Nehmer claim? Agent Orange Related Lung Cancer

[MEM]

Hi,

 My career army dad served in Vietnam.  He died after retirement at 48 of lung cancer.  

Does a deferred 21-534 claim from 1989 constitute a nehmer claim?  The information I've read on the internet seems to say claims that were denied are Nehmer, but I haven't seen much information about claims that were marked "deferred" and never adjudicated.  The claim includes AO presumptive illness.

Thank you all for your help and wealth of information that you share on this forum.  I've been reading it for a while and you have helped me so much!

 

Edited November 7, 2018 by MEM

[Berta]

If the DIC claim was never awarded or denied, the NOD could not have been filed.I dont see that as an important issue.

They would owe the widow DIC as well as some other ancillary benefits.

They would also pay towards the funeral expense for a direct SC death, if the widow still has that bill.

And hopefully award CHAMPVA back to the EED with some favorable CHAMPVA refunds-possibly.

But the veteran was a "career Army" veteran-that might mean he was a retiree and that is why I asked about the SBP.

 

 

 

[MEM]

Thank you for your replies Berta and Buck52!

My mom does not receive SBP or anything else from VA.  She says Dad didn't sign up for it. She did move, but it would have been after the ’89 letters were dated I believe. Memory of that time is a little fuzzy. Dad never filed a disability claim during his illness.  He was not a VA patient.  He received all cancer treatment from private doctors.  Mom did not have a VSO back then. The original claim is 29 years old.  There is more to the story which might make it difficult to decide….

I know about the ’89 and ’90 claims only because she filed another 21-534 earlier this year.  This issue has been on and off of our minds since my father became ill. I am helping her with this claim along with a VSO.  The 2018 claim was denied because a 30 day lapse in reply to a request for information she’d already sent in with the claim.  When it was denied, I called the 1-800 to inquire about our next step.  The Lord blessed us with the most wonderful rep.  She noticed the old claims and urged us to visit our VARO to view c-file and specifically claims from ’89 and ’90 and to send a request for reconsideration of 2018 along with mom’s marital records (the information they say was missing).  She was the first person to notice the claims.  My mom always said the guy at the VA told her she couldn't prove AO killed dad because he smoked,  so I just assumed she left the office in '89 and '90 depressed and upset.  She never said otherwise, and I'm not sure she remembers those horrible days clearly anyway.

We submitted the reconsideration request last week along with her marital information.  VA responded to the reconsideration by asking for the marital information AGAIN!!  I called and verified they indeed had the information the most recent letter requested.  Did they mail that letter before they uploaded her information sent with the reconsideration?

After telling my mom’s VSO about the previous claims, she submitted an inquiry on 21-4138 into the old claims.  We have not heard anything back yet regarding that inquiry, but its only been a little over a week.  The VSO had not heard of Nehmer when I mentioned it.  So, I gave her the information I found on the internet thanks to this site.  Maybe it will be used to help even more veterans and veterans' survivors.

Berta has mentioned the NVLSP here several times, so I emailed them last week. I haven't heard back yet.  I also emailed the information to my congressman which sent the VA an inquiry and is waiting response from them.  

Berta, Do you think the denial and subsequent reconsideration request of the 21-534 we filed this year will have an effect on her claim?  Will the VA notify her about the status of her reconsideration request?  Will the VA connect the 3 claims on their own, or do we need to request that?  I don’t know what IRIS is, or how to file an inquiry.  Maybe that’s what our congressman did?  Do we need to do that too?   I’m afraid asking for too many things will confuse the VA with regard to these claims.

Thank you for reading, and any help you can provide.

[MEM]

Forgot to include....Because of the lack of response from VA in '89, my mom filed another 21-534 in ’90.  I have a copy of that claim too.  Stamped "received" and dated. I asked the VA rep who was helping me at the VARO if there was any further communication in his c-file re: the '90 21-534 claim and she stated "nothing follows regarding this claim”.  There were no letters in his c-file regarding this claim at all.  This is the same VARO who received the claims 29 years ago.

[Berta]

This is a little more complex than I thought-

"After telling my mom’s VSO about the previous claims, she submitted an inquiry on 21-4138 into the old claims. "

She- being the VSO? 

"We have not heard anything back yet regarding that inquiry, but its only been a little over a week.  The VSO had not heard of Nehmer when I mentioned it. " Jesus!!!!

" I don’t know what IRIS is, or how to file an inquiry."I made a post today about how to contact IRIS.

I am not sure at this point wat to ask for at IRIS-

When NVLSP was handling my claim, I used agentorange@nvlsp.org- I dont know if they still have that addy open.

"The 2018 claim was denied because a 30 day lapse in reply to a request for information she’d already sent in with the claim.  When it was denied, I called the 1-800 to inquire about our next step." 

Did she actually get the denial letter or was it sent to a different address?

"Berta, Do you think the denial and subsequent reconsideration request of the 21-534 we filed this year will have an effect on her claim?  Will the VA notify her about the status of her reconsideration request?  Will the VA connect the 3 claims on their own, or do we need to request that?  I don’t know what IRIS is, or how to file an inquiry.  Maybe that’s what our congressman did?  Do we need to do that too?   I’m afraid asking for too many things will confuse the VA with regard to these claims."

This is what I suggest-at this point-

When -the exact date- was the claim denied in 2018? You might have time to file a timely NOD.

Wass there any more info to the decision than the lack of imely response for evidence?

If they sent the denial to the wrong address you can file  a CUE on that -maybe----not sure-

 "My mom always said the guy at the VA told her she couldn't prove AO killed dad because he smoked,  so I just assumed she left the office in '89 and '90 depressed and upset.  "

That should not be an issue if he had respiratory lung cancer- Heck, the gov sent the Vietnam vets cigarettes with their C rats. That is how many Vietna vets started smoking in the first place. A claim could be denied on that basis -smoking- but then again, that would take a medical opinion -not some half baked non medical opinion from some dumb VA "guy" acting like he knows it all.

With the timely NOD, that will get the ball rolling on the DIC claim.If they award it, then you can fight for a better EED ( They would use the date of the 2018 claim for the EED as it stands now from what I see here.

If you hear back from NVLSP- specifically Rick Spataro-let him know I had made the above suggest as to the NOD ( hopefully if there is still time to fill it) to at least try to get this n the right track-

I have to leave my PC but will think over all this when I return---- that date of the Denial might change my thinking- please let us know ASAP as to the date in 2018-the claim was denied.

 

 

 

 

 

 

[Berta]

I am changing the advice I just gave-many here might recall that I had input into some of the Modernization Act, per a call from former Secretary Shulkin's office in 2015.That regarded CUE and some stuff I forgot about 

I forgot about this - I had griped about the fact that a reconsideration request did not stop the NOD time frame. That was most unfair to any VA claimant. If a claimant 's year of NOD passed by and they waited for the Reconsideration request to be resolved instead, they would have been found to have not filed a timely NOD, and would have to start from day one again.

 But all that changed in 2015:

 

http://www.benefits.va.gov/WARMS/docs/admin21/m21_1/mr/part3/subptii/ch02/M21-1MRIII_ii_2_SecG.docx

So based on the 2015 change to M21-1MR ( I guess because I griped to Shulkin) as long as the Reconsideration request involves the criteria in the link above, and is filed within the first year after a denial, then a new decision would need to be rendered and -at that time- new apppellate rights would be give, as to NOD etc etc.

I jumped the gun on the NOD- 

Will anyone here be willing to go over the M21 link and see if they agree with me?

"Berta, Do you think the denial and subsequent reconsideration request of the 21-534 we filed this year will have an effect on her claim?"

Yes if it was filed within the first year after the denial and she supplies the VA with whatever they ask for, 

  "Will the VA notify her about the status of her reconsideration request?"

She could get a status from IRIS- use the new IRIS contact # I posted here today

  "Will the VA connect the 3 claims on their own, or do we need to request that? "

If the newest DIC claim succeeds then there are ways to possibly get a better EED. Possibly----

worth fighting for but I feel the best thing at this point is to get a DIC award.I cannot promise a DIC award.

But I am hopeful of that. The VA does not know how to connect dots- but I would not worry about that now-

"I don’t know what IRIS is, or how to file an inquiry.  Maybe that’s what our congressman did?  Do we need to do that too?   I’m afraid asking for too many things will confuse the VA with regard to these claims."

I posted the link to IRIS in Claims Research Today.

If you hear back from NVLSP and it is an email or call from Rick, tell him what I suggested as to the Recon Request, after I read over M21-1MR and the 2015 change.

Can you scan and attach that denial letter here ? (Cover C file #, name, address etc)

[MEM]