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Uh Oh! Va Asking For C&p In A Nehmer Claim


hawkfire27
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Question

Hi everyone,

A couple of years ago my husband applied for AO presumptive IHD and was awarded 60 from 2001, and 30% from 19988 to 2001. In 1988 Social Security found him unable to work because of IHD and Anxiety. He is VA 100% for PTSD since 1988.

So when he received the Nehmer IHD rating letter, he realized that they had used more recent and less favorable regulations in deciding his rating. So he appealed via DRO review. Approximately two years later, we were still waiting for a hearing date to be scheduled, and instead withdrew the appeal, and filed a new and material evidence claim requesting an increase to 100% from 1988.

He requested this because prior VA regulation gives a 100% rating when you are unable to maintain gainful employment, which the social security records (new evidence) provided proof of.

Fast forward to today, and my husbands nehmer claim for increase has been moved from "pending decision approval" back to development and he received a phone call advising him he has a C&P scheduled for Dec 16th.

I don't understand why they are requesting a c&p because of a regulation issue. He has had 2 bypass surgeries etc. They never asked for a c&p in the initial nehmer claim for IHD in 2011/12, so why would they be randomly doing one now???

My husband is 100% + 6-% for statutory housebound. His is convinced that they are trying to take away his housebound rating.

Any thoughts???

The last time he had a c&p done at the VA in El Paso, we had to have a congressional inquiry because it stated he didn't suffer from IHD. (Unrelated A&A claim) along with many other incorrect pieces of information. Soooooooooo I guess I am a little worried. It has been in pending decision approval for a long time, and now to be shoved back to the development phase.

Any ideas??

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"A couple of years ago my husband applied for AO presumptive IHD and was awarded 60 from 2001, and 30% from 19988 to 2001. In 1988 Social Security found him unable to work because of IHD and Anxiety. He is VA 100% for PTSD since 1988."

Nehmer did have to go back to the older IHD regs for percentages on many claims.That is what they did in my case.

My husband's IHD was malpracticed on.His IHD was rated at 30% under Nehmer even though it contributed to his death...because they never diagnosed or treated him for it, and I proved the malpractice started in 1988.

.

"requesting an increase to 100% from 1988."

But how will you do that....I ask because the SSDI involves 2 separate disabilities........even though they are both SCed.

Did VA base his 100% PTSD on his 1988 SSDI award?

Are you attempting to get them to CUE the Nehmer decision?

Dont be discouraged by what I said as to how are you going to do that because nothing is impossible with the VA.We claimants just have to think out of the box sometimes.

"My husband is 100% + 6-% for statutory housebound. His is convinced that they are trying to take away his housebound rating. "

I sure dont see how they could do that.

Then again my first Nehmer decision said my husband, an incountry Vietnam combat vet didnt have IHD noted in his SMRS.

Say what...how many Vietnam vets had IHD when they were in Vietnam? , hell most of them were not even 19 years old.... I raised Cain and they fixed that legal error

right away..

One thing about a C & P exam....the VA has to justify just about every decision they make, and that requires most of the time a C & P exam.

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Hi Berta, Thank you so much for replying to my post.

I received the reply to my husbands claim. They denied an increase stating that his condition has not worsened since the last rating.....In other words they did not even read his claim as he was giving new and material evidence and requesting a reconsideration because they used the wrong regs.

We tried to do a new and material evidence claim by providing more social security records because they did not include his social security records on the original SOC. Yes they gave him 100% for PTSD based on various treatment records and SS disability at a hearing because he was proven to be unable to maintain "gainful employment"

Thought this would be a quicker way than a DRO review which we were still waiting for 3 years later. So we cancelled the original DRO review on the Nehmer claim because they didn't have the SS records for that anyway, and submitted a new claim for reconsideration of the Nehmer claim based on new and material evidence, including a copy of a BVA case where it stated the regs requiring VA to use old regs, and a copy of the old rating regs as well. They apparently coded it as a new claim for increase instead of a new and material evidence claim to reopen the nehmer case.

Do you think I should CUE the regs used on the original decision (they state they didn't have SS records which would be needed for these regs to be used correctly anyway) (they had the regs that's how they got the original 1988 date they used to grant 30%), or would it be better to use the most recent INCREASE Claim and CUE the type of claim?? Or do you think the Nehmer NVSLP lawyers would be a better option at this point?

If you need more info please let me know. I am so discouraged and lost right now has been fighting this claim since 2009.

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Do you have a specific reference where it requires VA to use old Ratings Schedules for IHD for Nehmer claims??

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This sounds like it was a Nehmer Footnote one claim.....

But I cant be sure.

Did you contact NVLSP long ago when I posted their email addy here?

They wanted to hear from all AO vets under the new regs at that time (2010)

I am not sure that their AO email addy even works anymore.

You could reach one of the NVLSP lawyers here at:

Phone: 202.265.8305
Email: info@nvlsp.org

"Do you have a specific reference where it requires VA to use old Ratings Schedules for IHD for Nehmer claims?"

Rick Spataro, Nehmer lawyer, NVLSP, confirmed that for me.

I have very limited time today but maybe I can find them tomorrow...I think I did post them here somewhere a few years ago.

They had to rate my husband at 30% IHD, because this was the rating they determined in his lifetime,

yet he was never diagnosed by VA and the IHD caused his death.So obviously that rating was wrong but they had nothing to rate him higher with. We were never told he had heart disease at all.

I am very confused by this:

"Thought this would be a quicker way than a DRO review which we were still waiting for 3 years later. So we cancelled the original DRO review on the Nehmer claim because they didn't have the SS records for that anyway, and submitted a new claim for reconsideration of the Nehmer claim based on new and material evidence, including a copy of a BVA case where it stated the regs requiring VA to use old regs, and a copy of the old rating regs as well. They apparently coded it as a new claim for increase instead of a new and material evidence claim to reopen the nehmer case."


"Do you think I should CUE the regs used on the original decision (they state they didn't have SS records which would be needed for these regs to be used correctly anyway) (they had the regs that's how they got the original 1988 date they used to grant 30%), or would it be better to use the most recent INCREASE Claim and CUE the type of claim?? Or do you think the Nehmer NVSLP lawyers would be a better option at this point?"

I Cued my very first Nehmer decision and they fixed that in 3 weeks and I got the award, but then had to CUE that decision as well ,and that CUE, during ther appelate period, is still pending. It was regarding a CUE the Nehmer people awarded ( actual they awarded 4 CUEs, one being contingent on my Nehmer claim. The CUE I have pending is on the 1151 issue.

I have info in the CUE form here on how I have been successful with that tactic ( asking them to CUE themselves within the appeal period)

However......I am concerned that you dropped the DRO request. and are seeking a faster way to resolve the issue...but I dont get understand what you are seeking, and why.

If threSSA records were probative to the original AO claim and VA knew of them, they should have obtained them and then, if they did not use them, it could possibly be a CUE under 38 CFR 4.6.

One of the Nehmer lawyers will surely try to help you,if this is a question of a proper EED.

But I suggest before contacting them, to write down the above information with the dates each step occurred, and the most recent status from the VA on this claim.

Can you scan and attach the last decision here as to their Reasons and Basis? (Cover C file number, name etc.)

I am lost.....as to what you are appealing. And pressed for time. Others will chime in here too.

There are very few Fast ways to get the VA to do anything right.

My AO CUE in Dec 2011, got very fast results (I filed that claim via fax and IRIS. VA Central ended up calling me by phone and it was fixed.

but my SMC CUES took from 2004 to 2012.

My current CUE is still pending ( 2 years in) but they also opened a new claim for me for DIC.in April 2014. I already get DIC and yesterday they told me it was for a new DIC EED. That doesn't make sense to me.

I think it is just their way of stalling on deciding my other 2 pending claims.

Maybe it would be best to post their last decision here before contacting NVLSP. Others will chime in.

NVLSP's prime concern and reason they wanted us to contact them, was that AO vets would get the proper EED.,under the 2010 AO regs.

Although you feel the rating was not correct, did Nehmer give your husband the proper EED for the IHD?

.

Edited by Berta
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I went back to previous posts you made.


"IHD claim -

* No problem with the date
* rated 30% 1988 to 1991
*rated 100% 1991 to 1992 (By pass surgery)
*rated 30% 1992 to 2001
*rated 60% 2001 to present

Problem with rating-
* reason given for 30% assigned rating: Veteran has not demonstrated in evidence that a rating higher than 30% is warranted. A rating higher than 30% requires proof that the veteran had recurrent aginal attacks or a reduced ability to work, such as the inability to do anything other than sendentary work.

* So my husband recieved SSD when he had his heart attack and several angio and stents placed in 1988.
* VA VOC REHAB attempted to retrain him because he was unable to return to the same type of work that he was doing. He failed the retraining which was part of the SSD claim in 1988.

VA never considered the Voc Rehab records or the social security records."

If VA was aware of any Voc Rehab denial because of the IHD and they were aware of the SSDI award solely for IHD,

Then, if they completely ignored that probative evidence, they committed a Cue under 38 CFR 4.6.

A CUE depends on a legal error with established medical evidence, in VA's possession at time of the decision alleging the CUE.

38 CFR 4.6 is a fabulous regulation and I used it for my past CUEs, with citations of other legal errors they made.


"4.6 Evaluation of evidence.
The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law." 38 CFR 4.6

'every element that affects the probative value'

That sure includes SSDI and Voc Rehab Records.

I used it for my pending CUE yourself claim.

They awarded accrued at 6 months at 100% P & T plus SMC under 1151.for a CVA. The established medical evidence at time of the Nehmer decision and during my husband's lifetiome, warranted 100% P & T , plus SMC, for 22 months. They vioolated 38 CFR 4..6 and owe me some cash.

I have templates here for this type of CUE claim.

I still am not sure what the status is however of the claim you have now.....I cannot determine what appeal rights you have and what decision you might be able to request them to CUE themselves on.

I think it might be the very first denial for IHD you ever got, if you had claimed IHD prior to the AO Nehmer regs of 2010.

If they violated 38 CFR 4.6,. to your monetary detriment, that is a Legal Error .

If the medical evidence they had , at time of any decision in which they violated 4.6, warranted a hiogher rating, that is a CUE.

Only one piece of my evidence for my pending CUE was not in my husband;s C file as far as I know.

It was a letter from a former VA Secretary confirming his 100% P & T stroke (CVA). All of the rest was medical evidence of the 100 % P & T 1151 CVA , established long ago by the VA itself. and I re submitted it all, even though I know that had it.

CUE in this respect is like the Watergate question...what did they know and when did they know it.

Most of what they 'know 'comes from the med recs but often Voc Rehab denials due to SC and SSDI records are what we tell them about ourselves.

Some clown at the DAV ,long ago, told me my husband's SSDI award might not make a difference to VA.

But it was for his same SC conditions.

What an ass he was ...SSDI is an independemt medical opinion.

I think your disagreement is not with any EED at all , regarding NVLSP, but with the ratings.










Edited by Berta
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Hi Berta, Thank you so much for your response. I am sorry it is a bit murky isn't it.

* No problem with the effective date.

* problem with rating of 30% until 2001, as he was determined unable to work in 1988 and failed voc rehab.

* Problem with the fact they state they did not have social security records just the earlier effective date is the date awarded social security, so they MUST have had the record to come up with the date. (no other mention of SS records in SOC)

My husband applied for IHD in 1994 and was denied -not SC'ed. The again in 2010 with the new AO regulations and awarded the 30% (1988-2001) then 60% from 2001.

The status of the Nehmer claim is closed. We attempted an appeal via DRO review but while waiting 3 years just for a hearing were informed that they would not review the claim with additional evidence (SS Records). So we dropped the appeal and went with a new and material evidence reconsideration claim, against the Nehmer case. Unfortunately they coded this as an new claim for increase instead of a reconsideration of the Nehmer claim and denied the increase based on his current condition.

And that is where we are at. Will look over your response a little more, as it is a bit confusing too :-)

Thank you again!

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