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Blue Water Navy - if Nehmer kicks in


Berta

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We have no idea yet if Nehmer will kick in with favorable EEDS for some, if not many, Blue Water Navy vets re: Procopio decision.

Now is the time for any BWN vet ( or their survivors)to pull out any past VA decisions that shows a AO presumptive was claimed .

and was rated and deemed as NSC ( not service connected).

Then ,if Nehmer kicks in, the veteran or their survivors would have a chance for a very favorable earliest entitlement date.

This depends on if Footnote One - Nehmer 2010 applies, to any Blue Water Navy AO veteran- that is yet to be determined.

AO has been the most important issue of my life, since 1991, until something else happened at VA last year- and that  serious issue, which involves all veterans in the VA health care system,  takes up most of my time these days.

Others here can help if I am not available- regarding the Footnote One aspect:

Footnote one is explained here :

https://community.hadit.com/topic/66483-footnote-one-nehmer-a0/

There are ten additional pages of discussion  regarding Footnote One and the 2010Nehmer decision, available under a search, as this caused some very high retro payments under the 2010 Regulations,  available under the search feature.

Footnote One applies to surviving spouses as well, and Nehmer has conditions for payment to the next of kin, if the veteran's spouse is deceased.

My decision is explained here as well....

My husband's IHD "should have been" coded by VA in a past 1998 decision, per Footnote One . With evidence of the IHD malpractice, to NVLSP,  the codes kicked in, and he received ,posthumously, a EED going back to 6 years prior to his death, for Ischemic Heart Disease ,never diagbnosed or treated by VA) and a subsequent additional DIC award had to be prepared.

Since many Blue Water vets have died during this long process regarding potential AO comp, their survivors will need to understand the new Nehmer regulations when and if they are prepared. I will post here any news from NVLSP on that , and also they will surely open their AO email addy again.

I am sure many BWVs do not even know that their ships might be on the AO ship's list by now. Many do not even know about the Procopio decision yet.

When Nehmer 2010 became law we had many many AO  claimants here. In time this can happen again.

If I am not available to help- I know they will get accurate advice in this forum from others.

Widows of BWN vets also have to get out  any past VA decisions that could reveal a chance for  DIC, as they might have been denied for DIC in the past.

If Nehmer kicks in as to the past accrued regulations, they also might have a valid accrued claim. All explained in this forum under a search.

We might get more BWN widows than we expect. Maybe more than veterans of BWN themselves.

8 years have passed since the last AO Nehmer Court Order, and as I say here often,  VA is not our enemy- 

time is.

I even wonder if all of the vet reps and VSOs out there have heard the Procopio news yet.

 

 

 

 

 

 

Edited by Berta (see edit history)
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Also- ( I am sure this will succeed, but they are trying to take away our rights under 38 USC 5109 and 

no advocate can let something like that stand)

I dont have the rule yet. Past Nehmer retros did not depend on CUE claims anyhow.

My 4 pending CUEs rest on one piece of evidence, a OGC Pres Op.

 

https://www.nvlsp.org/news-and-events/press-releases/nvlsp-files-challenge-to-rule-preventing-payment-of-retroactive-benefits-to

in part:

"WASHINGTON – On March 19, 2019, The National Veterans Legal Services Program (NVLSP), together with Phillip Boyd Haisley, a “Blue Water Navy Veteran,” who served in the territorial waters of the Republic of Vietnam, filed a lawsuit in the U.S. Court of Appeals for the Federal Circuit challenging the legality of a rule recently issued by Secretary of Veterans Affairs Robert Wilkie that significantly limits when past VA benefit denials can be overturned due to “clear and unmistakable error.”  According to the new VA rule, a final denial of VA benefits cannot be clearly and unmistakably erroneous even if a court later decides that VA’s basis for the prior denial clearly violates the law.  NVLSP and Mr. Haisley filed the lawsuit with the pro bono assistance of Paul Hastings LLP. 

“This VA rule is an unjust poison pill for Blue Water Navy veterans,” said NVLSP Executive Director Bart Stichman.  “They just celebrated the recent decision of the U.S. Court of Appeals for the Federal Circuit in Procopio v.Wilkie, entitling them to disability benefits for Agent Orange-related diseases.  The Court ruled in Procopio that a longstanding VA policy denying veterans who served in Vietnam’s territorial waters the statutory presumption of Agent Orange exposure clearly violated the Agent Orange Act of 1991.  Even though VA was clearly wrong all along, the agency’s new rule is a transparent attempt to immunize VA from paying retroactive benefits due to clearly erroneous past VA decision-making. This rule runs counter to Congress’ intent when it required VA to pay retroactive benefits for prior claims denial that are the product of clear and unmistakable error.”

 

 

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I sent  Rick Spataro NVLSP Head Nehmer lawyer- a request for more info on the new CUE rule.

This is BS, poor and simple- and I  will post here whatever I find out from NVLSP.

I cannot determine yet if it just regards some VA induced stalemate on Nehmer or applies to ALL potential valid CUE claims pending, or not yet filed....regarding Any VA CUE issue.

In any event it should concern ALL veterans and their survivors.

 

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Response from NVLSP- I suggest all read the pdf carefully- there seems to be a DIC change as well----I have no time yet to read the whole thing.

"Hi Berta,

It’s good to hear from you. I’m not working on the Haisley lawsuit, but I know it involves the issue of CUE in Blue Water Navy cases. However, I believe it is more generally a challenge to the VA’s new CUE regulation, which went into effect on February 19, 2019, with the other changes to the VA claims and appeals system. I think our lawsuit is a challenge to 38 C.F.R. 3.105(a)(1)(iv), which states: "Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the decision being challenged, there has been a change in the interpretation of the statute or regulation." You can find the change to the regulation on page 31 of this pdf from the Federal Register: https://www.govinfo.gov/content/pkg/FR-2019-01-18/pdf/2018-28350.pdf.

Sincerely,
Rick"

 

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