hypertension Question On Prior Denial Not Appealed ...

VetsLady · October 1, 2011

Hi All,

Have been looking for an answer to my question, and 1.) either can't find it or 2.) don't recognize it ...... I need an answer on a question, here goes:

Veteran files a claim for DM2 and hypertension. Both are denied as no proof of in-service RVN established. Appeal is filed on the

DM2 but not the hypertension. Veteran then proves boots on ground in RVN and wins the claim for DM2. Since that time, hypertension

is now manifested into hypertensive heart disease and/or coronary artery disease. A Nehmer letter arrives and the claim development process

begins, C&P's etc. The whole enchilada.

The question is this: If the Veteran did not appeal the prior denial, and is granted benefits for IHD, does any retro benefit granted go back to the date the claim was

originally filed even though it was not appealed ?

Thank you.......,

Edited October 1, 2011 by VetsLady

Berta · October 1, 2011

"The question is this: If the Veteran did not appeal the prior denial, and is granted benefits for IHD, does any retro benefit granted go back to the date the claim was

originally filed even though it was not appealed ?"

If the claim falls under Footnote one of the Nehmer court order-Yes-

If not =No

It is hard to guess from your post and I assume this is a hypothetical question?

The current IHD would need medical evidence of the linkage to the HBP.

Footnote one has been explained here recently and also under a search in both the main claims forum and the AO forum.

It depends on whether the VA coded the IHD in a past unappealed decision. Or should have coded it.or coded it as CAD but it is ischemia of heart.

If the vet gets a Nehmer letter than one can assume that the claim potentially will have Nehmer retro.

I dont see that possibility based on what you posted unless they got this letter meaning someone has made the determination that there is potential retro.

As I recall my Nehmer letter made that point as to potential retro.

Footnote One explains this better.

Edited October 1, 2011 by Berta

VetsLady · October 1, 2011

Berta,

Thank you for your response. The Nehmer letter I refer to is one the Veteran received advising the Veteran of being a Nehmer Class Veteran. Yes, I do believe it did state that potential retro was involved but as I'm sitting at my desk at the moment, I don't have exact recall of the what the letter said. Already sc for DM2 so Nehmer Class status is pretty clear. No need to guess if its hypothetical, its a real question and pertains to a current claim ;-)

The hypertension was denied but not appealed. Thank you for the reference to footnote 1, I'll review it....thanks again for your response, its very much appreciated !

"The question is this: If the Veteran did not appeal the prior denial, and is granted benefits for IHD, does any retro benefit granted go back to the date the claim was
originally filed even though it was not appealed ?"
If the claim falls under Footnote one of the Nehmer court order-Yes-

If not =No

It is hard to guess from your post and I assume this is a hypothetical question?

The current IHD would need medical evidence of the linkage to the HBP.

Footnote one has been explained here recently and also under a search in both the main claims forum and the AO forum.

It depends on whether the VA coded the IHD in a past unappealed decision. Or should have coded it.or coded it as CAD but it is ischemia of heart.

If the vet gets a Nehmer letter than one can assume that the claim potentially will have Nehmer retro.

I dont see that possibility based on what you posted unless they got this letter meaning someone has made the determination that there is potential retro.

As I recall my Nehmer letter made that point as to potential retro.

Footnote One explains this better.

Edited October 1, 2011 by VetsLady

Berta · October 2, 2011

I didnt get much from Bob Walsh as to the email I sent to him ( as re:ed in this post)-and I will contact Bart Stichman (NVLSP) who did this Power point presentation on Nehmer recently:

I feel that if a rating for any of the 3 new presumptives is incorrect in any of these Nehmer awards- then the veteran could ask the VA to CUE itself under the rating regs in 38 CFR.That will not stop the NOD clock of course but VA could act faster with this type of request than receipt of the NOD and hopefully resolve the rating issue without need for formal appeal.

Your question could have impact on many Nehmer vets and although I am very appreciative of the work NVLSP did to get so many their proper AO awards- many will still be left to deal with ROs that cannot seem to do anything right if there is a AO rating issue,unresolved by their Nehmer award.

It might take me some time to contact Bart as he is not my usual NVLSP contact person for Nehmer questions.

I am preparing a letter to him too as there are some other big concerns I have on the new AO claims.

One aspect of Nehmer does rely on the rating sheets prepared for past denials .BUT only as far as the actual AO presumptive goes.

I dont think a request for VA to CUE themselves on lack of proper rating for the HBP as secondary to the IHD-as in your case- would fall under the Nehmer Court Order at all.

As I dont think that part of the past denial regarding the HBP can become part of Nehmer (but can certainly be NOdded in the recent award for AO IHD.)

I do suggest you contact NVLSP at their agentorange addy and ask them what they might advise.

The Nehmer presumptives of HCB, Parkinson's ,and IHD must have had (or should have had as FootnoteOne says)

a diagnosis and coded DC entry as well as a NSC percentage in any past unappealed denials.

Any secondarys -in my opinion- do not fall under that part of the Nehmer Order.But of course should be claimed in the formal new AO Presumptive claim.

Thanks for your willingness to read the Footnote One info- because many Nehmer claims are intricate and cannot be fully interpreted here do to the many nuances they have.

Did your IHD claim ask for secondary SC for the HBP? If so, the VARO should have made a decision on that.

But the VA needs medical evidence of the link from HBP to anything else because if they can say it is simply "essential HBP " ,without further medical opinion on it -they can deny HBP claims.

broncovet · October 4, 2011

I would agree with Berta but add to not forget the below, which could lead to an EED. Notice that I put the word "OR" in bold letters as this is often mis interpreted to mean that only a child of a Viettnam Vet gets this benefit.

1 38 CFR 3.114

3.114 - Change of law or Department of Veterans Affairs issue. (a) Effective date of award. Where pension, compensation, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. Where pension, compensation, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran is awarded or increased pursuant to a liberalizing law or VA issue which became effective on or after the date of its enactment or issuance, in order for a claimant to be eligible for a retroactive payment under the provisions of this paragraph the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. The provisions of this paragraph are applicable to original and reopened claims as well as claims for increase. (1) If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue. (2) If a claim is reviewed on the initiative of VA more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of administrative determination of entitlement. (3) If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request. (Authority: 38 U.S.C. 1822, 5110(g)) (b) Discontinuance of benefits. Where the reduction or discontinuance of an award is in order because of a change in law or a Department of Veterans Affairs issue, or because of a change in interpretation of a law or Department of Veterans Affairs issue, the payee will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence. If additional evidence is not received within that period, the award will be reduced or discontinued effective the last day of the month in which the 60-day period expired.

Berta · October 4, 2011

Broncovet- I am glad you mentioned this as to dependents because

the Nehmer Court Order will pay retro in order of survivorship, and in some cases they will pay the Estate of the veteran.

As I mentioned before the enemy of AO vets is time.

Even their spouses are aging.And dying.

It is conceivable that a surviving spouse, as the beneficiary of a Nehmer award, could die before VA adjudicates the Nehmer claim or before they send the retro money.

I feel it is imperative that these IHD claims get proper EEDS and proper ratings right off the bat.

It is hard enough for vets and in many cases their surviving spouses , to pursue VA claims as it is, and it would be a travesty to have to expect surviving children -whether adult children or not, as Nehmer beneficiaries to have to continue the fight to get what is rightfully theirs.

As I suggested in the AO forum and it bears repeating- my AO claim contains the name and address, phone # of my will lawyer and full beneficiary info.

My assets are set up so that a formal Estate account might only be needed if I die before the Nehmer retro comes.

I intend to review that with my lawyer soon.

Some considerations now as to what our beneficiaries will deal with (whether Nehmer issues or other issues)as far as financial matters go can help them considerably when we pass away.

jbasser · October 4, 2011

Veslady, what condition was first diagnosed?

When was the HTN diagnosed?

When it was diagnosed what were the readings?

John

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