Expressed or Inferred Diabetes Claim from AO, Nehmer class

[JJM]

My father in-law first filed a form 21-526 on 8/2/2001 for prostate cancer and heart condition due to AO.  The VA has conceded that this claim remained opened from that date until 3/25/2020.  The VA conceded service connection for CAD, prostate cancer, diabetes mellitus, diabetic peripheral neuropathy, etc with an effective date of 12/20/2017.  The VA conceded on 3/25/2020 an effective date of 8/2/2001 for the CAD and prostate cancer, but denied an earlier effective date for diabetes and neuropathy.  The VA has conceded a first diagnosis date for diabetes and neuropathy of 10/3/2006.  I would like to appeal the 3/25/2020 rating decision denial of the diabetes and neuropathy to an effective date of 10/3/2006.  I am hoping to use an "expressed or inferred claim" due to the fact that the initial claim remained open continuously from 8/2001 through 3/2020, and that with an open diagnosis of CAD, that a diabetes claim was inferred.  I would appreciate any guidance on language to use, cases to refer to, and which type of appeal format to use.  This was initiated under the old system, and a Nehmer de novo review was done on 4/28/2020.  Thanks for your help!

[GBArmy]

JJM Are you a lawyer? Seriously; if not, IMHO you should be seeking professional help with experts on legalize. You're talking about some significant money here and by just missing out on just one date will more than take care of any legal fees you have to pay. Experts have problems with EED's, and to me 80% of a windfall is a lot better than 0% but saying "I lost , but I did it myself."

[broncovet]

You need to look through your file to find a document which could be regarded as a reasonably raised claim for conditions claimed.  This would involve reviewing your documents, efile (formerly called vbms file).  

Did you have other correspondence or decisions from VA between 2001 and 2020?  Do you have an IRIS email, or other written or electronic requests?  

To determine your correct effective date would require a review of your file.  GB Army does have a good idea.  If you consult with an attorney, giving him your files access, he will either offer representation or decline to represent you.  If he offers, you can decide at that time whether or not to actually hire him.  You dont have to commit to marry by going to coffee with the attorney, discussing the particulars.  Only after you have signed a fee agreement, are you locked in.  

Its not unethical to use his advice, but he may not necessariy tell you everything he knows, either!  

I won (my case) with something similar (reasonably raised claim) and incredible persistence with much help from hadit members back to 2002.  

It took a total of 17 years for me to win.  

YOU/YOUR father needs all these things to be successful in your claim:

1.  Skilled with computer searches. 

2.  Time resources to make it happen.  "I dont have time to read my file" will rarely win.  

3.  Some organization skills.  Do you have these back decisions?  Other letters?  Or, are you willing to get them and keep track?

4.  Good enough health to persist until you win, and willingness to keep going "all the way".  

5.  You may need to get an IMO, and those cost money.  Are you willing to commit at least 500 dollars to win?  Money you wont get back if you lose.  

        If you have all of the above resources, you can likely win with persistence.  Lacking one or more of the above skills will likely derail you and jeaporadize the Win. 

      OR, as GB Army says, commit about 20 percent of future retro and hire a lawyer with these skills and more.  

I put my IMO on a credit card, and paid very few attorney fees.  

       "Some" attorneys may "upfront" your IMO fees "provided that, they feel that will be a winner.  Glover Luck (Judy Glover) up fronted an IMO for me.  The reason I paid almost no attorney fees is as follows:

        When you hire an attorney IMMEDIATELY AFTER a BVA decision, the EAJA normally pays the Vets attorney fees but only at the cavc level.  My attorney fees were 6000, and eaja paid 5000 because I had also hired the attorney to represent me before the board of veterans appeals upon remand from cavc.  So I paid 1000.  It was well well worth it. 

       UNLESS you have a recent BVA decision (or special circumstances, some of which are below) you will have to pay your own attorney fees.  

       Wild card:  Are you a Nehmer Vet?  (in country vietnam?) NVLSP won a huge "Nehmer class action" suit and respesent Nehmer Vets at no cost to the Vet.  NVLSP:  

https://www.nvlsp.org/.  They will tell you if they can represent you (no cost) or not.  They have represented hundreds of Vets at no cost to the Vet.  Maybe thousands.  

Edited March 11, 2021 by broncovet

[Berta]

You said"This was initiated under the old system, and a Nehmer de novo review was done on 4/28/2020.  Thanks for your help!"

I assume you mean NVLSP did a review to make sure the retro was correct for the AO IHD ( CAD) nd the prostate cancer.

  "The VA has conceded a first diagnosis date for diabetes and neuropathy of 10/3/2006.  I would like to appeal the 3/25/2020 rating decision denial of the diabetes and neuropathy to an effective date of 10/3/2006.  I am hoping to use an "expressed or inferred claim" due to the fact that the initial claim remained open continuously from 8/2001 through 3/2020, and that with an open diagnosis of CAD, that a diabetes claim was inferred. "

The VA will not infer a diabetes claim with a CAD diagnosis.

These are two separate issues. The VA raters cannot make a medical inference because they are not doctors.

I am a widow of a AO veteran ( AO IHD, granted  AO DMII granted , and AO HBO claim- i progress 

 

Diabetes Mellitus went onto the AO regulations on May 8 2001:

https://www.govinfo.gov/content/pkg/FR-2001-05-08/pdf/01-11569.pdf

In this BVA case, which is a very good read, the veteran , had excellent medical evidence and succeeded in getting a very favorable EED.

 

"ORDER

An effective date of September 3, 1987, for the award of 
service connection for Type II diabetes mellitus secondary to 
Agent Orange exposure in service is granted.
https://www.va.gov/vetapp05/files1/0503754.txt
 

In my case ( I was the veteran;s surviving spouse) and I succeeded in getting AO DMII awarded posthumously, BUT there was never any diagnosis pr treatment for DMII by the VA in the many years my husband as a VA Patient.

Like the veteran above , I had excellent medical evidence from his VA records and his autopsy and  after I had nade a full lay medical assessment from his medical records ,I also obtained 3 IMOs and the case was awarded by the BVA.

Nothing is impossible.

The advice you got is excellent.

PS: the DMII my husband had was one of 4 major medical malpractice errors they had made,all of which contributed to his death. (FTCA/1151 awards)

In you situation, th veteran's  medical treatment records could reveal a period of undiagnosed and untreated diabetes mellitis , that could warrant a better EED.

But that is just based on my experience with my AO DMII claim.

If you need an IMO/IME, it needs to follow the criteria here at hadit iin our IMO forum.

A good IMO/IME endocrinologist would surely pick up from blood chem reports and other entries in the medical records, if, in fact, the VA did not properly diagnose and treat his DMII in a timely manner.

They will give his records the most thorough reading they will ever get,

I had to read my husband;s medical records many many times, but I was convinced the claim woud succeed and I prepared a law medical overview, refering to specifc VA records in the stack I sent to my IMO doctor, because IMOs can be very costly.

My husbands driver's licence , even his VA dental records, a crossed out entry by a doctor that I managed to decifer, and one odd VA prescribed VA med, were all part of my evidence.

contained evidence that supported my claim.

 

 

 

 

 

 

Edited March 11, 2021 by Berta
added more

[broncovet]

Regulations for effective dates follow.  There are "at least" 4 circumstances of interest, which could allow you an EED:

1. When you apply for an increase.

2.  When you apply within a year of military service.  

3.  When you submitted new evidence.  (38 cfr 3.156 B or 3.156  C) 

4.  If the VARo "did not" give you notice of your appeal rights.  

https://www.law.cornell.edu/uscode/text/38/5110#:~:text=4688.]&text=The effective date of the award of any benefit or,marriage%2C birth%2C or adoption.

[Berta]

The HbA1C test is the most definitive test for diabets

https://www.ncbi.nlm.nih.gov/books/NBK304271/

"HbA1c can be used as a diagnostic test for diabetes providing that stringent quality assurance tests are in place and assays are standardised to criteria aligned to the international reference values, and there are no conditions present which preclude its accurate measurement.

An HbA1c of 6.5% is recommended as the cut point for diagnosing diabetes. A value of less than 6.5% does not exclude diabetes diagnosed using glucose tests."

The veteran's medical records might reveal he should have been diagnosed sooner than he was, if he had this test and if his values were at 6.5% or higher.

My husband never got this test- --there are other ways to prove evidence of ratable diabetes, but it will take an IMO/IME doctor to determine that from his complete  VA medical records.

But it appears he never filed a claim that specifically mentioned diabetes mellitus.

That will be highly problematic if you claim a better EED.

[broncovet]

Berta's correct.  To establish an effective date, (under most circumstances) it can not be earlier than the date you applied.  

Important Exception:  "If" you applied within a year of exit from service, your effective date "goes back" to the day after the date you exited from service.  

But, there is an informal claim (no longer allowed, you must use the applicable form), which requires 3 criteria to "count" as an informal claim FOR INCREASE:

1.  It must be in writing.  You can not establish a claim date with words.  

2.  You must "show intent" to apply for one or more VA benefits.

3.  You have to "specify" the benefit sought.  

     The idea behind an "informal claim for increase" is you already filed the formal claim information, so this should be "on file".  So you dont have to keep filling out form after form.  

      Keep in mind this applies to a claim for increase.  A claim for increase means you already have submitted a formal application, regarding other benefits.  

      NOTE:  WITH TDIU, if you HAVE DOCUMENTATION that you applied for benefits AND you told VA you were out of work, a "reasonably raised" claim for increase (tdiu) exists.  You dont have to use the term "I want to apply for TDIU".  VA is supposed to "send you a tdiu form" if there is evidence in your file your are not working and you sought benefits.