ao Persistant

[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.  

[Persistant]

Oh I forgot to say Don's 100% was p&t.

[broncovet]

Ok, good, you got your DIC.  If he was a Nehmer Vet, and it sounds like he was, NVLSP may represent you for nothing.  (I presume a Vet widow will also be represented by NVLSP, but you would have to ask them that great question. 

http://www.nvlsp.org/what-we-do/class-actions/nehmer-agent-orange-lawsuit

[Berta]

You said:”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.” 

 

In the other post in the SMC forum: you said:

“It doesn't say anywhere on the DIC form about it being over 8 years since he was rated 100% which will increase the amount of DIC...but there's no mention of that anywhere...will they overlook that and then I have to petition for the increased amount?”

But it appears that you did receive the “higher level” of DIC because he was 100% for 8 years prior to death.

Can you scan and attach here ( cover C file #, Name) the 100% heart disease decision as to their reasons and Basis

as well as the prior DMII decision and also the DIC award decision.

Since the DIC decision was made after the Nehmer 2010 IHD regulations came out , they should have made a statement as to why they did or didn't apply Nehmer to the claim.

Did you appeal the DIC decision as to the accrued denial?

 

 

 

 

[Berta]

To add in the other thread you posted in the SMC forum , and in the link I gave, I will post the whole reply, as it could help others as well as you:

"Probably thread is too long for many here to read:  so I copied that part of his email to me:

Rick Spataro, Head Nehmer lawyer of NVLSP, explained Footnote One to me this way in email as soon as the Regulations were being prepared for the 3 new AO presumptives in 2010:

 

“As for your second question, if the VA should have coded IHD in a rating decision, the claim that resulted in the rating decision could be considered a claim for benefits for IHD under footnote 1 of the Final Stipulation and Order in Nehmer. It basically depends on the timing of the claim, rating decision, and evidence received while the claim was pending. It may also depend on the rules in the Manual M21-1 regarding coding that were in effect at the time of the claim.

Typically, though, the following example would be accurate: A veteran filed a claim for SC for a low back disability on May 1, 1990. The VA obtained medical evidence showing a diagnosis of IHD in the development of that claim. The VA issued a rating decision on April 1, 1991, but does not code IHD (list IHD as “NSC” on the code sheet of the rating decision). Under footnote 1, since the condition should have been coded in the April 1, 1991 decision, the May 1, 1990 claim should be considered a claim for SC for IHD under Nehmer. “

As I mentioned here before I was a Footnote One Nehmer claimant.

VA "SHOULD have" coded my husband's IHD but didn't because they malpracticed on it.

The medical evidence I produced gave the claim a favorable EED of 1988, for AO IHD.

In Most cases however under Nehmer II most vets had one of the new presumptives listed in past rating decisions, with a diagnostic code, rating and a NSC, instead of SC which is what a successful AO claim produced as SC, under Footnote One Nehmer, if they had a now presumptive AO disability per Nehmer II.

I stress Nehmer II, of 2010, because it changed Nehmer 1.

Footnote One is the most important part of Nehmer II. Next to the three presumptives VA added in 2010."

This is why we need to see the decisions above.

I too had filed for accrued benefits within one year of my husband's death.

I also had CUEs on his IHD and SMC which were critical to the Nehmer claim.They too were awarded.

It is possible that you might have the basis for an accrued SMC CUE claim, that could impact on  an accrued award ,if your claim is,in fact, a Nehmer claim.

This is the regulation for accrued benefits under Nehmer:

https://www.law.cornell.edu/cfr/text/38/3.816

I explained the lingo here: Jan 20, 2012

"Accrued benefits under Nehmer are governed by 38 USC Chapter 1, Part 3.

 

The traditional accrued regs under 38 USC 5121 and 3.10000(a) do not apply to Nehmer claims.

 

If the veteran was owed compensation under the 3 new presumptives, this money must go to his/her surviving spouse or any next of kin.

 

Although the Nehmer Training Guide says one does not need to apply for accrued if they are a Nehmer class member, who is eligible for accrued due to the new AO presumptives, they should formally apply for them anyhow.

 

If a Formal DIC claim has already been filed (maybe decades ago) this could be a simple letter asking for accrued benefits when their Nehmer DIC claim is readjudicated and should be sent to the VARO which sent them the Nehmer letter.

 

Many widows are eligible for accrued SMC benefits due to the new regulations."

This reminds me that if you are in fact a Nehmer Class Action Member, the VA  most likely will need info on any Estate Account you opened after the veterans death, or any Probate filings that arose after his death.

That is because Nehmer is a Class Action Case. 

 

 

 

 

 

[Persistant]

Thank you Berta for all of that information...my appeal deadline is Aug 18th and I am trying to get an attorney's representation on it but yes I do intend to file the appeal.  I wasn't aware of what you've told me though and so wouldn't have been approaching it correctly evidently.  I don't believe Nehmer is mentioned anywhere in the decisions to date.  

I will scan the docs you asked me for tonight and post them.  

I haven't got much time left to finish preparing my submission to VA and may even need to walk it to the regional office in Detroit for the sake of time when it's ready.

There have been some things over the years I believe were mistakes VA made but at the time I didn't know even a smidgen of what I've learned in the last couple years so just followed our VSO's direction which was better than many but fell short in many areas too.  I don't know if I can even go back to any of that history to change anything now.    

But it's sounding like the Nehmer designation needs to be added into all the former decisions right?   I don't know why it isn't mentioned...were we supposed to join the class action suit in some official way? 

I'm starting to scan some in now that I've covered his name and SS# on. I don't know how many decisions in the history to post, but I'll start with the ones you specifically requested. There are several on the heart.  And other conditions are in the decisions on the the heart too.

I've stayed calm and on top of things pretty good, but I'm starting to be more scattered and find it hard to keep things together that go together...the stress is getting to me as the date gets closer.  I know there are a few pages missing  in some documents and one scan of several pages quit in the middle so it's in 2 separate scans...sorry.  The scan 0009 is my submission for DIC with cover letter and decision...I think that's the one that is in 2 parts. I don't know how to name the scans and for the sake of time I'm posting them anyway. There is another couple to scan yet and it's 4:00am  so I'll have to finish tomorrow (Weds)...this is a lot to go through probably already . Thank you again!!!

I realized yesterday that I wasn't seeing your responses because I didn't click on 'notify me of replies'...now I have checkmarked it though.

Scan0009.pdf

Scan0010.pdf

Scan0011.pdf

Scan0012.pdf

Scan0013.pdf

Scan0014.pdf

[Berta]

I think all we need is the decision that awarded the PN, - 10% for each leg.

I do not see any past denials for the DMII or IHD.

It is those denials that would warrant a Nehmer review.

However- and I hope others here will chime in-

on page 2/9 of the 0012 scan,  you added ,on the side the PN awards.

I feel the PN awards along with the 40 DMII and the 100% Heart disease should have warranted consideration of SMC S....if not under Bradley V Peake, then under SMC S Housebound.

Your husband could not work, as the decision states, so I assume he would fit into the Housebound criteria.

Do you have a PN decision from VA that also shows the ratings of 100% heart, 40% DMII, and then the 2 10%s for the PN?

If so I think they committed a CUE (Clear and unmistakable error) in that decision if they did not consider SMC at all.

A SMC CUE would provide retro regardless of Nehmer. This does not appear to me to be a Nehmer claim.

I will read over the downloads again...maybe I missed the PN award.

And I will find Bradley V Peake and the Housebound criteria.