Retroactive Payment

[Carlos C. Parscal]

I am 100 percent disabled. I was denied Hypothyrodism 2019. It is on appeal.

The VA added it as a new claim Jun 13, 2021. The claim is being reviewed under the Nehmer case, because VA added it to the agent orange diseases.

Since I am 100 percent when the claim is completd am I eligible for a rectroactive payment?

thank you

 

 

[GBArmy]

Carlos IMHO you may be. If you were denied in 2019 for not being service-connected, the new law provides for consideration under the Nehmer case for that possibility. One question would be does the new disability result in an increase in your combined rating. In other words, when did you get the 100% rating? If it was after you submitted your claim in 2019, you should be able to get at least some back pay. If you were already at 100% when you submitted in 2019, I wouldn't think you could.

[broncovet]

Carlos...

   We can not determine your effective dates or retro without a review of your file.  

    We need to know (at a minimum):

1.  When did you first file for Agent Orange?  

2.  Were you a Nehmer Vet?  (Usually this means boots on the ground Vietnam)

3.  When did your doctor first say you had symptoms?  

4.  Did you first file within a year of exit from service? 

5.  Do you have NVLSP or some other law firm helping you?  (You should, NVLSP gets paid, by the VA, under court order for Nehmer Vets, if I understand it correctly).  To make sure, if you have not contacted NVLSP, and you are a Nehmer Vet, you should do so ASAP.  Again, as part of the settlement for the Nehmer class action, Nehmer Vets get attorney fees paid by VA.  

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

[Berta]

It does appear tha you fall under Nehmer-but not enough info here.

This BVA decision dismissed the veteran's appeal because prior to the BVA decision, the RO had done a special review under Nehmer and granted the hypothyoidism claim:

"The Veteran served on active duty from December 1965 to October 1967, to include service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals on appeal from a March 2018 rating decision of the Department of Veterans Affairs Regional Office. During the pendency of the Veteran's appeal, the National Defense Authorization Act (NDAA) for Fiscal Year 2021, Pub. L. No. 116-283 § 9109, added three disorders to the list of diseases presumptively associated with exposure to herbicide agents. Pertinent in this case, it amended 38 U.S.C. § 1116 (a)(2) to include hypothyroidism. In a July 2021 DRO decision, the AOJ granted the Veteran's claim for service connection for hypothyroidism (claimed as hyperthyroid condition). That decision was based on a special review of the Veteran's claims file mandated by an order pursuant to Nehmer v. Department of Veterans Affairs due to the changes implemented in the NDAA for Fiscal Year 2021. The Veteran was informed of that decision in a July 2021 letter. Thus, as the benefit currently being sought on appeal is already in effect, the Veteran's appeal is moot and is dismissed."

https://www.va.gov/vetapp21/files8/21053928.txt

"Since I am 100 percent when the claim is completd am I eligible for a rectroactive payment?"

That depends a lot on the rating in the past denials and we dont know what you get the 100% for.

Hard to guess on this-

In my husband's case IHD was awarded under part of my Section 1151 DIC award.(under  malpractice -not for AO exposure)

He had never claimed IHD because it had been malpracticed on and never diagnosed by VA.He had no idea he had IHD and died from it.

However when the AO IHD regs came out I filed and was awarded retro for a span of 6 years prior to his death, as the EED, which they paid, although he also hd been posthumously granted 100% P & T for SC PTSD.

With more info we can help more- such as a scan of the denial,if you can attach it here- cover your C file, name, address prior to scanning it.

This article by CCK ( lawyers for veterans) has I believ the most recent rating schedule for hypothyroidism:

https://cck-law.com/blog/va-disability-for-thyroid-conditions/

 

 

 

[Carlos C. Parscal]

On 11/2/2021 at 12:54 PM, broncovet said:

Carlos...

   We can not determine your effective dates or retro without a review of your file.  

    We need to know (at a minimum):

1.  When did you first file for Agent Orange?  

2.  Were you a Nehmer Vet?  (Usually this means boots on the ground Vietnam)

3.  When did your doctor first say you had symptoms?  

4.  Did you first file within a year of exit from service? 

5.  Do you have NVLSP or some other law firm helping you?  (You should, NVLSP gets paid, by the VA, under court order for Nehmer Vets, if I understand it correctly).  To make sure, if you have not contacted NVLSP, and you are a Nehmer Vet, you should do so ASAP.  Again, as part of the settlement for the Nehmer class action, Nehmer Vets get attorney fees paid by VA.  

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

1. Hypothyrodism Feb 2016

2. Nehmer vet yes

3. Feb 2016 Hypo

4. Filed in 1979 discharged 1 Jun 79 bilateral hearing loss

5. No attorney.  I am living overseas I don't need a attorney.

 

[Berta]

It appears that you are a "Footnote One" veteran under Nehmer,as explained in this thread:

https://community.hadit.com/topic/85434-backpay-for-agent-orange-exposure-claim/

Footnote One is the essense of the Nehmer court Order, and many here have been Footnote One claimants.

You might need to zoom up the email in the link that I posted from Rick Spataro.

AO Veterans and their survivors should never need a lawyer. However that might depend on whether they get a rater with knoledge of Nehmer ( this is why VA farmed out many AO claim to raters who were specifically trained in Nehmer and Footnote One.)

This case ( a widow's claim) is a good example of how Nehmer Footnote One works.

"ORDER

Entitlement to an earlier effective date of October 20, 2009 for the grant of service connection for coronary artery disease (CAD) is granted.

Entitlement to an initial rating in excess of 30 percent for CAD is denied."

The widow succeeded in the the retro for CAD but the medical evidenece warranted only a 30%rating.

There are very few Footnote One claims that the BVA decided because most of the raters were well trained in how to handle them.

I was a "should have been coded" Footnote One Nehmer claimant.

Only two other 'Should have been coded 'claims appear at the BVA.

One was denied and the other one remanded.  Mine  was granted at the RO level.

 

https://www.va.gov/vetapp20/files2/20011797.txt