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  • Trouble Remembering? This helped me.

    I have memory problems and as some of you may know I highly recommend Evernote and have for years. Though I've found that writing helps me remember more. I ran across Tom's videos on youtube, I'm a bit geeky and I also use an IPad so if you take notes on your IPad or you are thinking of going paperless check it out. I'm really happy with it, I use it with a program called Noteshelf 2.

    Click here to purchase your digital journal. HadIt.com receives a commission on each purchase.

  • 14 Questions about VA Disability Compensation Benefits Claims

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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Most Common VA Disabilities Claimed for Compensation:   

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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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    • Update 2:

      Just talked to a representative for my lawyer.

      I was basically told my lawyer is going to write an argument letter and present it to the BVA hearing judge - citing VA rules, regulations, and other similar cases of how my claim has been unfairly rated by the RO given all of the probative evidence.

      The motto of “deny, deny, deny until the veteran quits or dies” is alive and well.

      It should not take a veteran to present their case before the BVA to get it right.

      It is downright insulting and a spit to the face when a veteran clearly has current disabilities (that are presently being treated) that were diagnosed while in-service and documented in their SMRs.

      I find it funny how my least documented disability in my SMRs (patellofemoral syndrome in both knees) was granted when I first filed my claim in 2018. 

      Now I know first-hand how most or some of you feel in hadit.
    • Update:

      My lawyer received the decision letter before I did. I was denied on all of my contentions, and my lawyer sent in the form to appeal to the BVA.

      I find this disheartening because one of my issues (migraine headaches) are clearly documented in my SMRs and even on the separation physical exam the physician wrote “Migraine headaches (severe).”

      My SMRs also showed the frequency (3-5 per month) and intensity (prostrating in nature) of the migraines with documentation of laying down or sleep was my only relief.

      Sumatriptans did not help at all. After I left service, I was also diagnosed by a VA neurologist with migraine headaches.

      Then I had an IME w/ IMO with a board certified specialist who provided a nexus with “at least as likely as not related to his military service” in regards to my migraines.

      I just feel defeated, and my migraine headaches make me suicidal to the point I have suicidal ideation on a daily basis.

      I do no understand how the VA can deny service-connection when the evidence is cut and dry.

      The C&P exam for my migraines was done by an NP who incorrectly applied the VA definition for migraines and opined “veteran does not have chronic migraines. Chronic migraines are 15 migraine headaches per month or more.”

      Migraine headaches are not rated that way, which to me is clearly a CUE.

      I just feel so broken.
    • So, my lawyer sent an IME w/ IMO and filed a supplemental claim solely for IU on March 20.

      It was closed on March 25, and va.gov just states claim closed and nothing more.

      Hopefully, I get good news.
    • Thanks for the responses. I am filing a new claim but will continue pushing the NOD. My new question is it stated in law or statute that if during the claims process the VA finds conditions that could possibly rate service connection that was not originally filed for, the VA will “invite” the veteran to file the claim on the claims form. Reason I ask is that my private DBQs, NEXUS letter, and even the VA nurse examiner's DBQs lists bilateral upper radiculopathy as present. If it is written in statute or official guidance it might qualify as a CUE. Just looking at all angles. 
    • Everyone needs to read our stories so they can try to avoid these screws by the va...
      Thank you, everyone contributes, good or bad, all of our stories will help others, and yes, they have been stated by others for ages, over and over, but we just get depressed, and the time turns into years as they screw us..

      Welcome to the department of Veterans Affairs!  I can honestly say, "been there, done that".  

      Even after winning my tdiu in 2017, it was back to the drawing board as VA hornswaggeld my effective date.  (but of course).  

      I finally won my tdiu effective date in Feb. 2020, 18 years after I first applied!!!  

      Here is how they managed to drag mine out 18 years:

      1.  They never adjuticated my decison until 2009, where they called it "moot".  

      2.  I appealed, said it was not moot because it could result in an earlier effective date and SMC S under Bradley vs Peake.  The judge agreed with me, and ordered VARO consider me for extra schedular TDIU, under 4.16 b.  

      3.  The VARO piddles with  the remand for 3 years, and hoped I wouldnt notice.  I noticed and raised cane until they adjuticated it.  (denied of course).  

      4.  Finally, after the baord denied again, I hired a lawyer, in 2014, and appealed to CAVC.   

      5.  The lawyer won a remand, got an IMO and I won tdiu in 2017.  But at the wrong effective date, even after 15 years.  

      6.  I hired another lawyer, Chris Attig, and appealed the effective date, and he won a remand for effective date.  Trip 2 to CAVC.  

      7.  Mr. Attig won a remand, and advised me to get another IMO.  

      8.  The board awarded my earlier effective date in Feb. 2020.  

           So, I do have advice fighting VA for TDIU, they fought and fought and I hung in there and won it all.  

      ADVICE:  Dont count on VA, they could easily throw your fax in the trash.  Follow up!  
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Andyman73

AO good news

Question

Got some good news to share.  Some of you may know, or recall, that I had written elsewhere on here, that my Dad(Nam combat, 24 yr career retired, 60% SCD) and I don't exactly communicate very well.  The grapevine tells me that it's my own lack of communication skills are the problem.  Anyway, while updating my folks after yesterday's 6 month foster child case review court session, Dad went off topic to let me know that the VA has opened an AO claim for/on him.  Said they initiated it(???)and that he has a bunch of appointments scheduled over the next few months.  I was quite surprised that he wanted to tell me about that...since I'm usually the last to know, and my wife is usually the one telling me.

So...is there anything I should tell him to tell them?  I don't know too much about his overall health, beyond his Nam related back injury.  Thanks.

Andy

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Just be sure he is aware of all of the AO Presumptives, Andy:

http://www.hadit.com/agent-orange-presumptive-conditions/

The back condition will need an inservice nexus...hard to know why they opened a claim for him....maybe something in the 60% rating?

Maybe he is a Nehmer vet?

And if so maybe they denied an AO in the past, that is now presumptive...if so he falls under the very favorable EED condition of Nehmer .... called Footnote One.

It is good news!

Does he get CRSC? or CRSC ? If not the AO claim might open that possibility up for him.

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Berta,

He had told me previously, that he had spoken with the VA about AO, shortly after he retired in 1992.  I don't know much about what he has or has not claimed since this is a very sore subject with him, as you may recall I mentioned in the past. 

Don't know if he is a Nehmer Vet.  I think maybe he just wanted to tell me, since I had talked to him previously, about my spina bifida claim. 

He was on a twin engine bulldozer, in Vietnam, when it took a direct hit from a VC 122 mm rocket.  He spent 4 weeks in the hospital, then got sent back out to finish his tour.  After returning stateside, to Ft. Lost in the Woods(Leanardwood) MO, they put him in their hospital for 4 months or so. So yeah, he's got that one documented in spades...might be what his 60% rating is for.

He has it documented in his service record for the 3 times he was in the direct fallout zone of an AO application...well, the 3 times that he knows of.

If the CSRC is that concurrent receipt of retirement and VA disability comp, yes he does get that.  I remember when he was to start getting that, he was happy about that.

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Good on the CRDP or maybe it is CRSC

...and he does not have to prove AO exposure at all.

In country- Vietnam is all he needs. He probably does not want to talk about that 122 M hit he took. That would give anyone PTSD in addition to major physical disability..

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Ms berta 

What constitutes a Nehmer vet? a claim for A.O. presumptives ?

or just boots on the ground in Vietnam?

Maybe he is a Nehmer vet?

I possibly could be a Nehmer Vet? I was boots on the ground  

If VAMC finds anything A.O. Related are they required to report it and ask the veteran to file a claim?

Edited by Buck52
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Nehmer Decision addresses only AO Boots on the Ground, AO Presumptive conditions and Secondary issues.

Gun shot, physical injury, loss of limbs, PTSD and other MH issues are not presumtives of AO Exposure. Just being exposed to AO while in Nam, is itself, not an SC Condition.

Semper Fi

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  • Similar Content

    • By Foxhound6
      Berta and all. Here is what I have so far from my friend and his mother that I was speaking about the other day. From what I can tell, They do have the DD214 and DD215's. However, there DD214 itself does not show any type of locations of service as the newer ones do.It does show a previous command which I assume is the one he deployed with. I took notice of the "Foreign/Seas service" section of his 214 and noticed he has Foreign service for 11 months and 20 or so days, just long enough to be in Vietnam... However, I feel I may have to dig up records pertaining to that unit at the time in order to prove it? I am unsure on that exactly. It was also strange they had 2 DD215's, also unsure what to make of that. *edit - I remember the wife speaking about the veteran making a stop in Okinawa before Vietnam. I found a unit that fits that timeline of when the veteran would have arrive in Okinawa to link up with as a support engineer. I dont have a way to confirm, but it fits...:
      " On July 4, 1965, 2nd Battalion, 9th Marines was ordered to Vietnam. During this first year 9th Marines took part in approximately 45 battalion-sized and several company-sized operations. During the next four years 2nd Battalion, 9th Marines operated in or around Danang, Hue, Phu Bai, Dong Ha, Camp Carrol, Cam Lo, Con Thien, Than Cam Son, Quanq Tri, Cua Viet, Vandergrift Combat Base and Khe Sanh. For its actions in Vietnam 2nd Battalion, 9th Marines was awarded a third Presidential Unit Citation, a bronze star in lieu of second award of the National Defense Service Medal, the Vietnam Service Medal with two silver stars, and Vietnam Cross of Gallantry with Palm. In August 1969, 2nd Battalion, 9th Marines left Vietnam and returned to Okinawa. Its role in the Southeast Asian Conflict ended with the recapture of the Mayaquez and the landing on Koh Tang Island in May 1975 (Veteran completed his training sometime in 1969). In February 1979, 2nd Battalion, 9th Marines became the first battalion to rotate to the United States as part of the unit deployment program. " via http://www.2ndbattalion9thmarines.org/About_Us
      As far as medical is concerned, I believe I have enough to prove the VA wrong. The mother has HUNDREDS upon HUNDREDS of medical records pertaining to his disability. I couldn't copy them all but I found many pertinent ones that show the initial DX plus ongoing treatment. I am posting all of it here in hopes someone might make more sense of it along with the Rating decision. Sorry for some of the photos, the mother found more docs after I left and sent them via her phone.
       








      Matt Spina Bifida_Redacted.pdf
    • By Persistant
      I uploaded (last week) some of the decisions my late husband had gotten and Berta spotted a couple CUEs and gave me some help in drafting them.  Berta if you are able to help with a few more questions Please?  
      I have only 2 more days till my year is up from the DIC/Accrued benefits claim where DIC was awarded and Accrued denied saying there aren't any.  At that time also, I intended Substitution but the VA form got separated (my fault) and didn't get submitted. I, however, wrote it into the 21-534EZ form and checked it. I also included a cover letter that said explicitly I was substituting for any and all accrued benefits...  They didn't address substitution in their decision.  Now with the CUEs which aren't an accrued yet, do I need to address those 2 forms immediately before the deadline?
      Here are some questions I still have if you could clarify these for me please:
      A.      Is a NOD for accrued benefits claimed with DIC a year ago needed – to appeal their conclusion that there are no accrued benefits? Would any backpay from these CUEs be considered accrued benefits that I would have to NOD the decision now for?
      B.      Is Substitution needed to do CUE claims or to receive any backpay on them?
      C.      What happens when future presumptions of ao are added to the list going forward (as a surviving spouse) does it affect anything I can act on?
            1.        Conditions claimed before – either rated or denied sc          
            2.       Would conditions listed in the C-File but never claimed come into play ever as a presumptive?
      D.      If CUE is successful:
           1.       then qualifying for housebound or A&A will need to be judged and evidence has never been presented before…
                a.       does the judgement come only from the C-File?  And if so, should I include printouts from C-File to bring attention to issues pertaining to them? 
                b.      Can any evidence be added (from that date and before) since it was never considered before?  And if so, do I include it with the CUE claim?
      E.       IHD was first decided as 30% and went back to one year prior to our first claim – effective 2004…the bump up to 60% was effective   .  But the 100% was effective 2006…Should any of those effective dates be different because:
           1.       SSDI was in place for IHD qualification date of 12/2000  
           2.       TDIU decision being effective 2006 (but he was unemployable per SSDI in 2000?) 
           3.        100% decision?   
           4.       100% effective date adjusted back due to Nehmer 2010 addition listing it as a presumptive
           5.       Combination of all the above?
      F.       Many of the evidence documents we submitted are not in the C-File and none of the forms we submitted are there to prove what we submitted or said.  Is that normal?
      G.     Also, the only SS docs in the C-File are the ones where I outline his conditions and behaviors in answer to the many questions on the intake paperwork for that SS claim.  There’s 4 pages of handwritten (including along margins due to space shortage)  that I doubt anyone is going to wade through but it’s filled with problems he was having.  Should I type it all out and attach it to the handwritten forms?
      H.      We submitted the whole SS file but can’t prove it.  We even wrote a letter to our Congressman to help us get a particular letter sent to us by SS along with their decision listing a myriad of restrictions to employment they concluded for him.  I couldn’t find it and neither could SS but the Congressman did try for us. I have those communications too, but don’t want to drown them in paperwork with this claim.  Any thoughts?
      Again, thank you Berta. I did try the other people you suggested without success.   
      And thank you to everyone here who has helped  me or does going forward!  
    • By Persistant
      Berta told me about Footnote One Nehmer yesterday and I had not heard about that although I do know about Nehmer.  And yes my husband was rated for Ischemic heart disease before it was added to the presumptive list. And his death certificate signed by his GP at VA saying long term heart disease.  It was rated as secondary to diabetes (which was rated 20% initially) and was already a presumptive condition. He had applied for both at that time - about 2003 or 2004.  He was rated 30% initially for his heart even though he had had a quadruple bypass (Dec 2000) with neurological complications, extensive scar tissue from many previous heart attacks that had to be cleaned out before the bypass could proceed in surgery.  He had a TIA on the operating table and post pump syndrome from being on the heart lung machine so long (due to the cleanup) for surgery.  He was told by his heart specialist he could no longer work at what he was skilled to do. He was granted SS Disability as a result 9 months later.  
      He filed his first VA claim a couple years later when his buddy finally persuaded him to do it.  He had been diagnosed with Type II Diabetes in 1997.  They didn't address any of the neurological stuff (from the heart surgery) as I recall at all or the post pump syndrome (which usually goes away rather quickly but was a problem for at least a couple years for Don).  The lower left ventricle of his heart was dead already before surgery from previous attacks we didn't know about - silent due to diabetes.  And his ejection fraction was 25 before and right after surgery and then came up to 30-35.  It bounced around some over the years but was usually 30-40. He had an echocardiogram every year which approximated it. After 2 hospitalizations for Congestive Heart Failure over the next few years, they finally rated him 60% heart and 40% diabetes (when he became insulin dependant.  Shortly after starting insulin  - a few months -  Don was put on an insulin pump because he was needing so much insulin and put him on the U500 insulin which is very closely monitored because of being so very strong) and VA rated him for 10% each leg for Peripheral Neuropathy.  Don also claimed PTSD, which should have been granted, as we had a few years worth of records already from a private practice psychologist the VA had recommended whose report said he had it and it was from VietNam (non-combat).  But Va's C&P psychologist or psyciatrist said he wasn't sure of that origin. He agreed Don had it. They asked us to prove Don's stressors.  We searched for months for other guys Don remembered being there, found one but couldn't prove the stressors.  They never contacted us when the requirement to prove stressors was lifted to re-evaluate his claim.
      In 2006 they rated  him TDIU and his heart 100% by itself in the same decision with effective dates a few months apart???  Makes no sense to me since the TDIU was then dropped due to the 100% rating.  That was his last rating - 2006. He developed kidney failure late 2010 with a hospitalization of a few weeks for Congestive Heart Failure because the kidneys weren't removing the fluid with normal types of hospital treatment. He was treated by a team consisting of his heart specialist,  his GP who had admitted him, and the new Nephrology group the GP brought in. All Private Practice doctors and hospital. They finally tried something rather bold, I'm told, that started the fluid draining.  After discharge, at home, he had a few weeks of digital monitoring of his stats, reports I had to give them on weight and output amounts etc. and nurse visits and was told to prepare for dialysis.
      About that time his doctor at VA called, alarmed, at his rapid decline in kidney function. That is in the medical records at VA along with numerous notations of him being on dialysis and having a port in his abdomen for it, every time he went in for a 6 month checkup.
      As you know, Berta, we asked about rating his kidney failure (which his doctors say was from diabetes making it another secondary condition of diabetes and so service connected..) and 3 different VSOs in 3 locations each said we couldn't go above 100%. I didn't know about these kind of forums then.  And only discovered the blog I reference below, by accident.  We also asked his doctors at VA and they didn't know either.  But one of them (unbeknownst to us) requested payment from VA for the 'dialysis treatment plan' and they agreed to pay for supplies, treatment, bi-monthly clinic followups with the 'team' (nephrologist, nurse, dietician, social worker). They also covered delivery of supplies to our home bi-monthly (huge amount of heavy bags of fluid and much more.).  He had started dialysis April 2011 and they began paying April 2013 and continued until his death Dec 6, 2015.  In March 2015 I saw a blog about Special Monthly Compensation and about rating conditions beyond the 100% level. I asked for an analysis of Don's case and the attorney agreed requesting Don's C-File from VA in March. It didn't arrive until late Aug 2015.  The analysis  wasn't quite finished when he died.  A & A was definitely something he qualified for as well and I have many statements from friends, relatives, our pastor etc as well as notes in VA's files and doctor statements about it. But that's another story.
      I don't know if Nehmer affects anything I've said here or not.  Does anyone else?  Berta?  And we were not ever contacted by VA or NVLSP about it.  Maybe because he was already 100%? 
      I did apply for DIC and Accrued benefits within the year following his death and was granted DIC and denied accrued because they said there weren't any.  They never checked his C file or medical records or Treasury to discover anything really. I had thought the attorney would represent me in an appeal but he's decided not to.
      My DIC was granted at the higher level due to Don having been 100% for over 8 years.  I'm not sure what you thought I interpreted wrong about that Berta.  
    • By DonH
      ALS Variant?
       
      I'm a Vet Wife. I post on behalf of my husband, I'm his note taker at doctor's appointments and consults.  I'm his support system and all around cheerleader. Lord knows we have had our VA battles. All these years after Vietnam, the onset of my husband's emerging illnesses, obviously percolating internally has emerged  one after another. We've seen subtle signs and some not so subtle. But didn't; know what those sign meant. The VA didn't do a very good job of educating the older veterans about what to be aware of regarding SC disabilities,
      My veteran husband's a Purple Heart Vietnam Veteran  served in US Marine Corps. My husband  has several service connected disabilities. My husband diagnosed with Monomelic Amyotrophy recently; it is a Motor neuron (MND) disease that is the umbrella covering all type Motor neuron diseases and variants. To which ALS/ Amyotrophic Lateral Sclerosis and variants falling under the same umbrella as being classified as Motor Neuron Disease (MND). As exhibited in cases of muscle loss: Monomelic Atrophy.
      ALS causes degeneration of nerve cells in the brain and spinal cord that leads to muscle weakness, muscle atrophy, and spontaneous muscle activity. The VA Doctors pondered whether my husband had ALS or MS. Yet, the Neuromuscular Head Physician conceded that my husband's illnesses was an ALS variant because his illness fell under the umbrella of Motor Neuron Diseases as did ALS......is a Motor Neuron disease. ???? We don't know how VA will decide.
      Other complicating issues:
      *Spinal issue (S Curve of spine)
      *Multi focal motor neuropathy associate with Diabetes 2 is a part of the mix/entwined as well. 
       
      However, most severely is the inability of identifying the exact reason for the monomelic atrophy.
      Although it was hoped a more exact finding will be determined when all results of updated blood tests were in.
      On May 2017: *Blood test are in; determination that no immune diseases are present
      Possible treatment of an intravenous treatment once every three months or medications with steroids would be beneficial. No effective treatment available.
       
      MMA
      Diagnosis. 
      Inflammatory Arthritis is Part of the neuropathy (Special kind of neuropathy)
      As well as severe spine problems. Very rare complicated illnesses intersecting and exacerbating primary and/or secondary with veteran's service connected disabilities.
       
      Monomeric atrophy......Veteran has lost the use of his right hand and right forearm weakened and wasting away.
      One limb atrophy
      See notes…..described as one limb muscle atrophy
       
      Spinal cord (S curve of spinal cord) compression on top on addition the monomeric
       
      Toxic agent like Agent Orange could more likely than not" a contributor for neuropathy.
       
      Immune diseases (no)
       
      Deterioration. Of bones on vertebra
      Spondylosis...inflammatory arthritis 
      Acts like spinal cord injury 
       
      (Findings of EMG) EMG to confirm the diagnosis ( Neuromuscular VA Physician at Michael E. DeBakey VA Medical Center, Houston, Texas)
      Table of Rated Disabilities
      Disability
      Rating
      Decision
      Related To
      Peripheral Neuropathy, Left Lower Extremity
        Not Service Connected
      Denied as…. early as 2011… Yet, D to pinpoint as severe symptomatic complexities of Monomelic Amyotrophy variant of ALS in 2017….should be cued.
      Peripheral Neuropathy, Right Lower Extremity
        Not Service Connected
      Denied as…. early as 2011…  Yet, ID to pinpoint as severe symptomatic complexities of Monomelic Amyotrophy variant of ALS in 2017….should be cued
      Agent Orange - Vietnam
      Neuropathy, Left Upper Extremity
        Not Service Connected
      Denied as…. early as 2011…  Yet, ID to pinpoint as severe symptomatic complexities of Monomelic Amyotrophy variant of ALS in 2017….should be cued
      Bilateral Hearing Loss (claimed as diminished hearing)
      0%
      Service Connected
        Tinnitus (claimed as ringing in both ears)
      10%
      Service Connected
        headaches
        Not Service Connected
        depression
        Not Service Connected
        skeletal arthritis aching of the joints (unspecified)
        Not Service Connected
      Arthritis denied as…. early as 2015…  Yet, ID to pinpoint as being symptomatic complexity of Monomelic Amyotrophy variant of ALS in 2017….should be cued
      post traumatic stress disorder (PTSD, also claimed as depression and anxiety)
      30%
      Service Connected
      PTSD - Combat
      Hypertension
      0%
      Service Connected
        Neuropathy, Right Upper Extremity
         
      Rectal carcinoma claimed as rectal cancer, a soft tissue cancer)
        Not Service Connected
      Agent Orange - Vietnam
      Still on since  12/11/14 appeal
      Remand 5/15
      scar, shrapnel right knee
      10%
      Service Connected
        09/18/2013
      diabetes mellitus type II
      10%
      Service Connected
      Agent Orange - Vietnam
      07/06/2015
      prostate cancer
      100%
      Service Connected
      Agent Orange - Vietnam
      07/06/2015
      erectile dysfunction
      0%
      Service Connected
        07/06/2015
       
      Neuropathy, Right Upper Extremity Denied as…. early as 2011…  Yet.ID to pinpoint as severe symptomatic complexities of MonomelicAmyotrophy variant of ALS in 2017….should be cued Agent Orange – Vietnam
       
    • By Berta
      http://community.hadit.com/topic/69387-poopsy-woopsy/
      This came up in the above thread and although the info on Nehmer is a signifiant amount here in the AO forum, this had to be clarified as it could be hard to find under a search.
      Nehmer class action members who are the survivors of a AO veteran, under the 2010 Nehmer Court Order (which  service connects IHD, Hairy Cell B, and Parkinsons in all incountry Vietnam veterans, do not have to file for substitution or accrued benefits when they file their AO DIC claim.
      All other surviving spouses of vets who had claims pending at death must file as substituted claimant or for accrued benefits within one year of the veteran's death. Accrued benefits are defined in detail here under a search.
      I took this definition from a BVA case, which made it easier for me to find:
      This is the regulation regarding Nehmer claims, which is defined as a retroactive payment, not an accrued payment::
       
      “I.  Retroactive Benefits
       
      The appellant contends that the Veteran's heart disease was due to Agent Orange exposure and, therefore,  retroactive benefits are warranted pursuant to the Nehmer decision. 
       
      This is not a claim for accrued benefits.  The RO, on its own initiative, sent the appellant a letter in March 2011 explaining that it was going to review the matter pursuant to Nehmer v. Veterans Administration of the Gov't of the U.S., 284 F. 3d 1158 (9th Cir. 2002).  The provisions of 38 U.S.C. 5121(c) and §3.1000(c), which require survivors to file claims for accrued benefits, do not apply to payments under 38 C.F.R. § 3.816, regarding awards under the Nehmer Court Orders for disability or death caused by a condition presumptively associated with herbicide exposure.  See 38 C.F.R. § 3.816(f)(2) (2015).
       
       
      1) Applicable Law
       
      Retroactive benefits may be paid under Nehmer if a Nehmer class member is entitled to disability compensation for a covered herbicide disease.  See 38 C.F.R. § 3.816. 
       
      Nehmer class member means: (i) a Vietnam veteran who has a covered herbicide disease; or (ii) a surviving spouse, child, or parent of a deceased Vietnam veteran who died from a covered herbicide disease.  38 C.F.R. § 3.816(b)(1).  If the class member's claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose, except as otherwise provided in paragraph (c)(3) of this section.  38 C.F.R. § 3.816(c)(2). 
       
      The covered herbicide diseases are listed in 38 C.F.R. § 3.309(e).  See 38 C.F.R. § 3.816(b)(2).  This list includes ischemic heart disease, which was added to the list of covered herbicide diseases effective from August 31, 2010.  See 38 C.F.R. § 3.309(e); 75 Fed. Reg. 53202 (Aug. 31, 2010). “
      https://www.va.gov/vetapp16/files2/1609942.txt
      (this BVA claim for DIC was denied but still held the exact regulation regarding Retroactive Benefits which made it far easier for survivors to attain than trying to claim accrued if over a year had passed after the veteran's death)
      I recall here over the past 2 decades that we never dreamed the VA would ever compensate IHD for AO exposure.
      Certainly many and probably ALL  widows with a AO IHD death claim never could have filed for accrued benefits anyhow for AO IHD because there was no regulation for AO IHD prior to August 2010.
      The above claim was denied thus:
      "FINDINGS OF FACT 1. The Veteran did not have service in the Republic of Vietnam and is, therefore, not a Nehmer class member. 2. The current effective date of November 1, 2008, represents the first day of the month in which the Veteran's death occurred where the appellant's claim was received within one year after the date of his death."
      But it did contain a good explanation of Retro payments instead of "accrued" benefits, that Nehmer Class action members, as survivors, could expect even if an accrued claim had never been filed for AO IHD. 
      And just to add....many of us Nehmer Class action survivors were also Footnote One claimants.
      I have explained Footnote One here Many times since 2010 and added Rick Spataro's emails to me on it ( NVLSP Head AO lawyer) and all of that that is easily searchable here ( I hope) and was the most important and  unique aspect of Nehmer 2010.
      Agent Orange is still harming and killing our nation's veterans. But only those vets or their survivors as defined in the above citation from the BVA and in the  the Nehmer Court Orders are Nehmer class action members.
       
       
       
       
       
       
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    • Update 2:

      Just talked to a representative for my lawyer.

      I was basically told my lawyer is going to write an argument letter and present it to the BVA hearing judge - citing VA rules, regulations, and other similar cases of how my claim has been unfairly rated by the RO given all of the probative evidence.

      The motto of “deny, deny, deny until the veteran quits or dies” is alive and well.

      It should not take a veteran to present their case before the BVA to get it right.

      It is downright insulting and a spit to the face when a veteran clearly has current disabilities (that are presently being treated) that were diagnosed while in-service and documented in their SMRs.

      I find it funny how my least documented disability in my SMRs (patellofemoral syndrome in both knees) was granted when I first filed my claim in 2018. 

      Now I know first-hand how most or some of you feel in hadit.
    • Update:

      My lawyer received the decision letter before I did. I was denied on all of my contentions, and my lawyer sent in the form to appeal to the BVA.

      I find this disheartening because one of my issues (migraine headaches) are clearly documented in my SMRs and even on the separation physical exam the physician wrote “Migraine headaches (severe).”

      My SMRs also showed the frequency (3-5 per month) and intensity (prostrating in nature) of the migraines with documentation of laying down or sleep was my only relief.

      Sumatriptans did not help at all. After I left service, I was also diagnosed by a VA neurologist with migraine headaches.

      Then I had an IME w/ IMO with a board certified specialist who provided a nexus with “at least as likely as not related to his military service” in regards to my migraines.

      I just feel defeated, and my migraine headaches make me suicidal to the point I have suicidal ideation on a daily basis.

      I do no understand how the VA can deny service-connection when the evidence is cut and dry.

      The C&P exam for my migraines was done by an NP who incorrectly applied the VA definition for migraines and opined “veteran does not have chronic migraines. Chronic migraines are 15 migraine headaches per month or more.”

      Migraine headaches are not rated that way, which to me is clearly a CUE.

      I just feel so broken.
    • So, my lawyer sent an IME w/ IMO and filed a supplemental claim solely for IU on March 20.

      It was closed on March 25, and va.gov just states claim closed and nothing more.

      Hopefully, I get good news.
    • Thanks for the responses. I am filing a new claim but will continue pushing the NOD. My new question is it stated in law or statute that if during the claims process the VA finds conditions that could possibly rate service connection that was not originally filed for, the VA will “invite” the veteran to file the claim on the claims form. Reason I ask is that my private DBQs, NEXUS letter, and even the VA nurse examiner's DBQs lists bilateral upper radiculopathy as present. If it is written in statute or official guidance it might qualify as a CUE. Just looking at all angles. 
    • Everyone needs to read our stories so they can try to avoid these screws by the va...
      Thank you, everyone contributes, good or bad, all of our stories will help others, and yes, they have been stated by others for ages, over and over, but we just get depressed, and the time turns into years as they screw us..

      Welcome to the department of Veterans Affairs!  I can honestly say, "been there, done that".  

      Even after winning my tdiu in 2017, it was back to the drawing board as VA hornswaggeld my effective date.  (but of course).  

      I finally won my tdiu effective date in Feb. 2020, 18 years after I first applied!!!  

      Here is how they managed to drag mine out 18 years:

      1.  They never adjuticated my decison until 2009, where they called it "moot".  

      2.  I appealed, said it was not moot because it could result in an earlier effective date and SMC S under Bradley vs Peake.  The judge agreed with me, and ordered VARO consider me for extra schedular TDIU, under 4.16 b.  

      3.  The VARO piddles with  the remand for 3 years, and hoped I wouldnt notice.  I noticed and raised cane until they adjuticated it.  (denied of course).  

      4.  Finally, after the baord denied again, I hired a lawyer, in 2014, and appealed to CAVC.   

      5.  The lawyer won a remand, got an IMO and I won tdiu in 2017.  But at the wrong effective date, even after 15 years.  

      6.  I hired another lawyer, Chris Attig, and appealed the effective date, and he won a remand for effective date.  Trip 2 to CAVC.  

      7.  Mr. Attig won a remand, and advised me to get another IMO.  

      8.  The board awarded my earlier effective date in Feb. 2020.  

           So, I do have advice fighting VA for TDIU, they fought and fought and I hung in there and won it all.  

      ADVICE:  Dont count on VA, they could easily throw your fax in the trash.  Follow up!  
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