Need Advice On Eff Date Of Change Regulation

[x020574]

RE: 38 CFR 3.114 Change of Law - Effective date of change which states :

• If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request.

I was Dx with IHD and had CABGx2 Jun2010

IHD added to presumtive list Sep2010

I filed an IHD claim Oct2012

- it reads to me I might be entitled to 1 yr retro, some responses I got said it I don't get the yr retro file a CUE and state the 38 cfr 3.114 regulation. Some said send in a 21-4138 now while calim is pending in review status and request the law be considered... I'm afraid if I do that my claim will go back on the bottom of the stack.

NOTE: my IHD claim was rolled into my Hearing increase claim which effective Feb2012. Should I leave it alone and wait to see if it is a CUE?

[Berta]

"it reads to me I might be entitled to 1 yr retro, some responses I got
said it I don't get the yr retro file a CUE and state the 38 cfr 3.114
regulation. Some said send in a 21-4138 now while calim is pending in
review status and request the law be considered... I'm afraid if I do
that my claim will go back on the bottom of the stack."

Can you give me a hadit link to those posts? I need to read them again.

This is the actual regulation you
cited:

http://www.law.cornell.edu/cfr/text/38/3.114

"my IHD claim was rolled into my Hearing increase claim which
effective Feb2012."

Do you mean they awarded the Hearing loss claim with an effective date of February 2012?

And that they deferred the IHD/CAD claim?

"Should I leave it alone and wait to see if it is a
CUE?"

I think you need to go to our CUE forum to understand what CUE is.

I assume you got a VCAA letter that said you needed to prove your exposure to the AO in Thailand. Does the VA have that information and do you fall into the new Thailand Directive I posted a link to days ago....forget where.... for you?

[Berta]

PS, the VA usually does a fairly good job in awarding the proper EED (effective dates of entitlement).

They give a ratioanale in their decisions as to how they used the date the award is for.

You can appeal the EED if you disagree with it and tell the why it is wrong,with evidence.

[x020574]

"it reads to me I might be entitled to 1 yr retro, some responses I got

said it I don't get the yr retro file a CUE and state the 38 cfr 3.114

regulation. Some said send in a 21-4138 now while calim is pending in

review status and request the law be considered... I'm afraid if I do

that my claim will go back on the bottom of the stack."

Can you give me a hadit link to those posts? I need to read them again.

This is the actual regulation you

cited:

http://www.law.cornell.edu/cfr/text/38/3.114

"my IHD claim was rolled into my Hearing increase claim which

effective Feb2012."

Do you mean they awarded the Hearing loss claim with an effective date of February 2012?

And that they deferred the IHD/CAD claim?

"Should I leave it alone and wait to see if it is a

CUE?"

I think you need to go to our CUE forum to understand what CUE is.

I assume you got a VCAA letter that said you needed to prove your exposure to the AO in Thailand. Does the VA have that information and do you fall into the new Thailand Directive I posted a link to days ago....forget where.... for you?

'Can you give me a hadit link to those posts? I need to read them again.' - responses were not from this forum/HadIt, it was on a VBN YuKu.

'Do you mean they awarded the Hearing loss claim with an effective date of February 2012?' - niether contention, hearing increase of IHD has been decided yet, the claim, with both contentions, is in review status.

'I think you need to go to our CUE forum to understand what CUE is.' - I have read it and I think given the dates of dx, law and IHD claim, I believe if the rater does not rule in my favor with the retro, especially after I request that they consider it, it should be a CUE. I will follow up with a DAV VSO for claification regarding my dates and application of the law.

'I assume you got a VCAA letter that said you needed to prove your exposure to the AO in Thailand. Does the VA have that information and do you fall into the new Thailand Directive I posted a link to days ago....forget where.... for you?' - I did NOT get any coorespondence yet, for any reason... I did submit Jet mech training records specifing flight line duties, test cell duties, base aerial maps showing work locations, sleeping quarters (all with close proximety of the base perimeter at Korat AFB, Thailand dury 1972-74 TDY assignments. The claim is still in develoment stage (review). YES, it has the required evidence to file a direct cause claim, dx of IHD caused by exposure to herbicides. Since filing IHD (that was added as a contention to the Hearing Increase claim) I have learned that my travel documents clearly state that I had an airplane stop in the RVN. I also submitted those documents. Had I known about the stop in RVN, I would have file a fully develop claim for IHD. The dx and CABG was done at a VAMC hospital.

[Berta]

“Since filing IHD (that was
added as a contention to the Hearing Increase claim) I have learned
that my travel documents clearly state that I had an airplane stop in
the RVN. I also submitted those documents. Had I known about the stop
in RVN, I would have file a fully develop claim for IHD. The dx and
CABG was done at a VAMC hospital.”

Yow, that will put the IHD under
Nehmer!

I am sure the Thailand service AO dates
are in the link within this hadit link:

You have probably already checked those
dates and are within them.... I have to leave and dont have time to
check them myself .

But I will email NVLSP right away to
see if they still need to hear from Nehmer vets, as they won Nehmer
and did a great job of making sure us Nehmer claimants got the
correct EED for our IH D claims and I will get back to you on
that........

I have to commend you...I love Barry
White and was listening to his song”We got it Together”
yesterday.

YOU have got it together here on this
claim and did the leg work that these types of claims take.

That pit stop put you “Boots on
Ground, Vietnam”!!!!

I am member of Blue Water Navy Vietnam
Veterans Association and some BWN vets have proved exposure to AO by
finding they did fly on a plane to stop over in Vietnam, if only for
a few minutes.

It is “as likely as not” they might
have even used a head during that stop over or walked on the tarmac
to stretch their legs.

This is GREAT news. Make Sure the VA knows of the incountry Vietnam stop over......YIPPEE to that!!!!!

Edited February 25, 2013 by Berta

[x020574]

Thanks Berta,

I don't think I fall under Nehmer because I did not file a claim for IHD prior to the date IHD became persumptive (Sept/2010). I had dx and surgery (Jun/2010) before that but my IHD claim date was not until Oct/2012.

I did file for Hearing increase in Feb/2012 (in review status) and the IHD filed in Oct/2012 was added as a contention to the Hearing increase. If the VA had no way of knowing of the dx prior to Oct/2012, it is not the VAMC obligation to inform the VA and I did not know of the Public Posting alerting Thailand vets that they may be entitled until Aug/2012 when I went on the web to see if I can find out the status of my Hearing Increase claim.

I only know that the two had been rolled into the same claim because when I look at the claim on eBennies, it states 'Bi-Lateral Hearing increase, IHD new', rview status over due, was supposed to be completed Feb 4, 2012.

I hope I'm worng, that's why I was asking about the 3.114 Change of Law clause, maybe I can salvage something for my ignorance.

[Berta]

I have to leave right away....but here is the email response from NVLSP.(Rick Spataro Head Nehmer Lawyer) I told him I had given you the Thailand info and just learned today you are Boots on ground!!!!!

If you question the EED,for the AO IHD when that deision comes , this email addy is now working again.

"Hi Berta,

I hope you’re doing well. Our email address is still Agentorange@nvlsp.org . I know our IT folks have been working on our servers over the past several days and doing something with our email accounts, so that’s probably why your email got bounced. If the veteran you are helping ultimately gets awarded an incorrect EED, feel free to have him contact us.

Rick"

"I don't think I fall under Nehmer because I did not file a claim for
IHD prior to the date IHD became persumptive (Sept/2010). I had dx and
surgery (Jun/2010) before that but my IHD claim date was not until
Oct/2012."

June 2010 Might be the proper EED. Hard to say yet....Was the DX done at the VA?

Edited February 25, 2013 by Berta