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Backpay for Agent Orange Exposure Claim


jqdaily

Question

My father was exposed to agent orange in the Navy while in country (he was brown water navy).  He developed ischemic heart disease and finally rated at 100% this year, after being at 90% for several years.  He hadn't applied for ischemic heart disease prior to my helping him this year.  Does the VA pay or allow backpay for agent orange exposure?  I'm just wanting to help him out and wondering how, if possible, to go about submitting information to the VA for him.

Thank you in advance!

John

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5 hours ago, jqdaily said:

My father was exposed to agent orange in the Navy while in country (he was brown water navy).  He developed ischemic heart disease and finally rated at 100% this year, after being at 90% for several years.  He hadn't applied for ischemic heart disease prior to my helping him this year.  Does the VA pay or allow backpay for agent orange exposure?  I'm just wanting to help him out and wondering how, if possible, to go about submitting information to the VA for him.

Thank you in advance!

John

Maybe.  To see if you are eligible, contact NVLSP.  They won the Nehmer class action lawsuit which provides no cost representation to Nehmer class Vets.  

As every thing with the VA its complicated.  

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  • HadIt.com Elder

If he had applied for any type of VA compensation in the past, but was denied on a rating sheet in the past for IHD, he would fall under the Nehmer Court order.

The information is found under Footnote One Nehmer here-

"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. “

 

 

Basically -many IHD claims were coded and rated as NSC for IHD or CAD in past rating VA decisions that then put these claimants under Nehmer regarding the new AO 2010 regs.

 

 

In other cases such as my claim , IHD was never coded or rated in any past rating decision but was awarded under Nehmer because it “should have been” coded etc because, as Rick said “The VA obtained medical evidence showing a diagnosis of IHD in the development of that claim.”

My evidence was from an EKG done in 1988 and other forms of medical and legal evidence.

 

 

PS Rick works now on the annual VBM.

Many here fell under Nehmer when IHD became an AO Presumptive.

By all means contain NVLSP if you feel their decision should have included Nehmer retroactive pay.

VA usually looked through C files on these AO claims to see if the IHD (CAD) had been listed and rated in a past decision.

( which could have been an award letter for another issue as well as a denial letter. 

I am a Footnote One AO IHD claimant.I proved my husband;s IHD "should have been" coded)

The retro went back to 1988 but VA used the older IHD ratings-which have changed.

 

 

Edited by Berta
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  • HadIt.com Elder

There were only two Footnote One Nehmer decisions at the BVA.

One is a denial and the other is an award- to the same veteran whose vet rep did a good job of having the EED properly resolved.

I will put those claims links in a separate topic here-

It does indicate that VA did a good job of identifying Footnote One claimants who fell under Nehmer.

However there are plenty of AO vets out there in my opinion, who do not even know they have an AO presumptive.... as well as their survivors, who could file claims under Nehmer.

What VA failed to do when IHD became a presumptive is to clearly notify everyone who should be notified, based on their past decisions.

I think three of us here were never notified but we knew we needed to file our claims anyhow.

Here is their AO contact email address:
agentorange@nvlsp.org.
 
 

 

 

 

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Knowing VA the way I do, a search of "footnote 1" in CAVC/BVA cases may not come up with results, in no small part, because the term, "foot note1" may well not be in the decision.  

Instead, they could easily award/deny or remand benefits to Vets and never mention the term "footnote 1" even tho, indeed, they qualify under footnote 1.  

As an example, there may be many different ways of stating the same thing.  VA often does not say "permanent and Total", but frequently says things like "no future exams are scheduled", or "eligiblity to chapter 35 is established.  

In this example, if I searched for "permanent and total", I may find very few hits, "even tho" this Veteran was P and T, but VA used one or more of the phrases I mentioned.  In fact, very few Vets decisions state " permanent and total", even tho this is exactly what you are.  

In a similar manner, you could well be a "footnote one under Nehmer" Vet, but your decision may  never state this.  

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