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Berta

Nehmer AO DIC CUE EED denied

Question

I hope this situation never comes up here but this is why advocates need to really read Nehmer before they opine on any Nehmer claim from a survivor.

The veteran ( Vietnam Vet) died in 1977 due to heart disease. The widow's claim was denied for DIC.

After the 2010 AO IHD regulations came out, she was awarded DIC from, the RO , with an EED of  August 1, 2013.

"Under the circumstances, the RO was not authorized to pay the appellant DIC benefits more than one year prior to the date of receipt of her application for DIC benefits in August 2014, and the claim must be denied. 38 C.F.R. § 3.816."

https://www.va.gov/vetapp17/files6/1735015.txt

(38 CFR 3.816 is the Nehmer AO regulation ( 2010)

The claim was at the BVA because the widow had filed CUE, thinking her EED for DIC should have been Novermber 1977( date of the veteran's death)

This facet of Nehmer is why she and any other Nehmer claimant cannot obtain an EED outside of the parameters of the Nehmer decision.

"The Veteran is a Nehmer class member. Specifically, the record shows that the Veteran served in the Republic of Vietnam, and that service connection for the cause of the Veteran's death has been granted based on presumptive service connection for ischemic heart disease, based on presumed exposure to herbicides during such service. As such, he is a Nehmer class member. However, the appellant did not have a claim for service connection for the cause of the Veteran's death that was denied between September 25, 1985, and May 3, 1989, nor did she did submit a claim for service connection for the cause of the Veteran's death between May 3, 1989, and August 31, 2010, the date on which the liberalizing law added ischemic heart disease as a disease presumptively due to in-service exposure to herbicides became effective. See 75 Fed. Reg. 53,702 (August 31, 2010). As such, the effective date must be assigned pursuant to 38 C.F.R. §§ 3.114 and 3.400. See 38 C.F.R. § 3.816 (c)(4)."

(Source- above BVA link)

The decision also contains the description of IHD thus:

"The rules for effective dates for disability compensation awarded to Nehmer class members are set forth at 38 C.F.R. § 3.816. Under that regulation, a Nehmer class member is a Vietnam Veteran who has a covered herbicide disease. Covered herbicide diseases include ischemic heart disease (to include atherosclerotic cardiovascular disease and coronary artery disease). See 38 C.F.R. § 3.816 (b) (2016). In this case, the Veteran had a "covered herbicide disease" (i.e., ischemic heart disease (to include atherosclerotic cardiovascular disease and coronary artery disease)) within the meaning of 38 C.F.R. § 3.816 (b)(2)."

and

"ORDER An effective date prior to August 1, 2013 for a grant of Dependency and Indemnity Compensation based on service connection for the cause of the Veteran's death, to include on the basis of clear and unmistakable error in a November 1977 rating decision, is denied."

I believe we have had only one situation like this here, whereby a vet member was trying to help a widow ,and the widow did not have a basis for more AO DIC retro due to the filing dates that are in the actual Nehmer Court Order as well as in 38 CFR 3.816.

The widow in the BVA case here was represented by the California Department of Veterans Affairs on the appeal.

I cant figure out why they represented her- maybe they thought she was going to succeed on the CUE,or maybe they were unable to convince her that the regulations would not support her claim of CUE-yet they still remained as her POA.....

or maybe they didnt even read the Nehmer decision and regulations at all.

Obviously the widow didnt read it either.

DIC back to 1977 would have been quite a windfall, but the regulations do not support her claim.

I feel sorry for the widow if she really expected to get 36 more years of DIC.

Just putting it here in case we ever get a similar situation.

 

 

 

Edited by Berta
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