Defense Bill Passage and Bladder Cancer

[rebabevets]

I already get compensation for bladder cancer for Camp Lejeune Water issue, now that it is added to Agent Orange does it mean that the VA should pay me the difference between Camp Lejeune and 1992 when I retired from the Marine Corps or do I have to re-apply for it for Agent Orange, or will the VA look at at current cases already receiving bladder cancer compensation. I’m considered 100% Disabled Permanently 

[Berta]

"If they had not did Camp Lejeune then it would have automatically been agent Orange Vietnam"

If I understand this correctly, once the final regulations are posted( it is part of the NDAA) then the VA will be required to search for any incountry veteran who claimed bladder cancer in the past,who was denied, and then VA will  re open their claim, for the proper award and proper EED. (Nehmer Court Order)This is all explained here under a search for Footnote One Nehmer>

But the VA will not compensate twice for the same condition.

Then again there is still the question of the EED ( earlier effective date)-

VA gave you an EED already on your Camp LeJuene claim. What was the effective date?

What was the date you first claimed Bladder cancer ?

If there is a significant difference ( in those dates) meaning that a Nehmer claim would be beneficial to you- than I suggest, once the regulations are law, to file for the best EED possible.

I will find Footnote one and that explains the EED situation regarding past denials for what are now presumptives.

But I would believe that perhaps they would find the same EED you have now and then would not 

re adjudicate the claim under the future new presumptive.

 

 

 

[Berta]

This is from a recent post I made here in early December :

With these new presumptives coming I will post it again in the AO forum

 

"It is explained in this thread and within 10 pages here under a search of Footnote One:

Footnote One Nehmer (A0) - VA Disability Compensation Benefits Claims Research Forum - VA Disability Compensation Benefits Forums - HadIt.com Veterans

Probably thread is too long for many here to read:  so I copied that part of his email to me:

Rick Spataro, Head Nehmer lawyer of NVLSP, explained Footnote One to me this way in email as soon as the Regulations were being prepared for the 3 new AO presumptives in 2010:

 

“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. “

As I mentioned here before I was a Footnote One Nehmer claimant.

VA "SHOULD have" coded my husband's IHD but didn't because they malpracticed on it.

The medical evidence I produced gave the claim a favorable EED of 1988, for AO IHD.

In Most cases however under Nehmer II most vets had one of the new presumptives listed in past rating decisions, with a diagnostic code, rating and a NSC, instead of SC which is what a successful AO claim produced as SC, under Footnote One Nehmer, if they had a now presumptive AO disability per Nehmer II.

I stress Nehmer II, of 2010, because it changed Nehmer 1.

Footnote One is the most important part of Nehmer II. Next to the three presumptives VA added in 2010."

https://community.hadit.com/topic/82924-ao-vets-and-footnote-one-nehmer/#comment-501081 

 

[Berta]

The "should have coded" provisio of Nehmer is something no claimant should overlook.

I am the only "should have coded" successful Nehmer claimant I know of but I will check with the BVA CAVC to see if there are any others out there-

Basically it means that VA was aware of a specific disability a claimant has, who also was incountry Vietnam, or Blue Water AO ,per the Blue Water regulations,or a survivor's claim that supports the VA medical evidence that "should have coded" their spouses AO presumptive, and if the claimant can prove it "should have been coded" in any past rating sheet, they can succeed in getting a proper award and proper EED.

 

 

[Berta]

I only found one claim at the BVA under the "should have been coded" aspect of Nehmer:

 

The appellant is the veteran's son- entitled under Nehmer to these retroactive  benefits:
 
"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.

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

ORDER

Entitlement to retroactive benefits from November 13, 1985, for diabetes mellitus under 38 C.F.R. § 3.816 is granted."

Obviously it would be very difficult to prove a  AO  disability was not coded and should have been.
 

[Jocelyn Medlock-Price]

Is anyone here familiar with base NAS Dallas PFAS Contamination?  I'm suffering from the effects of that contamination but all of my claims were denied except high blood pressure.  I need andvice and help on appealing this decision. 

[GBArmy]

Hi Jocelyn Welcome to Hadit. It is going to be difficult to get a law firm that has 1) experience with VA BVA claim process and 2) experience in successfully winning PFAS claims. Many law firms concentrate on just some areas of VA law, not everything,  and as you are well aware PFAS is a relatively new health problem. My suggestion is to call some of the big law groups and find out if they either have experience in that area or could recommend someone. Try CC&K, Woods and Woods, Hill and Ponton to name a few. You may also want to ask if they happen to know a specialist that they would recommend in treating the symptoms. Maybe Dr. Ellis or Dr. Bash could recommend a specialist. If you got s-c disability for htn based on PFAS connection, that is going to help. Consider MH issues if the applicable. Good luck to you.