandum for the Record for No Vietnam Service

Example Memorandum for the Record for No Claim

AND Newly added to Appendix 10 --

Memorandum Notice Letter

Appendix 12, Page 114, New Letter

Initial Nehmer Notice Letter

Appendix 13, Page 118 – Additions & Changes

Including elimination of #42, #42d through 43

Addition of Dates to List of ALL PRESUMPTIVE HERBICIDE CONDITIONS UNDER THE NEHMER COURTORDER (Note from FB: Dates ofAugust 31, 2010 have been added to some that were previously pending)

Appendix 14, Alot of Changes

Appendix 15, Additions & Changes

Includes Elimination of #36, and from #36C through #37

Appendix 16, Page 139, A lot of Changes

PAGE 145, Appendix 18 – Footnote 1: Need for Amendment to38 C.F.R. § 3.816 Regarding Nehmer Claims(Appx. 18 is provided for historical purposes)

The following paragraphs found in the September 2010version were eliminated in the February 2011 version of this Appendix.

Amendment of 3.816©(1) would affect very few claims. Lessthan one percent of all claims identified for further adjudication by theNehmer plaintiffs' review of claims files in discovery involved unclaimedconditions that were required to be coded under paragraph 46.02 of ManualM21-1. Further, plaintiffs' file review has covered all herbicide-relatedpresumptive conditions, except type 2 diabetes. which VA service. connectedeffective July 9, 2001 {the U.S. Court of Appeals for the Federal Circuit laterchanged the effective date of the regulation service-connecting type 2 diabetesto May 8, 2001, in Liesegang v. Secretary of Veterans Affairs, 312 F.3d 1368(Fed. Cir. 2002)).

With respect to type 2 diabetes, amendment of section 3.816might require readjudication of some claims. However, VA has already agreed toreadjudicate all identifiable type 2 diabetes claims. As stated above,paragraph 4 of the Final Stipulation requires VA to use its SIRS database toidentify claimants entitled to readjudication under Nehmer. Although SIRS nolonger exists, VA searched its VITALS database for type 2 diabetes claimantsthat filed claims prior to 1999. That search identified 2,777 claimants withpotential eligibility under Nehmer. VA issued a Nehmer readjudication notice(required by paragraph 4 of the Final Stipulation) to 1,756 of those claimantsand, in Fast letter 02-33, instructed the regional offices to readjudicatetheir c\aims. VA has not provided a readjudication notice to the remainingclaimants and has not initiated readjudication of their claims. On December 7,2000, VA issued Fast Letter 00-91, instructing the regional offices toestablish “685 diary" with a July 1, 2001, suspense date for any claimseeking service connection for type 2 diabetes based upon herbicide exposure inVietnam. On June 14, 2001, VA issued Fast Letter 01-51, which instructed theregional offices to use July 9, 2001, as the effective date for benefitsawarded for type 2 diabetes. Because VA believed that Nehmer might requirereadjudication of those claims, the regional offices were instructed to use the"685 diary" for tracking decisions. On October 19, 2001, VA issuedFast letter 01-94, which instructed the regional offices to begin applyingNehmer to type 2 diabetes claims. VA later entered into a stipulation in whichit agreed to readjudicate all of the type 2 diabetes claims controlled underthe “685 diary" (13,318 claims). Although VA readjudicated those claims, adecision was recently made to conduct a full second review.

As part of its compliance with the Federal Circuit'sLiesegang decision, VA identified 9,340 claimants that filed claims for type 2diabetes, had Vietnam service, and received a compensation award effective betweenMay 7, 2001, and August 2, 2001.

The 9,340 "Liesegang claimants" are probably alsolisted among the 13,318 "685 diary claimants." Accordingly, exceptfor the 1,756 claims that have already been readjudicated under Fast letter02-33, we conclude that it would be prudent for VA's upcoming readjudication of14,339 type 2 diabetes claims (13,318 controlled by the "685 diary"and the 1,021 claims identified from VITALS that remain unadjudicated) to applythe proposed amendment to all identifiable claims that are outside the scope ofthe district court's discovery orders.

VA's recent decision to conduct a second review of the13,318 type 2 diabetes claims was prompted in part by quality concerns. Classcounsel has demanded that VA produce its quality review data and has threatenedto raise the issue before the district court. DOJ refused that request basedupon VA's decision to conduct a second review of all 13,318 claims. Amendingsection 3.816 would provide another basis for conducting the second review andmight tend to neutralize class counsel's argument that he is entitled to thequality review data.

Page 150, Appendix 20 – Numerous changes

Including, Removing #31 contents and adding new contents

Now listing January/February Updates at end - #’s 31 through64

(better version than mine, but then I did it on the fly.)

Will include the revision list when I post in the forum to make it easier to decipher.