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Nehmer Complaint

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Susan

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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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No, it was not a new letter about DIC and evidence. It was my application for DIC and the rating etc from 2001. I applied in 2000 and the copy of my DIC application has 2001 and it appears the date was changed on it. Probably when I returned in 2001 to keep my app open and was sent away. Just hope it does not knock me out of a year of DIC. There may be enough other information in the C-file that will protect that year. You may remember my posts earlier in the year about how I am not allowed to have the C-file, because I remarried. Believe me, I have tried several ways to obtain what they have now. FOIA with NVLSP got it for NVLSP. Later on, I will be able to get the files. So, I had no idea whether the C-file actually contained an application for DIC.

Berta wrote:

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.

Yes, his heart condition was IHD and he had a Triple bypass in 1995. First diagnosis probably began with angina several years before the bypass. Several Angina diagnosises are on the list in the NVLSP VA training guide. The death Cert also verifies he had IHD.

Chuck, It is good to know that the VA will try to finally get around to actually adjudicate the claims. I was really surprised at the deadlines that they were given. I will advise my friend to check back with NVLSP. A couple of months ago, she was told to try to be patient. At this point, checking every few months should be advisable.

It is also good to know that VA addressed other "implied" issues. I hoped that the VA would be required to do that.

Thank you Both for keeping us informed and for helping.

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Susan-is it possible you sent them a completed 21-530 with SC noted , prior to the DIC Application and they sent you the app after that first year after death had expired?

As within:

page 38 of 167 in the Nehmer Training Guide

“VA Form 21-534 must be considered for DIC if:

• Only death pension (NSC) was claimed or

• No distinction was made between death pension and DIC

VA Form 21-530, Application for Burial Benefits, must be considered for DIC if:

• SC was indicated on VA Form 21-530 and VA Form 21-534 was received within one year1

• VA’s failure to provide VA Form 21-534 after receipt of VA Form 21-530 with SC indicated2

• In each instance, the effective date for the DIC benefits is the date the VA Form 21-530 was received3

• Receipt of attachment to Social Security Application, VA Form 21-4182, Application for Dependency and Indemnity Compensation or Death Pension, may establish the date of claim “

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

Or is it possible that you applied for SSA survivor's benefits and that SSA app preceded the 21-534 yet comes within the last statement from the Training Guide?

Edited by Berta
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That could be what happened. The County VSO may have filed for a death pension first and then submitted the DIC app later. I am pretty sure that I never submitted SSA forms to VA. He drew Social Security for a very short time, but that was cut off several years prior to his death. His SSA was cut off when alot of veterans Social Security was cut out. His SSA attorney was working on his case and the day that Don was buried, I got a call and she gave her condolences and stated that "This should get it." But,even death made no difference. This attorney had gotten the SSA for him the first time.

I hope there is something in the files that will cover that first year. I made a copy of the form names listed and will watch to see if I come across anything I might have in storage.

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"He drew Social Security for a very short time, but that was cut off several years prior to his death. His SSA was cut off when alot of veterans Social Security was cut out. His SSA attorney was working on his case and the day that Don was buried, I got a call and she gave her condolences and stated that "This should get it." But,even death made no difference. This attorney had gotten the SSA for him the first time. "

That is very disturbing.

I know of no disabled vet whose SSA was ever cut off.

Did you formally apply for Survivors Benefits with SSA?

I forget the SSA Survivor's criteria as to age etc. Maybe you did not meet their criteria????

A friend of mine, who was divorced from her husband now receives her SSA under his work period but then again I think it depends one's age - not sure.

The SSA has an excellent web site for info on these matters.

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The age was one requirement not met. I was 43 at the time. Full time employed. No children. Because of the loss of his social security, they would not even acknowledge the heart condition and expectted repayment of three or four months that they "overpaid" him. We thought that the checks would stop. But, when the checks continued we thought that the heart ailments were the reason. Then four months later they demanded repayment for their "error". I always felt that he was caught between SS and VA with neither wanting to award him a benefit, except for treatment at the VA clinics and hospital. He got a waiver for the SS repayment, so they did not pay the death benefit either. I got two more waivers after he died. The last time that I called Social Security several years ago, I was told to keep requesting waivers.

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I received a phone call from the VA today. They verified that I had remarried and stated that I would receive DIC up to the month of remarriage. I asked questions and all that they could tell me was that my claim was being rated and it would go to be approved. Fifteen days was mentioned. Not sure if that was approval to notification or notification to payment.

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