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Susan

Nehmer Complaint

Question

For the third or fourth time this year I recently got the standard first letter "VA received your application" and "don't contact us, VA will contact you". I was happy to at least hear from VA. This week I got a letter from NVLSP notifying me that the Nehmer complaint was made for IHD Service Connection for my deceased husband and DIC. No mention of Nehmer from VA yet. The letter states that VA has about three months to decide if VA agrees and if they do, then VA has thirty days to pay. I hope it works that way!! I had been told that VA had a time limit to begin readjudicating the claim and I just thought it would fall back to normal processing as usual. I was happy to see dates and time limits. My friend who filed the same day in a similar situation over a year ago is still waiting. Her claim was recognized as Nehmer a year ago and all her evidence was in and VCAA filed in January or February.

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At least 2 of us here (me and CHuck) were not put on the Nehmer list by VA.

I got my formal Nehmer letter a few months ago (filed IHD claim Aug 2010)and the 800# said my claim has been ready to rate since April.

The VA didnt put me on the NVLSP list either. I have 2 separate Nehmer issues.

The VA suggested they would have these AO claims finished by the end of October,2011.

??? dont know if they will.

It sounds to me that your case is a Footnote One Nehmer claim.meaning

The VA denied IHD in the past for SC or DIC in a past rating decision.

"VA received your application"

I finally got that generic letter years after I filed my last claim.The award was for DMII from AO contributing to death.

It made my 1151 DIC moot and awarded considerable other ancillary benefits because it was now a direct SC death.

VA refused to rate my husband;'s DMII and IHD however.And again forgot to consider him for SMC. I Nodded my award letter due to multiple errors in it.

I got another award letter right away. It was still wrong so I nodded that.

It took me almost a year (a real battle) until they sent me the retro.

The retro wasn't really retro, it was an offset to my FTCA settlement.

I would have never received any of that if I had not studied the VBM by NVLSP.

Under FTCA settlement -if a financial offset occurs to a standing award of SC comp or DIC-

under 1151, only by [proving the malpracticed conditions were direct SC conditions or a dirct SC death-

one can then recoup the offset (which can be a very tidy sum of cash)

NVLSP told me they knew of no vase where this was done before except for mine.

The FTCA case in the VBM is much different from mine.

I mention this from time to time here because many vets and widows and I bet 99% of vet reps are unaware of this legal fact regarding FTCA and Sec 1151 claims.

I sure hope they resolve your case SOON!!!!

Edited by Berta

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Thank you Berta. I hope you hear something soon also.

Yes,Don was denied several times. There was a DIC rating in the C-file also and it was denied. It may not make a difference, but I am positive that the date had been changed on the DIC application. I had wondered if the County VSO filed for me at all. It appears he did, but it may have been a year later. I know that I went there to file within days of the death. I was told to check back within a year. I went through a driving rain storm on my lunch break, only to be asked why I was there. I told him that he told me to keep my claim open. He told me that he didn't tell me that. So, I left. It may not be necessary, but I will get a handwriting analysis if it comes to that. The date is very obviously different from other numbers that he wrote. I think he patched it up or someone did and filed it when he saw that I showed up within a year. I even looked up the date to see if it fell on a Sunday in hopes that it would catch them.

Now, I see where VA has denied me for DIC, because I didn't answer with evidence proving Don had heart problems in Viet Nam at the age of 18 and 19 yrs old. It states that they called me three times and no answer. I know that they did not call three times ever for that reason. I had an answering machine and paid attention to who called. They did call to tell me that my husband had two volumes of a C-file and they could only find one volume. It was Waco and that explains that. At the BVA hearing, Don wondered why he could only get a few pages when the Washingon DC hearing judge had a huge file on Don. That part about only getting a few pages was on his BVA appeal to start with. He did get service connected at zero per cent for a heart condition that he linked to ptsd or agent orange Nehmer. The rating conceded to AO, but at the time AO did not cause it. Yet VA did not put his name or mine on a Nehmer List. On Ptsd they non service connected him at 30%. They called it Dysthymic Disorder and treated him for ptsd.

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"Now, I see where VA has denied me for DIC, because I didn't answer with evidence proving Don had heart problems in Viet Nam at the age of 18 and 19 yrs old. It states that they called me three times and no answer."

Was this a recent letter from VA?

GEEEZZZ_ these vets established their IHD nexus with their service in Vietnam! Inservice symptoms or DX should not even be a consideration for these claims.

"That part about only getting a few pages was on his BVA appeal to start with. He did get service connected at zero per cent for a heart condition that he linked to ptsd or agent orange Nehmer. The rating conceded to AO, but at the time AO did not cause it. Yet VA did not put his name or mine on a Nehmer List. On Ptsd they non service connected him at 30%. They called it Dysthymic Disorder and treated him for ptsd."

Even at zero percent, that rating decision makes the claim fall under Nehmer for a potential accrued and staged IHD rating- as long as the "heart condition" was IHD.

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It sounds like the NVLSP now knows about the case. They do track Nehmer cases, and as a result, you can expect the VA to try to meet the required times. If they don't, NVLSP has the option to go back to court, and the court can penalize/sanction the VA (contempt of court). VA upper management really, really doesn't want this to happen. NVLSP recently had a bit of a problem with communications, and discovered that several months of voice mail had been overlooked. I and others got a call concerning this in the last few weeks. I would advise your friend with the delayed claim to contact the NVLSP.

My IHD related claim languished for quite some time, until - - -

I asked my lawyer to send the VA a letter last fall telling them to adjudicate with the information on file, and somewhat later, NVLSP hit the VA with a "how come" letter concerning the VA's failure to place my claim on the Nehmer list.

Evidently, the VA now had a "hot potato" on it's hands. The VARO promptly (for the VA anyway) sent the claim to another VARO's Nehmer review process. That completed with an award and significant retro about two to three months after the claim file, etc. was received by the Nehmer review team. I was surprised that the review also granted several "implied" claims. There are still some "issues", as they chose to avoid awarding a couple of things at other than 0%, in order to stay below the 160% level. NOD again - sigh!

For the third or fourth time this year I recently got the standard first letter "VA received your application" and "don't contact us, VA will contact you". I was happy to at least hear from VA. This week I got a letter from NVLSP notifying me that the Nehmer complaint was made for IHD Service Connection for my deceased husband and DIC. No mention of Nehmer from VA yet. The letter states that VA has about three months to decide if VA agrees and if they do, then VA has thirty days to pay. I hope it works that way!! I had been told that VA had a time limit to begin re-adjudicating the claim and I just thought it would fall back to normal processing as usual. I was happy to see dates and time limits. My friend who filed the same day in a similar situation over a year ago is still waiting. Her claim was recognized as Nehmer a year ago and all her evidence was in and VCAA filed in January or February.

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Chuck- I expect an award, but like you,I bet it will need a NOD too!!!!

I intend to ask them to CUE themselves if the award is wrong and then if there is no response within a few months, I will file NOD.

I havent been denied or anything yet but as Dr Phil says

"Past behavior predicts future behavior" so I expect ,my Nehmer claim to be f---ed up.too.

You and NSA Saigon and a few others in this forum have certainly shown that you both have a great handle on these claims.

I expect problems will come and possibly a windfall of AO awards all at once over the next few weeks or so.

Most I assume will have a decent retro which would make fighting them over rating errors etc a little easier when there is some Nehmer cash in the bank already.

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