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?

[Philip Rogers]

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.

You may be if your surgery was done at the VA. You stated that you "had dx and surgery (Jun/2010) and IHD became presumptive in (Sept/2010). A hospitalization is considered a claim and the VA is supposed to consider that as such, so that would supercede your Oct/2010 claim. jmo

pr

Edited February 25, 2013 by Philip Rogers

[Berta]

You sure might be right XO2057 .and maybe you are not under Nehmer ......This is from my Nehmer letter:

"This case was identified as a
potential Nehmer class member case based on the addition of Ischemic
Heart Disease,Parkinson's disease, and B Cell Hairy Cell Leukemia to
the list of diseases presumptively associated with exposure to
certain herbicide agents used in Vietnam.
Entitlement to potential
retroactive benefits applies in all cases wherein VA received a
claim,or a claim for benefits was pending, or wherein VA denied
benefits ,on or after September 25,1985 and before August 31, 2010.
This case qualifies for the special review based on a possible prior
VA benefits claim for one of the three new presumptive diseases.”

But I do agree with PRs statement

and the June 2010 surgery might be considered as a pending claim before August 2010.

[x020574]

dx and surgery was done at San Franicsco VA medical center i Jun/2010

I sent copy of travel docs to DAV/Boston and asked the VSO to submit them on my behalf. They did and c.c. me on the coorespondance - so 2 of us know they should be in the Cfile.

This is sure worth looking into... hope I am wrong and it turns out to be Nehmer!!!

I'll keep you posted...

[Berta]

Either way Nehmer or not, NVLSP will be glad to check the decision for the EED when it comes.

Nehmer under the new AO regs is important mainly if the veteran had IHD,PArkinsons, or Hairy cell be denied in a past VA decision.

Or listed as NSC. But becomes AO SC. In that case the EED is back to the past denied or NSC claim.

[x020574]

Thank you Berta and PR... I will certainly follow up with NVLSP when the time comes... and post back with to you with news however it goes!