Nehmer Footnote One Agent Orange claims

[Berta]

Since VA has finally started to adjudicate Glue Water Navy AO claims, this info might help-

Footnote One:

-----Original Message-----
>

Subject: Footnote One Nehmer

"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.

 

In these sole two case regarding Footnote One, that I found at the BVA, they are important for two reasons,

1. the  veteran Never gave up

2,and his vet rep was supportive.

 

https://www.va.gov/vetapp17/files9/1756192.txt     denied for earlier effective date under Footnote One

 

https://www.va.gov/vetapp19/files1/19107415.txt

SAME veteran awarded a far better EED under Footnote one.

 

Nothing is Impossible if one is willing to keep at it.

 

 

Edited July 3, 2021 by Berta

[broncovet]

If the Veteran is "unsure" if he qualifies under Nehmer for an earlier effective date, they can request assistance from the NVLSP. 

NVLSP will review the claim and determine if the Veterans is eligible for additional benefits under Nehmer. 

If the NVLSP determines eligiblity under Nehmer, they can offer to represent the Veteran, at no cost to the Veteran.  

Many times, its complicated, and often the Veteran has PTSD or some other disorder(s), that render it difficult to navigate through an exceptionally complex claims process.  Many give up, die, or become to sick to persue their claims, or, are just unaware they may be eligible.  

If in doubt, I recommend contacting NVLSP.  If you are a Vietnam Vet, chances are good you may be eligible under Nehmer.