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Backpay for Agent Orange Exposure Claim

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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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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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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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To add:  It really looks a whole lot like VA is trying to hornswaggle us with words.  In other words, instead of specifiying "P and T", they use another term which is familiar to VA, but not so much the rest of the world, "no future exams are scheduled" 

"No future exams are scheduled" really makes no sense.  Did they look at your medical record of exams to see if any exams in the future are scheduled?  Probably not.  

Often Vets are called for exams...and we dont know if the exam is a doctor wanting to see you because maybe one or more of your "tests" indicate a problem, that needs to be addressed.  Example:  your doctor may call you if your blood pressure is too high, or if your lipids are too high, cholesterol too high, etc., and this probably has nothing to do with VA benefits, except that it may mean you became eligible for additional benefits.  

It really sounds like VA deliberately "does not tell you" that they coded you as P and T, probably because they dont want you to know that its harder for them to reduce you when P and T, or because there are additional benefits you may be eligible for, but VA doesnt want you to use those additional benefits.  An example is VA dental care.  100 percent P and T Vets get dental care, but many other Vets get no dental.  

    So, you could read your decision(s) and still be unaware of being P and T (because VA often uses a code such as "eligiblity to Chapter 35 is established", instead of just coming out and saying you are P and T.).  This makes me think VA does not want us to know what benefits we may be eligible for.  There are 2 possible reasons for keeping us in the dark:

a.  It saves VA money.  If the Vet is unaware of the P and T "codes", then he often does not apply for benefits which belong exclusively for P and T vets.  

b.  It saves VA work.  If you dont know you are eligible and dont apply, the VA does not process your application.  In other words, VA is lazy.  

     The above reasons seem like they are most likely why VA almost never says, "You have been determined to be Permantent and Total" in a letter.  

Edited by broncovet
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The VA did a very good job of recognizing Footnote One Nehmer claims, at the Regional office office level. They had to because they knew NVLSP would be reviewing  their decisions if the claimant asked them to.

They never mention Footnote One in their decisions because they apply this clause correctly 99% of the time- in my opinion.***

"In 1991, NVLSP’s attorneys negotiated a favorable consent decree with the VA in Nehmer.  The Nehmer consent decree requires VA, whenever it recognizes that the emerging scientific evidence shows that a positive relationship exists between Agent Orange exposure and a new disease, to (a) identify all claims based on the newly recognized disease that were previously denied and then (b) pay disability and death benefits to these claimants, retroactive to the initial date of claim.  During the period from 1991-2010, VA recognized that scientific studies show that there is a positive association between Agent Orange exposure and diabetes, ischemic heart disease, Parkinson’s disease, and more than a dozen different types of cancer.  As a result of the Nehmer consent decree, over the last three decades, VA has paid an aggregate of more than $4.5 billion in retroactive disability and death benefits to hundreds of thousands of Vietnam veterans and their surviving family members."

https://www.nvlsp.org/what-we-do/class-actions/nehmer-agent-orange-lawsuit

***

Then again maybe some widows like me got a denial- saying my husband never had IHHD in service ......WTF?

I blasted that VARO idiot with a CUE and the posthumous award was granted.

I stated they violated  the Nehmer Court Order and  that they also violated 38 CFR 4.6 and besides most of these vets in Vietnam were kids-still in their teens when they joined the Mil and would have never been accepted into service if they had diagnosis of IHD (CAD) in their induction physical.

I am the only "should have been coded" Nehmer claimant I know of and even NVLSP agreed -when they reviewed my award retro.

 855-333-0677.   ( phone number  for NVLSP)

Edited by Berta
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