Jump to content
  • Latest Donations

  • Advertisemnt

  • 14 Questions about VA Disability Compensation Benefits Claims


    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 ...
    Continue Reading
  • Ads

  • Most Common VA Disabilities Claimed for Compensation:   


  • Advertisemnt

  • Advertisemnt

  • Ads

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

    employment 2.jpeg

    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

Sponsored Ads

  • Searches Community Forums, Blog and more

  • Donation Box

    Please donate to support the community.
    We appreciate all donations!
  • Available Subscriptions

  • 0

Nehmer AO DIC CUE EED denied


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."


(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)."


"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
added more

Share this post

Link to post
Share on other sites

0 answers to this question

Recommended Posts

There have been no answers to this question yet

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now

  • Ads

  • Ad

  • Latest News
  • Our picks

    • SHOW YOUR SUPPORT: Ad Free Subscriptions to the Forum available
      Ad free subscriptions are available for the forum. Subscriptions give you the forums ad free and help support the forum and site. Monthly $5 Annually $50 https://community.hadit.com/subscriptions/

      Every bit helps - Thank you.

      • 0 replies
    • Choosing a VA Disability Attorney Means Learning What Questions to Ask
      Choosing a VA Disability Attorney Means Learning What Questions to Ask. Chris Attig - Veterans Law Blog 

      <br style="color:#000000; text-align:start">How to Hire an Attorney For Your VA Claim or Appeal Free Guidebook available on the Veterans Law Blog

      I got an email the other day from a Veteran.  It had 2 or 3 sentences about his claim, and then closed at the end: “Please call me. So-and-so told me you were the best and I want your help.”

      While I appreciate the compliments, I shudder a little at emails like this.  For 2 reasons.

      First, I get a lot of emails like this.  And while I diligently represent my clients – I often tell them we will pursue their claim until we have no more appeals or until we win – I am most assuredly not the best.

      There are a LOT of damn good VA Disability attorneys out there.  (Most, if not all, of the best are members of the National Organization of Veterans Advocates…read about one of them, here)

      Second, I don’t want Veterans to choose their attorney based on who their friend thought was the best.  I want Veterans to choose the VA Disability attorney who is BEST for their case.

      In some situations, that may be the Attig Law Firm.

      But it may also be be Hill and Ponton, or Chisholm-Kilpatrick, or Bergman Moore.  Or any one of the dozens of other attorneys who have made the representation of Veterans their professional life’s work.

      There are hundreds of attorneys that are out there representing Veterans, and I’m here to tell you that who is best for your friend’s case may not be the best for your case.

      How do you Find the Best VA Disability Attorney for your Claim?

      First, you have to answer the question: do you NEED an attorney?

      Some of you don’t...
      • 1 reply
    • VA Emergency Medical Care
      VA Emergency Medical Care
      • 3 replies
    • Veterans Appeals Improvement and Modernization Act
      Veterans Appeals Improvement and Modernization Act
      • 0 replies
    • Thanks Berta for your help. I did receive my 100% today for my IU claim on 6/20/2018. It only took 64 days to complete and it is p&t. Thanks for your words of wisdom. 

Important Information

{terms] and Guidelines