Jump to content

Sponsored Ads



  • Advertisemnt

  • 14 Questions about VA Disability Compensation Benefits Claims

    questions-001@3x.png

    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
     
  • Advertisemnt

  • Most Common VA Disabilities Claimed for Compensation:   

    tinnitus-005.pngptsd-005.pnglumbosacral-005.pngscars-005.pnglimitation-flexion-knee-005.pngdiabetes-005.pnglimitation-motion-ankle-005.pngparalysis-005.pngdegenerative-arthitis-spine-005.pngtbi-traumatic-brain-injury-005.png

  • 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

  • 0
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
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

    • I would like to meet other Hadit members who live in Michigan.  We have at least two major VA Hospitals (Battle Creek, Ann Arbor).  Or maybe you go to the the John Dingell in Detroit.  

      I like Ann Arbor.  I like the fact that most of the doctors there are also at the UM Hospital.  I don't like how uickly they seem to turn over though.  
      • 2 replies
    • Really?
      I am confused.  A few days ago I spoke to a person at a VARO who said if I die from something other than service-connected my husband gets zero, zilch, squat.  Hmmmmmm, it seems the rules change willy-nilly...I have been rated 100% P & T for over 10 years, MS is static, and I am 56 years of age.

      Can a fellow Veteran shed a light on this?

      Thank you.
      • 15 replies
    • Fund raising for HadIt.com
      The site is supported through ads and ad free subscriptions, we are also asking for any support you would like to send our way. You can give a $1 or more it all helps. Keep in mind though that it is NOT tax deductible and we are NOT a non profit. As the site grows so do the costs and ads and subscription do not always keep pace with the costs. Any help is appreciated, but not required.
      • 8 replies
    • Carol Ozanecki- Blue Water vet Advocate called me with this news:

      https://www.stripes.com/news/lawmakers-launch-new-effort-to-provide-agent-orange-coverage-for-blue-water-navy-vets-1.525395

      Also there is a article in Pop Culture she sent to me----mentionig Blue Water vets buy I felt it was too political to post here. You can google it if you want to read it.

       

       
      • 9 replies
    • Cue Claim Template?
      I was told by my VSO to write a statement for a CUE claim. I am looking at the CUE because the VA didn't follow VA Training Letter 10-02 that should have directly S/C'ed me for my tinnitus without an exam, but also because they approved my Re-open claim 2 years later and the only difference was a new C&P exam.

      Any help would be great. This is what I came up with:

      I respectfully request the VA to call a clear and unmistakable error on part of the January 3, 2013 decision from the Boise VARO and to correct it.

      In this Decision Letter, I was denied service-connection for Tinnitus. I mentioned tinnitus (ringing in the ears) on my April 4, 2012 Statement in Support of Claim for hearing loss. Tinnitus is listed as a deferred claim on my September 4, 2012 Decision Letter. I submitted a Statement in Support of Claim for Tinnitus on September 5, 2012 and again on October 25, 2012.

      I was given a C&P exam on August 14, 2012 by Audiology and Hearing Aid Center in Boise, Idaho.

      I received my Decision letter with the denial of Tinnitus on January 3, 2013 stating that “Your service treatment records do not contain complaints, treatment or diagnosis for this condition”.

      During my C&P exam, it was stated that I didn’t have any mention of tinnitus in my Service Treatment Records (STR).

      On the Compensation and Pension Exam Inquiry dated July 13, 2012 on page 3, the hearing exam that was completed on 4/1/2008 is also where my tinnitus was identified while in service, but there was no mention of my tinnitus in the inquiry.

      The evidence listed on my Decision Letter dated January 13, 2013 listed Service Treatment Records from June 5, 1989 to March 3, 2010.

      In VA Training Letter 10-02 dated March 18, 2010, on page 7, item #5 it states: If service treatment records mention a complaint of tinnitus and the veteran claims tinnitus and has current complaints of tinnitus, a medical opinion regarding possible causation is not required. Service connection can be established without an opinion about the specific cause of the tinnitus because it began in service.

      The VA's failure to consider and evaluate the evidence and follow VA Training Letters that the VA had in their possession manifestly altered the outcome of the decision referred to above.

      If the Tinnitus claim was approved on the Decision Letter dated January 13, 2013, it would have increased my rating from 60% to 70% at the time.
      • 30 replies
×

Important Information

{terms] and Guidelines