Nehmer Appeal-Berta-Anybody

[warren]

I was awarded 90% for Parkinson's effective April 15, 2011. Filed for IU and was granted back to last day worked (08/01/11). I then filed NOD for EED for Parkinson's. The RO didn't understand what I wanted and denied my NOD for EED. I appealed the decision and was granted an EED of 08/31/10, when Parkinson's was added as a presumptive disability to agent orange (They still don't understand my 2nd appeal). The RO had a doctor at VAMC to do a medical opinion DBQ on my appeal for EED and the doctor stated that it is as least as likely as not that the veteran's tremors are related to his now service connected Parkinson's dating back to September, 2006.

The RO reasons for decision: The appealed decision denied entitlement to an effective date earlier than April 15, 2011 for Parkinson's. DE NOVO review shows that on November 15, 2010, VA received your claim for service connection for Parkinson's. VA granted service connection effective 04/15/11, which was the earliest date that records established a confirmed diagnosis of Parkinson's. Review of the evidence submitted with the claim (my second appeal) documented neurological tremors dating to 2006. Your file was provided to a VAMC physician for review. The reviewing physician concluded that the neurological tremors documented in 2006 were likely related to Parkinson's. The examiner also concluded that based on review of all records and your provided history, this is the earliest reasonable date for likely onset. Since your claim for Parkinson's and evidence associate with Parkinson's was not received prior to the date of law change, this is the earliest date (08/31/10) that service connection may be granted. Your rating decision represents all claims we understand to be specifically made, implied, or inferred in that claim (my 2nd appeal). They also applied the benefit-of-the-doubt.

Berta, I hope you see this post! In my 1st and 2nd appeal I stated that I was asking for an EED for Parkinson's based on my claim I filed on 11/19/2002, for neurological disabilities which reasonably can be construed as PD. Under Nehmer it states a diagnosis (page 16 of Training Guide dated 02/10/11) is not needed and that the terminology didn't have to be correct. I also included Page 17, 20, 21, 31 and 32, of Training Guide. On page 32, it says if there is any doubt about whether or not an individual is a Nehmer Class Member, readjudicate the claim. Now that they gave me benefit-of-the-doubt on my appeal for EED, do you think this would be positive for my 11/19/2002 claim? On their decision they didn't mention Nehmer, but I did.

The physician at VAMC gave the medical opinion that the earliest date that could be used is September, 2006, is what evidence the VA considered. The physician lied on his report: He said he used my VA claims file folder, VAMC records and private treatment records to get his medical opinion as to whether the symptoms noted in the records are early stages of the now diagnosed Parkinson's. My VA file folder contains personal medical records from 1997 through 2010, stating abnormal neuro tremors. He lied on this also as I was seen by a neurological/movement specialist at the Richmond VAMC by Tele-Medicine. His impression is that I am inclined to think the veteran has had Parkinson's for 15 years. The local VAMC physician that gave his opinion states that the specialist at Richmond relied

on my self-reported history of tremor beginning in the 1990's. However, there is no documentation in the medical record for that time period. For that reason, this examiner feels that documentation back to 2006 is the earliest reasonable date for VA purposes. What should I do? Your opinions would be greatly appreciated. Berta, I used your advice concerning Nehmer and I thank you.

GOD BLESS

[jbasser]

I am not Berta but the regs that added Parkinsons to the presumptive list effected prior denied claims. Those claims were under Nehmer so you can use that. You can ask the VA to Cue itself or you can NOD and grab onto a Bob Walsh type attorney and go for their Jugular Vein.

[warren]

Basser, your not as pretty as Berta, but i haven't seen your photo. Thanks a lot!

GOD BLESS

[Philip Rogers]

I agree w/basser.

pr

[Berta]

Warren.....I need to go over your other posts here.and the Nehmer training guide, ....but I sure agree with you and Jbasser and PR that the EED they gave you seems wrong...perhaps it should even be possibly based on this..

" He lied on this also as I was seen by a neurological/movement specialist at the Richmond VAMC by Tele-Medicine. His impression is that I am inclined to think the veteran has had Parkinson's for 15 years."

IF..... did you ever have a past rating ,even at NSC, for any neurological condition that could have been manifestation of Parkinsons in any past VA decisions??

And I forget, if I asked before.... did you ever contact NVLSP at their AO email addy when the new AO regs came out?

This bothers me:

"On their decision they didn't mention Nehmer, but I did."

They might not have even applied Nehmer correctly,if they didn't mention it at all.

They went back to 1988 on my Nehmer IHD death claim, although IHD never once appeared on any rating decision in my husband's lifetime.

But they got the EED date they used from a PTSD C & P exam.....figure that?

I am still livid that,like you I sent them all medical info they needed as well as Footnote One Nehmer etc etc, never expecting a denial,but they did deny the IHD at first and maybe, as in my case, you could ask them to CUE themselves. and then get a proper EED..

Hey everybody I think Jbasser probably looks a lot better than I do!

I bet he is a cutie!!!!

Edited December 16, 2013 by Berta

[Berta]

I commend you for taking the time to read Nehmer...it isnt easy.

On page 14 there is a definition of Parkinsons, and obviously tremors are an early manifestation of this condition.

Nehmer Training Guide:

“The evidence must show a diagnosis of one of the presumptive conditions and

the date of the diagnosis. A prior denial of a claim for a presumptive disability

based on lack of a diagnosis falls within the scope for readjudication, however

the effective date for any disability cannot precede the diagnosis. “

Page 21.

However ,in my case the IHD was never diagnosed in the veteran's lifetime by any VA doc.,and no date or DCfor IHD on any past rating sheet.

I diagnosed the veteran myself with IHD.( The FTCA/1151 award I got confirmed that diagnosis.

My point is that all of these criteria under Nehmer can have other nuances as well for a favorable EED,such as a prior 1151 award.

“The NehmerCourt has held that the stipulation requires VA to readjudicate all cases in which VA previously denied a class member’s claim of service

connection for a new presumptive disease.

A prior denial based on lack of

diagnosis rather than lack of nexus falls within the scope of the stipulation’s

requirement for readjudication. This differs from

claims in which there was no prior claim or class member status (i.e., no in-

country Vietnam service, no

“Veteran” status, etc). “

Page 15 Nehmer Training Guide

(my point her is the lack of diagnosis that would require re adjudication)

But Tremors are certainly the first manifestation of Parkinsons, as in page 14.

http://www.americanbar.org/content/dam/aba/administrative/young_lawyers/project_salute/cb_d4_f1_Nehmer_Agent_Orange_Class_Action_VA_Training_Guide.authcheckdam.pdf

Nothing is impossible on these Nehmer claims.

I also won,in 2009, another Nehmer claim for my husband's DMII due to AO.

No diagnosis at all, and no diagnostic code......but that time I had 3 IMos to back up my lay diagnosis.

Have you contacted NVLSP at all?

Edited December 16, 2013 by Berta

[warren]

Berta,

I called Mr. Rodini, and sent him a packet of evidence on april 19, 2012. If i remember correctly, he said to go ahead and file claim. Berta, It strikes me as being odd, that the ro agreed that the neurological tremors documented in 2006 were likely related to parkinson's and gave me an eed to 9-1-2010, but the original award was granted effective 4-15-2011, because that was the earliest date that pd was diagnosed and now the diagnosed date doesn't matter. This tells me that they can pay me back to 2001. Should I contact NVLSP?

jbasser, can't look better than you, because he's a ky. wildcat.

GOD BLESS