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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
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!
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.
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). “
(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.
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.
Peggy toll free 1000 last week, told me that, my claim or case BVA Granted is at the RO waiting on someone to sign off ,She said your in step 5 going into step 6 . That's good, right.?Peggy toll free 1000 last week, told me that, my claim or case BVA Granted is at the RO waiting on someone to sign off ,She said your in step 5 going into step 6 . That's good, right.?
Vync posted an answer to a question,I took a look at your documents and am trying to interpret what happened. A summary of what happened would have helped, but I hope I am interpreting your intentions correctly:
2003 asthma denied because they said you didn't have 'chronic' asthma diagnosis
2018 Asthma/COPD granted 30% effective Feb 2015 based on FEV-1 of 60% and inhalational anti-inflamatory medication.
"...granted SC for your asthma with COPD w/dypsnea because your STRs show you were diagnosed with asthma during your military service in 1995.
First, check the date of your 2018 award letter. If it is WITHIN one year, file a notice of disagreement about the effective date.
If it is AFTER one year, that means your claim has became final. If you would like to try to get an earlier effective date, then CUE or new and material evidence are possible avenues.
I assume your 2003 denial was due to not finding "chronic" or continued symptoms noted per 38 CFR 3.303(b). In 2013, the Federal Circuit court (Walker v. Shinseki) changed they way they use the term "chronic" and requires the VA to use 3.303(a) for anything not listed under 3.307 and 3.309. You probably had a nexus and benefit of the doubt on your side when you won SC.
It might be possible for you to CUE the effective date back to 2003 or earlier. You'll need to familiarize yourself with the restrictions of CUE. It has to be based on the evidence in the record and laws in effect at the time the decision was made. Avoid trying to argue on how they weighed a decision, but instead focus on the evidence/laws to prove they were not followed or the evidence was never considered. It's an uphill fight. I would start by recommending you look carefully at your service treatment records and locate every instance where you reported breathing issues, asthma diagnosis, or respiratory treatment (albuterol, steroids, etc...). CUE is not easy and it helps to do your homework before you file.
Another option would be to file for an increased rating, but to do that you would need to meet the criteria for 60%. If you don't meet criteria for a 60% rating, just ensure you still meet the criteria for 30% (using daily inhaled steroid inhalers is adequate) because they are likely to deny your request for increase. You could attempt to request an earlier effective date that way.
Does this help?
Buck52 posted an answer to a question,Tinnitus comes in two forms: subjective and objective. In subjective tinnitus, only the sufferer will hear the ringing in their own ears. In objective tinnitus, the sound can be heard by a doctor who is examining the ear canals. Objective tinnitus is extremely rare, while subjective tinnitus is by far the most common form of the disorder.
The sounds of tinnitus may vary with the person experiencing it. Some will hear a ringing, while others will hear a buzzing. At times people may hear a chirping or whistling sound. These sounds may be constant or intermittent. They may also vary in volume and are generally more obtrusive when the sufferer is in a quiet environment. Many tinnitus sufferers find their symptoms are at their worst when they’re trying to fall asleep.
Picked By66 bricks,