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Nod For Nehmer Claim For Ihd


VetsWidoFl

Question

A NVLS atty advised me to file a NOD for my claim for retro DIC benefits based on my spouse's death in

2007 from IHD.

He advised me that my husband's 30% award for heart disease in 2001 {which he never filed a claim for}

but which the VA linked to his AQ DMII, should have been at the 80-100% rate.

The VA used the same medical evidence to increase the award to 100% in Dec 2004.

Therefore, the atty wants me to file a request for an increase rating under Nehmer for the heart

diease award in 2001.

I understand my denial of retro benenfits because my spouse "filed "for heart disease during his lifetime.

But, what about the increase rating???? Could this be done under something called CUE???

My "usual" VSO is not enthused.

Appreicate any guidance. I am soooo lost in this process.

VetsWidoFl

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Since the Nehmer lawyer didn't mention or advise CUE, you have one year after the date of the Nehmer award letter to NOD it and raise the issue of a proper retroactive rating.

"He advised me that my husband's 30% award for heart disease in 2001 {which he never filed a claim for}

but which the VA linked to his AQ DMII, should have been at the 80-100% rate."

I don't understand how the lawyer arrived at that rating estimate but he apparently was familiar with the claim.

In the NOD ,refer them to and attach copies of any medical evidence that supports what the NVLSP lawyer said as to a proper rating of 80 to 100%.

It might help to directly associate that medical evidence to the VA Schedule of Ratings under IHD in the NOD.

We have the entire Schedule of Ratings here at hadit.

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to add here:

Yiou stated :

“The VA used the same medical evidence to increase the award to 100% in Dec 2004. “

If it was the same medical evidence that they had in 2001, now I see the lawyer's point.

And that could definitely be the basis of your NOD.

I assume you mean he was awarded 100% solely based on his heart disease and this prior award did not involve DMII.

Did he receive SSDI solely for heart disease and did the VA know that, if he did?

I am a little surprised the lawyer didnt suggest filing a CUE on the 2001 rating but NVLSP is more familiar with this then I am.

So I then have to assume the 2001 decision cannot be cued because it led to the 2004 award and this is why NVLSP didnt mention CUE.

I know how miserable it can be to deal with these issues.

I discussed a new 1151 claim with NVLSP as we discussed my Nehmer award and the lawyer saw merit in what I intended to do. That was months ago and I am so burned out from being a claimant for12 years, I cant seem to even want to read the decision and prepare that additional claim.

Some of these issues Vet reps really dont want to help much with and the truth is, some issues are so involved that they cant spend the extensive time involved in some claims issues . We, the claimants, know our claims better then any rep does anyhow and we are willing to spend the time and research it takes. .

You have a fairly simple task- “The VA used the same medical evidence to increase the award to 100% in Dec 2004. “

That means the 30% rating was wrong.

If I were you I would send them with the NOD, a copy of their evidence list from the 2001 award and the rating decision and also send them the evidence list and rating decision that generated the 100% award and ask them to prepare a retroactive rating and payment based on the enclosed factual evidence that showed the medical evidence warranted a higher rating in 2001.

I assume the Nehmer decision continued the award of 100% for your husband's heart disease yet made a retroactive payment but I dont understand what the retro was for. DIC?

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After I found some of our past correspondence- I need to be sure here as the info now seems to be conflicting-

My advise for the NOD is based on one disability - the IHD :

“The VA used the same medical evidence to increase the award to 100% in Dec 2004. “

I assume this award was solely for IHD as well as the 30% 2001 award was solely for IHD.

Is that what those awards were for?

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Thank you for your responses. To clarify, I hope, my original claim was for retroactive.DIC benefits based on my husbands' long history of heart disease.

I understand now that his HBP and Hypertension while on active duty cannot be considered IHD. He was awarded 0% SC upon discharge in 1975 for these two conditions. He received early SSA in 1995.

He did not file another claim until 2001 for DMII. The VAexaminer noted his by pass surgery in 1995 , old myocardial infarcts and Mets 7 to award the 30% based on his cardiology medical records and 20% for Diabetic neuropathy His further claims were related to renal faiure /amputations due to his diabetes.

In 2004, he was awarded 100% for End Stage Renal disease[related to DM!!], 100% for Coronary Artery , plus special monthly compensation and Aid and Attendance among others.

The atty did mention something abt "substitution" to me but there were no outstanding claims when my hero died. in 2007.

Again, I appreciate your guidance and thank you for directing me in the right path.

VetsWidoFL

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