AGENT ORANGE

[64shakers]

I filed a claim in 2002 for a condition that was not one of the VA's presumptive diseases.  Of course it was denied.  I reopened the claim based on medical evidence and a C&P exam that was scheduled by an adjudicator.  The results were that the doctor conducting the C&P concurred with two private medical doctors in that "my conditions was at least likely as not" to have been a result of my exposure to Agent Orange.  If, and when, the claim is finally completed, what would be the effective date of compensation or back pay?  I was awarded 100% permanent and total in 2004.

 

Edited July 9, 2016 by 64shakers
left out sentence

[Gastone]

Could use more info, Redacted DBQ & Denial Letter would help. Was your Reopened Claim considered a Nehmer Claim?

The Denied Award looks to be good for at least 24 mos of Retro at whatever the SC %  Awarded is, based on the comp rate then.

If the new SC % is 60 or above, might get you a SMC S (1) tacked on to your 04 100%.

Semper Fi

[Berta]

To clarify, did you submit additional evidence during the appeal period?

And ,as Gastone said, not enough info here yet...

It is extremely rare for VA to award AO SC for anything not on the presumptive list but it does happen.

 "I reopened the claim based on medical evidence and a C&P exam that was scheduled by an adjudicator. "

Was this the same C & P exam they used to deny the claim?

"The results were that the doctor conducting the C&P concurred with two private medical doctors in that "my conditions was at least likely as not" to have been a result of my exposure to Agent Orange ."

Apparently he actually read their IMOs...?

If so, and if this C & P exam was conducted prior to the denial,then it seems to me that VA had in their possession at time of the denial, evidence (the IMOs) that hopefully will award the re-opened claim.

In that case they might have committed a CUE on the denial. So hard to know yet....

I certainly have used C & P exams that denied claims, to support personal awards for them.

What POed me the most was that these were posthumous C & P exams,and  my husband ,the veteran was dead, and could not speak for himself.

Did the VA re-open the claim due to the IMOs and then garner the C & P exam that was favorable?

EEDs on re-opens involve many factors.

I do not see this as a Nehmer claim.Has VA stated that it is?

 

 

 

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp01/files03/0118842.txt

In Part:

The assignment of effective dates of awards is generally 

governed by 38 U.S.C.A. § 5110 (West 1991 & Supp. 2000) and 

38 C.F.R. § 3.400 (2000).  Unless specifically provided 

otherwise, the effective date of an award based on an 

original claim for service connection, and a claim re-opened 

after final adjudication, "shall be fixed in accordance with 

the facts found, but shall not be earlier than the date of 

receipt of application therefor."  38 U.S.C.A. § 5110(a) 

(West 1991).  The implementing regulation clarifies this to 

mean that the effective date of an evaluation and an award of 

compensation based on an original claim, and of a claim re-

opened after final disallowance, "will be the date of 

receipt of the claim or the date entitlement arose, whichever 

is the later."  38 C.F.R. § 3.400(a) (2000).  (emphasis 

added).

 

Section 3.400 further states that the effective date of a re-

opened claim will be the date of receipt of the claim, or the 

date when entitlement arose, whichever is later, except as 

provided in § 20.1304(b)(1) (which, in essence, addresses the 

handling of situations in which a request for a change in 

representation, a request for a personal hearing, or 

additional evidence, is submitted following the expiration of 

the 90-day period immediately following notification of 

certification and transfer of records).  38 C.F.R. § 3.400(r) 

(2000).  (again, emphasis added).

 

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp01/files03/0118842.txt

[FormerMember]

Nehmer Adjudications have a unique feature. If at any time in the past you filed for a current Agent Orange presumptive disease that was not recognized at the time of filing in the past, you get that date as the effective date. I had one who filed for DM2 in 96 and lost. He came back in 2009 and refiled. On appeal to the BVA, he won the 1996 date for 40%.

Now, with this, you have what the Courts call 'a matter of first impression'. If you filed for it in 2002 as being caused by AO (or any other risk), it stands to reason that a later adjudication granting the disease/injury as due to AO is based on more and newer research that permitted a finding that it was indeed caused by AO. The monkey wrench is whether it is recognized as a presumptive. It's intriguing case law that deserves to be heard. I'd fight for it if for no other reason than to set precedence for others who come behind us. I did it for Porphyria Cutanea Tarda. I got VA to grant it at 100% schedular all the way back to 1994 under 4.115a (and 4.20) as phlebotomies being analogous to dialysis. We should always do what we can for those who will fight VA in the future over exposure to diseases or unknown chronic conditions in SWA. Burning feces and depleted uranium dust from ordnance cannot be good for the lungs. 

I think it's important enough for you to run it by an attorney. The important thing is to file a NOD for an earlier effective date based on Nehmer logic within the one year window to do so. It would help if you were truly boots on the ground in RVN as opposed to a Korean/Thai/Okinawa/Guam exposure. Those are always tenuous claims at best and VA usually pokes hole in them or only allows them on a case by case basis-usually at the BVA. Win or Die.