Nod For Eed For Dmii Denied

[Papa]

I just received notification that my NOD for an EED for DMII was denied. The main reason was that after I was initially denied for DMII, I did not appeal within 1 year. I missed the deadline by a month and a half (does not matter). I then ask them to re-open the claim, and they did and granted me 20%, but made the effective date the date the claim was re-opened 8-28-08. In their denial they are saying that my earliest Dx was May 2006. I honestly thought that when I first put in a claim for DMII, they would test me. Wrong. I'm more upset with myself, but it really gets me that they take over 2 years for something like this. To tell me that I missed a deadline. Yes, I'm a Vietnam Vet. Does or would Nehmer play a role in my case?

Papa

[Philip Rogers]

Personally, I would look for an error in their first decision. You might also check your medical records for labs that show the changes earlier, that they may have disregarded. As to Nehmer, I defer to Berta as our expert.

pr

[jbasser]

I think Nehmer would only be a player if you had previously filed a claim and had been denied. The would have had to back up to the date of the original claim.

Keep on researching this. There could be something in there that may help you.

J

[Berta]

Since you never appealed an initial denial for the DMII it might fall under Nehmer.

You could rebutt the EED with the Nehmer regulations but then again I would think possibly you could also file a CUE claim as well on the past denial.

I agree with both jbasser and Philip.

Look over the VCAA letter you originally received too. As well as the past decision.While an error in a VCAA letter is a Duty to Assist error and not a CUE, that might give you some backup for any response or rebuttal you make.

Are you able to scan and post the letter you just got? (Cover name,address C file number etc.)

The devil can be in the details, what I mean is it pays to carefully read the exact wordings of these denials and awards many times to see what their rationale was based on.

It helps so much whenever someone here can scan and attach exactly what VA sent to them.We can respond better that way.

I asked NVLSP to check my EED for my husband's IHD.

A statement they made,in the Nehmer RO decision I sort of skipped over at first ,as the decision was quite lengthy.

After a few days had passed I was able to focus better on the decision and then certain things popped out that I could appeal.Dont know if I will.Only one thing would possibly alter the retro.

But my main concern too is over an EED.

This statement from VA you posted here concerns me.

"In their denial they are saying that my earliest Dx was May 2006. I honestly thought that when I first put in a claim for DMII, they would test me. Wrong. "

In my case VA used,not the date the entitlement arose, in my way of thinking, but instead used the date of a VA Review of my husband's PTSD.(which had nothing to do with my Nehmer claim)

I was glad I FTCAed them because their statement indicates someone at VA picked up on my husband's misdiagnosed heart disease 7 years before either the veteran or I knew he had it. That is a scary thought.

My point , like yours is, what is the proper EED.

It looks to me that your entitlement arose on May 2006 based on what you posted BUT

"I honestly thought that when I first put in a claim for DMII, they would test me."

Didnt they give you a C & P exam?

Do you have copies of the actual results of any C & Ps they did.

The new Nehmer guidelines are specifically for IHD,Parkinsons, and Hairy Cell B.

But regardless-I dont think anything changed the basic Nehmer considerations at all regarding EEDs.

Did VA mention 38 CFR 3.309 at all in the decision?

I will see if I can find a similiar case at the BVA but it sure would elp if you can scan and post the decision here.

In my case, if NVLSP says the EED is right,under the new Nehmer AOs, so be it.But I want to know why- if that exact same situation comes up here at hadit.

Maybe their response to me will help you too.

I will look for a similiar case at the BVA as yours and post here what I find.

Do you have a vet rep?

"In their denial they are saying that my earliest Dx was May 2006. I honestly thought that when I first put in a claim for DMII, they would test me. Wrong. "

.

Edited February 21, 2012 by Berta

[Berta]

I forgot to ask-

can you scan and post the original denial too?

If CUE was committed in that past unappealed decision, we would be better able to determine that, once we see the actual denial and rating sheet.

I am assuming that the DMII was at a ratable level, and listed as NSC with a percentage, on the older rating sheet.

[Berta]

http://www.va.gov/vetapp05/Files1/0502761.txt

This was a AO DMII claim and the BVA quotes the EED regs in it.

“Here, even the veteran's own testimony was that he first

developed symptoms of diabetes consisting of frequent

episodes of thirst and frequent urinary urgency and that

diabetes was first diagnosed in 1982. So, there could not

have been any claim for service connection within one year of

his service discharge in 1972. Moreover, even assuming,

without conceding, that diabetes first arose in 1982, under

38 C.F.R. § 3.816©(2), the proper effective date is not the

date the disability arose but the later of either when it

arose or when the claim was filed, i.e., May 24, 1993.”

in part:

“The veteran was notified by letter of March 31, 1994, of a

March 12, 1994, rating decision that denied service

connection for diabetes mellitus. However, no appeal was

taken from that rating decision and, so, it became final.

See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.200,

20.1103.

After the veteran filed an application to reopen the claim

for service connection for diabetes mellitus in September

1999, he was notified in February 2000 of a rating decision

that month which denied reopening of the claim.

The veteran again applied to reopen the claim in November

2000, following which the February 2003 rating decision being

appealed granted service connection for diabetes mellitus, as

associated with inservice herbicide exposure, and assigned a

20 percent disability rating, both effective May 24, 1993.”

Although this vet did not successful gain a better EED than May 24,1993, and the BVA case was denied,

this case does show that he was successful on the Nov 2000 re-open,to gain the better EED of May 1993.

During his appellate period from the Nov 2000 reopen, DMII on May 8 2001, went onto the AO presumptive list.

There are successful CUE claims here as well as vets who have obtained better EEDs for different types of claims.

It is the actual wording of VA decisions that controls how to approach any

challenge to a EED.

[Chuck75]

To "Papa"

The problem may be in the details. Your case "should" be looked at by the Nehmer class action lawers. You claimed DMII, and the VA denied it. The reasons for the first denial are what can be critical. If they denied the claim saying you did not have proof of DMII, then it's possible that they denied "due process" and so forth, since they did not schedule a C&P or other action to determine that you did or did not have it. On the other hand, using the year after service period, which they often mention as a boiler plate insertion in a denial, is misleading, and usually incorrect when it comes to Nehmer cases. There is another go around concerning DMII and IHD, in that IHD related conditions often occur before DMII reaches diagnotic levels. The VA's own documents admit this, yet the RO's often try to downplay and ignore the facts.

I'd suggest that you should contact the Nehmer class action lawyers. It's possible that the VA did not include you in the list that the court required the VA to furnish to the lawyers. (I wasn't on it, even though I already had an award (presumptive, A/O). part of my A/O related claims were previously denied, deferred, and stuck in VA limbo. When the class action lawyers contacted the VA concerning the problems with the "list", things started moving again.)