KbvetAgent

[kbvet]

By statute the HR 6395 NDAA for Fiscal year 2021 Sec. 9109 (I)Parkinsonism (J)Bladder Cancer (K)Hypothyroidism will added to the presumptive List. My question iis if filled previously and denied. Under Nehmer Footnote one will it be automatically awarded ?.

[broncovet]

Good question.  "Counting on VA" to always do what is right is often at odds with maximizing your benefits.  

My advice:  Dont count on VA.  Pick all or some of these things:

1.  Contact NVLSP and ask their attorneys about it.  

2.  Send a new supplemental claim.

3.  Send "new and material evidence" 38 CFR 3.156 explaining that your denied claim is now presumptive.  You can send that on a 21-4138.   This means your claim would be "reopened" or SHOULD be reopened.  

4.  Worst thing to do:  Do nothing.  

 

[GBArmy]

Broncovet's advise is spot on. Contact NVLSP and hopefully you can connect quickly. Barring advise that would be contradicting, which IMHO is very unlikely, you have to resubmit. Just thinking that the VA is going to sift thru all the denials and find yours and then contact you for additional info, etc. doesn't seem like it could possibly happen in a timely manner. Way too much room for error on VA's part.I should think waiting all these years is long enough for you; submit your claim. Hopefully, your effective date goes back to the original submittal date reference Neimer. (NVLSP can also opine on that as well.) 

[Berta]

GBA is correct:

" Just thinking that the VA is going to sift thru all the denials and find yours and then contact you for additional info, etc. doesn't seem like it could possibly happen in a timely manner.

They left many Vietnam Vet claimants out ( including some here and me ( widow of AO vet) when VA added new presumptives in 2010).

NVLSP reviewed all AO awards and denials ,with a copy of the decision letter,  they were contacted about ,by the claimant, regarding the AO presumptives of 2010.

Their reviews were based on  assessing if the proper EED was applied in those decisions.

This too will hold up any VARO level review of new AO claims:

https://www.nvlsp.org/news-and-events/news-articles/va-wont-fight-court-ruling-awarding-payments-to-blue-water-navy-vietnam-vet

It is a an enormous second victory for BWN vets, as the VA did no want them to fall under Nehmer and now they do.

I sent the VA all of my evidence for my AO IHD death claim regarding my husband.

It was a 'should have been  coded' claim.

After VA sent my claim and evidence to two wrong VAROS, it ended up at Philadelphia Nehmer division and they awarded it.

I think there is only one other similar claim at the BVA.I think more  claimants might fall under the "should be coded" situation in Nehmer but they don't know it.

Everything I know about Nehmer and Footnote One is here in our AO forum and I recently re posted Rick Spataro's email to me on footnote one. ( NVLSP AO lawyer)He woks on tje VBM now.

Everything I know about VA, as a hardcore claimant, means we have to do their job for them - particularly on any Nehmer claim.

I sent them their posthumous  decision of 1998 as that was where the VA should have coded my deceased husband's AO IHD. It was a 1151 award letter.

 

 

 

 

Edited January 9, 2021 by Berta
added more

[Berta]

forgot to add- in addition to the 1998 award letter, I sent them FTCA and 1151 proof ( in the award letter narrative -but I made sure they read it)

that the VA had never properly diagnosed and treated my husband's IHD and that was part of my FTCA settlement for wrongful death.

That is why it should have been coded on the decision rating sheet.

 

[kbvet]

Thanks Moderators for your replies .Will be in contact with NVLSP.Will cite Statute for reopen on 21-4138 . DAV was my POA.previous claims.

[broncovet]

NVLSP

This should be "at no cost to you" provided that, you meet their criteria for representation.   Generally their criteria is not all that "tough", you need to have a dd214 (which proves your service), and, you will likely need to provide them a copy of the decision denial, if available.  They can decide if your claim "has merit", obviously, they dont want to represent you if they think you have no chance of winning.  

However, "even if" you dont meet NVLSP criteria for representation, you can persue another attorney who may see it differently than NVLSP lawyers.   I have been turned down by attorneys, sought another attorney, hired him and won.  So dont take an attorney turn down personally, there are many reasons they turn them down, some of which have no bearing on whether or not YOU deserve benefits.  

For example, law firms who represent Vets are often simply very busy and can not take any more cases.  This does not mean you dont have a good case, it means they are booked and cant serve you. 

Also, sometimes your "case" is outside of the area of expertise for attorneys.  They may be unfamiliar with Nehmer.  NVLSP, however, is definately familar with NEhmer, they are experts at Nehmer.  

https://www.nvlsp.org/what-we-do/class-actions/

Nehmer is a class action suit the NVLSP won against VA and Im rather certain, the settlement states that the NVLSP will be compensated by VA (not by the Veteran)

NVLSP is a non profit, and may be a big help to you.  I personally have used them on another issue.  Of course, NVLSP should be glad to discuss compensation with you, my experience has been they dont charge Vets for representaion.  

Edited January 9, 2021 by broncovet