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Berta

Nehmer Claim Stats Update

Question

Someone posted this at VBN yesterday:

They began with, according to the VA Workload report with 148,202 claims. (November 2010)

As of the November 28th workload report they have finished 131,709 claims (November 2011)

This would represent approx. a completion rate of 89%.

Which means they have about 11 % left to be done.

I a trying to verify that info but it cold be correct.

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Hello, I am new to this site. I am a widow of a vet exposed to agent orange. In 1984 the VA called my vet in for a medical screening. One of the things that they found was "intraventricular conduction defect". This was listed on the letter they sent to him after his examination. My vet was told that his heart was wired backwards and not to worry about it. My vet died Sept. 1990 , the autopsy report revealed "severe focal arteriosclerotic cardiovascular disease". I filed in 2007 for DIC and was denied of course. Then I filed for reajudication of my claim and am still awaiting a decision. I am a Nehmer, and did register with the NVLS last year. I am wondering if I will be given an earler effective date due to the "84 discovery of Intraventricular conduction defect. According to google that is part of IHD early stages. The Nehmer manual says they will give attention to "the date the condition arose". I'd like some of your opinions on this.

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I believe this is a case that falls under Berta's area of expertise. Without knowing more, I'd suggest you and who ever represents you need to get a full copy of VA treatment records, as well as the VA "C" file.

A claim, if made in 1984, precedes the 1985 Nehmer date. I don't know how pre 1985 evidence is dealt with. If your vet was treated by the VA, the medical records may show something that is significant to a lawyer.

When did you file for "readjucation?

Hello, I am new to this site. I am a widow of a vet exposed to agent orange. In 1984 the VA called my vet in for a medical screening. One of the things that they found was "intraventricular conduction defect". This was listed on the letter they sent to him after his examination. My vet was told that his heart was wired backwards and not to worry about it. My vet died Sept. 1990 , the autopsy report revealed "severe focal arteriosclerotic cardiovascular disease". I filed in 2007 for DIC and was denied of course. Then I filed for reajudication of my claim and am still awaiting a decision. I am a Nehmer, and did register with the NVLS last year. I am wondering if I will be given an earler effective date due to the "84 discovery of Intraventricular conduction defect. According to google that is part of IHD early stages. The Nehmer manual says they will give attention to "the date the condition arose". I'd like some of your opinions on this.

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Yes, and to add to CHuck's suggestion- since an autopsy was done, make sure you have a copy of that (and that VA does too)

The Date of Sept 25, 1985 is important is within this statement ( page 11 of the Nehmer Training Guide)

Definition

All other claimants and all periods of service for benefits.

Nehmer class members are Vietnam Veterans who served in-country and have a covered herbicide disease, or the surviving spouse, child, or parent of a Vietnam Veteran who died from a covered herbicide disease.

Effective Dates

The date the claim resulting in award was filed or date entitlement arose, whichever is later, but in no event prior to the effective date or the regulatory presumption of service connection.

The date the original claim was filed or arose, whichever is later, even if it was before the effective date of applicable regulatory presumption, and without regard to finality of prior denial(s) (Contrary to 38 U.S.C. § 5110(g), 38 C.F.R. § 3.400).

Effective dates can go back as far as the date of claim that was pending on September 25, 1985 (The date the rules implementing “Veterans’ Dioxin and Radiation Exposure Compensation Standards Act,” Pub. L. 98-542 (Oct. 24, 1984) were effective in the Code of Federal

However ,in your case, if you formally filed for DIC within a year after your husband's death, and the claim is granted , then they should award DIC back to the date of his death.It appears that you filed years after his death-

I need to find that part of Nehmer-not sure when the DIC retro would be paid to----

Also if there is evidence of any accrued benefits under Nehmer that would possibly be granted as well.But accrued claims derive from denied past claims in a veteran's lifetime that now come under Nehmer.

"My vet was told that his heart was wired backwards and not to worry about it. My vet died Sept. 1990 , the autopsy report revealed "severe focal arteriosclerotic cardiovascular disease"."

Was all of his VA health care from the VA? Did they treat him at all for this cardiovascular condition prior to his death?

If not----I hesitate to ask this- but when he died did you sue them for wrongful death or file a 1151 claim as well as a direct service connected death DIC claim ?

"Then I filed for reajudication of my claim and am still awaiting a decision. I am a Nehmer, and did register with the NVLS last year."

Do you mean you re=opened the claim under the new AO presumptives?

"The Nehmer manual says they will give attention to "the date the condition arose". I'd like some of your opinions on this."

That statement ,that is basis 101 VA case law, is one of the most confounding statements in our VA regulations.

It means a date, by virtue of established medical evidence ,when a condition arose.

When a vet gets SSDI solely for a SC condition, then the date entitlement arose can be determined from the SSA records sometimes and is more favorable that the date of the actual VA claim.

In my Nehmer case I am asking for an IHD rating from 1986 to date of my husband's death.

Although his IHD was never diagnosed or treated by VA (I succeeded in a wrongful death case)

the VA medical records evidenced his IHD in 1986 due to a EKG that was never acted on by the VA so thus that is my Earliest effective date for accrued benefits purposes under Nehmer.

In your case the VA would have to determine if the intraventricular conduction defect was actually the first manifestations of his IHD.

"According to google that is part of IHD early stages." It is good that you did that homework.

But you might need an independent medical opinion for a proper earliest effective date as to when entitlement arose.

"I am a Nehmer, and did register with the NVLS last year."

Did you get a formal Nehmer letter from VA and were you able to send them whatever they requested?

Have you received emails yet from an NVLSP attorney assigned to your claim?

We had a vet here whose EED garnered him almost half a million dollars.

The EED ( based on date entitlement arose) is where VA has made many errors per NVLSP and this is what they will focus in on when you get the decision.

I will find the DIC dates under Nehmer and add to this post.

Edited by Berta

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Your claim might be a Footnote One situation like mine is.

Footnote one can be searched here. Basically it involves this part of Nehmer- maybe this is what you meant be re-adjudication.

“The Nehmer Court has held that the stipulation requires VA to readjudicate all cases in which VA previously denied a class member’s claim of service connection for a new presumptive disease. A prior denial based on lack of diagnosis rather than lack of nexus falls within the scope of the stipulation’s requirement for readjudication. This differs from claims in which there was no prior claim or class member status (i.e., no in-country Vietnam service, no “Veteran” status, etc). “

Page 16 of Nehmer TL

As to the DIC EED:

"EFFECTIVE DATES FOR RATING PURPOSES

The effective date for retroactive claims must be one of the following dates:

• The later of the following:

o The date VA received the claim, or a date prior to September 25, 1985, if the claim was pending or on appeal on September 25, 1985, or

o The date the disability arose

• The day following the date of the class member's separation from active service, if filed within one year from the date of separation

The effective date for Dependency and Indemnity Compensation (DIC) claims must be one of the following dates:

• The date VA received the claim, or

• The first day of the month of the Veteran’s death, if filed within one year from the date of the Veteran’s death

NOTE: If the class member’s claim for DIC for the death was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered herbicide disease that caused death, the effective date of the award will be the later of the date such claim was received by VA or the death occurred (38 C.F.R. § 3.816(d)(2)).

NOTE: 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114(a) do not fall under Nehmer."

Page 17 of the Nehmer Training Letter.

Did your husband have a claim pending at death for what could be construed as a IHD claim?

Did he ever have a claim denied in the past for IHD?

If not I believe the EED in your case will be based solely on the date your DIC claim was filed as accrued benefits derive from decision regarding past claims the veteran made in their lifetimes.

After many years pass often a veteran and then their survivor will forget what claims they might have filed in the past with VA and with the C file, you can determine if he did file a claim for any heart condition that was denied yet could possibly award you accrued benefits under Nehmer.

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Footnote One is explained here by Rick SPataro , NVLSP attorney, in a post I made dated March 9th.

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