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Berta

Footnote One Nehmer 2010

Question

Broncovet asked:

, I think what Mr. Spartaro is saying is there there is a claim for IHD because its a presumptive, and the Vet need not apply for it specifically.    In other words, the effective date would be the "facts found", because the effective dates are determined by Nehmer class.  Maybe Berta can chime back in and explain "footnote 1”:

What it means is that the veteran had to have raised the IHD issue in a past claim.Or the medical evidence VA had warranted that they code the IHD as NSC with a percentage.

In other words, say a female Vietnam vet ( there were almost 11 thousand women who served incountry-Vietnam during the war)

filed for PTSD and IHD in 2007. She obtained a 50% rating for her PTSD and a NSC 30% rating for the IHD.

Her SMRs were silent for any heart disease and she offered no medical nexus of the IHD to her PTSD or to her service .She did not appeal the decision.

The VA was supposed to review all  past decisions to Vietnam veterans who might have had a NSC rating in the past for what, after Nehmer III (August 2010), became a valid AO presumptive disability.

As many here might recall- the VA screwed that all up.

The veteran above should have had her past decision pulled out and then been sent a letter advising her of the new Nehmer  presumptives and also advising her to formally file the claim for the IHD.

Many vets thought they did not have to file a claim because they probably had VSOs who didn’t understand Nehmer at all. The advice here at hadit was to File the claim.

I was one of the Nehmer claimants who VA never informed of the Nehmer decision and should have.

I filed the claim 2010, awarded 2012.

Per the Nehmer Training Guide by MOPH ( Military Order of the Purple Heart)

In part:

“The most common VA error in Nehmer decisions is misapplication of footnote 1 of the 1991 Nehmer Final

Stipulation and Order – “FN 1 Claims.”

And

"Simply put, if a disability was coded or should have been coded in a rating decision pursuant to a provision in the VA Adjudication Procedures Manual in effect at the time of the 1991 Final Stipulation and Order, there is a Nehmer claim."

http://www.purpleheart.org/ServiceProgram/Training2013/15-M-Nehmer Phase II - March 2013.pdf       (48 pages- a GREAT read on Nehmer!)

 

So basically,if  an inountry Vietnam veteran had been denied in the past for IHD, Hairy Cell B, or Parkinson’s, and they were an incountry Vietnam Veteran, and the disability was rated with a % and NSC status, and if the VA never advised them of the new Nehmer (2010), and they never heard this news on TV or in any newspapers ( many vets are still not PC savvy) they can still file a claim under Nehmer for retroactive compensation,unless they have already been compensated properly for IHD, HC B or ,Parkinsons , under a direct SC award.(the case of the recent posts here by a widow)

 

The “should have been coded part” is a little tricky…

I am the only “should have been coded” Nehmer claimant that I know of. There might be more,and I will search VA for them at the VA.

My husband in his lifetime raised the heart disease issue in his Section 1151 claim.His claim was that VA failed to properly assess and treat his PTSD and therefore could have misdiagnosed fatal conditions such as heart disease, and stroke (which the record revealed was misdiagnosed by VA for almost three weeks, after his admission to a VAMC,)

I had to continue that claim when he died, resulting in the 100% SC PTSD posthumous award from  a separate PTSD claim he had filed, and a TDIU form was filed ,and then the 1151 issue was resolved in a 1998 decision (DIC award.

But the IHD was never coded on the rating sheet at all.

I proved in my 2010 AO death claim that it “should have been coded under Footnote One.”

The veteran received no diagnosis at all for heart disease and no treatment from the VA.

The medical records I got after he died, contained the proof of the heart disease back to 1988, then 6 years of no treatment at all.

I had to practically become a cardio doc myself to decifer many handwritten records and assessments that appeared when he was transferred to a different VAMC, who had to cover up the malpractice he had received from the local VAMC.

The VA , per the DIC award c and  listed their medical errors as cause of death, clearly indicated their knowledge of the misdiagnosed and untreated  IHD and they also had the VACO FTCA report.

What they “lost” mysterious for the next 9 years was the Peer Review cardio malpractice report.

Nevertheless ,I finally found that report (which VA told me never had existed) and that fully corroborated my lay medical evidence (done within 5 months of filing my FTCA case)so I used that as evidence for my 2010 AO IHD claim and that report and other evidence gave me a favorable EED for AO IHD, which “should have been coded” but never had been –even on the DIC award that described the malpractice.

Nehmer is very well explained as to Footnote One in the MOPH link.

Basically ,if a past decision coded as NSC with a rating , any one of the 3 new 2010 presumptives, then that is a Nehmer claim.

Since  VA’s  review of past decisions of Vietnam incountry vets was faulty, it  is ‘as likely as not’ the VA still owes some Vietnam vets CASH!

Or retroactive accrued benefits for their survivors.

I believe there are still Vietnam Vets and/or their survivors out there who never learned of the Nehmer Court Order of 2010.

Please make sure your spouse has access info, and even your password to hadit, in the event of your death- whether from an AO condition or anything else.

There is more discussion here on FootNote One available under a search.

It is the most important part of Nehmer (August 2010) I have no idea, if VA adds new AO presumptives by November, if they will have a Footnote One provision.

 

 

 

 

 

 

 

 

 

 

http://www.purpleheart.org/ServiceProgram/Training2013/15-M-Nehmer Phase II - March 2013.pdf

 

 

 

Edited by Berta

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I was unable to edit my post----I mentioned the example of the female vet- I should have added that the claim was resolved prior to Nehmer, as to the 50% PTSD, and NSC IHD and not appealed.

If it HAD  been appealed as to the 2010 AO Nehmer decision, and was still pending , that alone should have trigged the VA to apply Nehmer.

I will promptly contact my good buddy, Rick Spataro at NVLSP, Head Nehmer lawyer ( and we both are Led Zepplin fans!!) if we have any questions regarding any new AO presumptives that might need clarification on their adjudication.

 

Edited by Berta
adding additional info

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