DIC granted, accumulated denied

[nacole]

Hi, Berta (everyone), I am curious if there’s any instructions on how to go about:

DIC is granted & accrued / death pension benefits are denied. My VA rep (Colorado VA office), recently explained to me that my mom was awarded DIC benefits ( I filed on her behalf ), effective the day of his death (my dad died Dec.30, 2017) of...

1-Pneumonia  

2-COPD

3-CAD

but, we (she) was denied accrued because the Army / VA did not owe him any money, since he never filed for benefits while alive. While that part is true, he never filed because he was told he did not have agent orange, he was told he “wasn’t in the right theater”, course that “theater” explanation is false. Vietnam establishes theater now, period. My dad was on ground (in air) for a year. Further my dad’s records I received from archives (medals included) do not have a lot of information in them. I have a hard time understanding what they do say. My dad was 191st Military Intellegence, not sure if that is why I have trouble making sense of the records they gave me or if that has anything to do with why I had such a trouble free approval on DIC portion of our claim (approved first time & expedited approval within 3 months)..to which we are grateful. However, I have an original document from 1989 that reads, “ In regards to YOU’RE request to be tested for agent orange...Donald L. Welch...” (my dad)..you’re appointment is scheduled for ...1989 at ... etc. then written in red pen on the top of the document is written “6-8 weeks”. I prusume his “testing” (set for an entire day 8am-6pm) did not inform my dad he had exposure, because he then would have filed! Yet, clearly he did (death certificate reads CAD) & DIC awarded for presumptive CAD! Throughout his lengthy medical history of:  Arteries blocked (multiple), Surgical stents, cardiac-arrest, COPD,  bronchitis-chronic, lung problems, etc. He believed he did not qualify for benefits. Months before his death he went to VA medical at his brothers insistence & on the way home from getting RX (for the first time ever from the VA) he told his brother he was told he wasn’t in the “theater” for agent orange benefits. By the time he got his first RX delivered through the mail...he was dead....of CAD. How do I prove establish that he would have filed for benefits (as far back as 1989, document attached), if they had not told him he didn’t qualify & wasn’t exposed? How do I get addditional records when he was military intelligence? I can’t even find out what battles, his medal citations are even from. I also know his helicopter crashed while he was in Vietnam and his back had either whipping marks or shrapnel scarred all over it...I want to know why. No records if him being a POW. Can anyone link me in the right direction? I’ll have to figure out how to attach documents to post- will follow through.

 

[broncovet]

I will refer you to someone who may be able to answer this:

The NVLSP.  It sounds like he is a Nehmer claimant, and there are special rules (which benefit Vets) on Nehmer Vets.  The NVLSP can answer this for you, but there is a great chance the NVLSP will help you, AT NO COST TO YOU.  You have to ask them if you qualify for this.  However, what happened is that NVLSP won a class action suit, and this suit agrees to pay Vets attorney fees for eligible Nehmer claimants.  

https://www.nvlsp.org/?gclid=Cj0KCQjwxbzdBRCoARIsACzIK2kR1v9AorQ8VYhj0796gHGTA2COjg0WXD_DFcZ90_7L8iUsCEKsZvsaAjx3EALw_wcB

[Berta]

Thanks Broncovet-

Rick Spataro, Head Nehmer lawyer at NVLSP already answered this here for me in email dated

8/9/2010 9:23:04 A.M. Eastern Standard Time I have had a long relationship with NVLSP and Rick knew I needed to explain Footnote one here at hadit, and also I was a Footnote One claimant.I have posted this recently here and many times in the AO forum since 2010.

Re:  "Subject:RE: 2 questions on Nehmer   Date: 8/9/2010 9:23:04 A.M. Eastern Standard Time From: rick_spataro@nvlsp.org To: (redacted my email addy) Sent from the Internet (Details)	g

"Hi Berta,

 

I don’t think the VCAA can be “waived” for any VA claims.  However, for some time now the VA has had special procedures in place for AO-claims associated with IHD, Parkinson’s disease, and B-cell leukemias.  Basically, they have been doing a lot of the development in anticipation of the regulation so that the claims are “ready to rate” when the final regulation is published.  They have also proposed (not sure if it’s become final) a procedure in which veterans would be able to forego a VA C&P exam if their private doctor fills out a form providing the VA with sufficient information regarding diagnosis and symptoms/severity to rate the condition.

 

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. 

Rick"

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I redacted a little more of the email as it involved a case he had before the court.

If anyone here contacts Rick as to the Nehmer decision of 2010, make sure you let him know that I, Berta Simmons, have posted here all of the pertinent info as to 38 CFR 3.816 as well as the explanation he gave me of Footnote One.

I was a "should have been coded" Footnote one Nehmer Class Action member, due to my husband's Incounty Vietnam Service and his AO IHD. I explained how that occurred many times here already.

I know of no other Nehmer claimant that regarded the "should have been coded" criteria and it involved quite a bit of work on my part, as well as winning a CUE on IHD, that had sat at my RO for years, to support that. Nehmer Phila granted that CUE and then went forward on the award letter. 6 years of accrued.-AO IHD.

When I get home from church I will read over this whole post again.

Nehmer 2010 only applies to vets who served incountry -Boots on ground-Vietnam .

Unless their ship is on the VA's AO ship exposure list.

 

 

 

Can you scan and attach here this DIC award?

 

"DIC is granted & accrued / death pension benefits are denied. My VA rep (Colorado VA office), recently explained to me that my mom was awarded DIC benefits ( I filed on her behalf ), effective the day of his death (my dad died Dec.30, 2017) of...

1-Pneumonia  

2-COPD

3-CAD"

Cover the  file and any names prior to scanning it.We dont need to see any regulations they attached- just their decision and the Evidence list.

The entire Nehmer Court order is found at 38 CFR 3.816

 

 

 

 

 

 

 

 

Edited September 30, 2018 by Berta

[Berta]

I had a minute to re-read your post:

"(death certificate reads CAD) & DIC awarded for presumptive CAD! "

Obviously he was an incountry Vietnam Veteran. WEe donty need to see the DIC award.It would help to know exactly how the VA worded the denial of accrued.Based on what I see here, the VA denial of accrued was correct, so far.

Therefore  you have to prove he fulfilled the criteria under Footnote One above.

You will need copies of his C file ( obtained from the VARO he dealt with) and a complete copy of his VA medical records, obtained from the VAMC that treated him. Actually I believe it would be his spouse, who needs to sign for those records.The VAMC Records access officer might have a short form tyhey would send to her, or she could fill it out in person. I think I might have needed to bring my husband's death certificate when I requested his med recs from the VAMC.

You will be looking for any VA  rating sheet in his lifetime, that coded IHD (CAD) as NSC with a percetage or did not code it at all, but "should have".

As I mentioned, a "should have " claim is not easy to succeed in.

 

 

 

[Berta]

I found at the BVA decision site, out of over a million decisions, only one that is under Nehmer and "should have been coded".

Analysis The appellant is seeking retroactive benefits based on his contention that the Veteran filed a claim of entitlement to service connection for diabetes mellitus due to Agent Orange exposure in 1985 (now service connected as the cause of death), that the claim was denied, and that the Court's subsequent holding in Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal., May 2, 1989) (Nehmer I) invalidated that denial, leaving the claim still pending at the time of the Veteran's death. Pursuant to the September 2010 Order, the Board finds that the claim the Veteran submitted on November 13, 1985, can reasonably be construed as a claim (formal or informal, express or implied) of entitlement to service connection for diabetes. Moreover, although the RO did not adjudicate the issue of entitlement to service connection for diabetes in the December 1985 rating decision, the diagnosis of diabetes shown in the private clinical resume dated in September 1985 should have been "coded" in the December 1985 rating decision. The RO did not adjudicate the claim so it remained pending before VA on May 3, 1989. The diabetes diagnosed at that time was subsequently determined by VA to be type II, diabetes mellitus. Accordingly, it is a covered disease and the appellant is entitled to retroactive benefits from the date of receipt of the claim, November 13, 1985. ORDER Entitlement to retroactive benefits from November 13, 1985, for diabetes mellitus under 38 C.F.R. § 3.816 is granted.

https://www.va.gov/vetapp11/files5/1140940.txt

This claim was remanded by the CAVC and additioal evidence was submitted to the BVA.This is the key to this award, in addition to the first paragraph of the analysis.

"Moreover, although the RO did not adjudicate the issue of entitlement to service connection for diabetes in the December 1985 rating decision, the diagnosis of diabetes shown in the private clinical resume dated in September 1985 should have been "coded" in the December 1985 rating decision. "

I assume that the VA had this veteran's private medical records, or at least the "resume"and that was established medical evidence when he died, and should have been coded at NSC (at that time) in a December 1985 rating  decision.

Sort of like my case-

My husband's heart disease was established in VA medical records in 1988. The VA never diagnosed or treated him for it. He never knew he had heart disease, the prime cause of his death.The General Counsel determined it was one of many malpracticed issues he had.

It "should have been coded" in my 1998 1151 DIC award.

I filed a SMC CUE and IHD CUE on that decision.2003 SMC -2004.IHC CUE 

When the Nehmer RO awarded those CUEs , that proved the VA "should have coded "his IHD in the 1998 decision.

This might help someone else out there-At least I know two of us claimants now, had a similar award under Nehmer - Footnote One.

 

 

 

 

 

 

Edited September 30, 2018 by Berta