Thailalnd Ihd Presumptive Approved Cue Or What ?

[jcolwell]

Phoenix RO called today after I spoke to appeal center on Friday.

I am already 20 % for DM2 presumptive 10/2013. They approved today after 2 year wait for IHD 30 %. I have a ICD and it is documented all over the record.

They retro me back to 4/2011 claim filing date. Under the Nehmer liberalizing rules I believe my retro date should be 8/2010 since I filed with in one year of the regs.

Suggestions on how to proceed. Is this a Cue ? I will see VSO but he has not been much help.

Thanks

[Berta]

I think you need to read page 41 of:

http://www.purpleheart.org/ServiceProgram/Training2013/15-M-Nehmer%20Phase%20II%20%20-%20March%202013.pdf

And to check out those citations.

I sure think they owe you more retro

if

this is a 'Nehmer' award.

Or email agentorange@nvlsp.org.

But...I dont understand this....did the VA specifically say your award falls under Nehmer ?

What rationale did they give for the EED?

Did you have any incountry Vietnam service as well as in Thailand?

Edited October 7, 2013 by Berta

[jcolwell]

No it is not Nehmer. The claim would fall under the Liberalized law regulations of 8/2010 as noted below. he explains it better than I can. (38 CFR 3.114,). We got this moving due to appeal center who we called last week. We have contacted them this am but since they are closing at COB today we might again get to wait a long time. Thanks Berta

A pacemaker requires a 100% for 2 months and then can be rated as low as 10% unless the heart disease symptoms would justify a higher rating.. The AICD requires a 100% period.

And yes, if you applied within one year of 8-1010, your effective date would be 8-2010 with comp beginning on 9-2010. Has your claim been pending that long? (This is not required under Nehmer, but rather under 38 CFR 3.114, the liberalized law regulation. I'm not really sure that Nehmer applies to vets other than those who served in Vietnam itself, but if it did apply it would justify an effective date from the date you claimed IHD or as ar backas 1985 at the earliest.)

Wait for your decision letter.

Ivac

[jcolwell]

No not VN , filed as direct exposure as security augmentee in Thailand 1970. No explanations till paper work arrives per them. JC

[Berta]

Sorry Jcolwell------I know You told us that before....I am getting forgetfullll ( didnt want to say I am getting old haha)

BUT Am I reading the wrong citation?

CFR § 3.114

Change of law or Department of Veterans Affairs issue.

(a) Effective date of award. Where pension, compensation, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran or child of a veteran with covered service in Korea is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. Where pension, compensation, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran or child of a veteran with covered service in Korea is awarded or increased pursuant to a liberalizing law or VA issue which became effective on or after the date of its enactment or issuance, in order for a claimant to be eligible for a retroactive payment under the provisions of this paragraph the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. The provisions of this paragraph are applicable to original and reopened claims as well as claims for increase.

(1) If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue.

(2) If a claim is reviewed on the initiative of VA 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 administrative determination of entitlement.

(3) 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.

(Authority: 38 U.S.C. 1805, 1815, 1821, 1832, 5110(g) )

(b) Discontinuance of benefits. Where the reduction or discontinuance of an award is in order because of a change in law or a Department of Veterans Affairs issue, or because of a change in interpretation of a law or Department of Veterans Affairs issue, the payee will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence. If additional evidence is not received within that period, the award will be reduced or discontinued effective the last day of the month in which the 60-day period expired.

(Authority: 38 U.S.C. 5112(b)(6) )

[27 FR 11886, Dec. 1, 1962, as amended at 55 FR 13529, Apr. 11, 1990; 62 FR 17706, Apr. 11, 1997; 65 FR 35282, June 2, 2000; 67 FR 49586, July 31, 2002; 76 FR 4247, Jan. 25, 2011]

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

This is last update in 2011....has this changed?

Edited October 7, 2013 by Berta

[jcolwell]

Best of my limited knowledge it would fall under #1 . Thanks for the links . I email the layers as you suggested . Will let you know . JC

1) If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue,( REg was 8/2010 ) or at the request of a claimant received within 1 year from that date( filed 4/2011 ), benefits may be authorized from the effective date of the law or VA issue.( first reg on this published in 8/2010 )