Latter or later

[380]

UNder Nehmyer I have seen beginning date of claim to be both the later date and the latter date, which is it?

[GBArmy]

Later...see https://www.law.cornell.edu/uscode/text/38/5110

[Marine Corp 69/70]

380   Read the Nehmer Law undated March 21 2021 and you should have a better idea of how it works.

[Berta]

https://community.hadit.com/topic/85442-nehmer-footnote-one-agent-orange-claims/

There are about ten pages here of different discussions of Footnote One.

The favorable AO EED only kicks in, only if the same AO disability was rated and deemed NSC in a past VA decision.

Nehmer claims falling under Footnote One ( not all of them do) are different then all other laims when it comes to the EED.

I think I posted my AO IHD death claim as an example many times here but I was a "should have been coded" Nehmer claimant.

We have had many vets here who received very favorable EEDs on their Nehmer claims.

The BVA states the regulation this way:

"Generally, the effective date of an award of service connection granted pursuant to a liberalizing law or VA administrative issue is the effective date of the liberalizing law or administrative issue, if the claim is received within one year after such date. Thus, under the provisions for liberalizing laws, awards based on presumptive service connection established under the Agent Orange Act of 1991 ordinarily cannot be made effective earlier than the date VA issued the regulation authorizing the presumption. Id. Notably, ischemic heart disease was included as a presumptive Agent Orange disease under 38 C.F.R. § 3.309(e), which was made effective by VA as of August 31, 2010. Ischemic heart disease includes, "but is not limited to" several conditions, including coronary artery disease. Id. However, Federal Court orders have created an exception to the generally applicable rules in 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114, which were later incorporated into a final regulation, 38 C.F.R. § 3.816, that became effective on September 24, 2003. See Nehmer v. United States Veterans Admin., 712 F. Supp. 1404, 1409 (N.D. Cal. 1989) (Nehmer I). That regulation defines a "Nehmer class member" to include a Veteran who has, or died from, a covered herbicide disease, as here. 38 C.F.R. § 3.816 (b)(1)(i), (b)(2)(i). The holdings in the Nehmer cases established an exception to 38 C.F.R. § 5110(g), in that "Nehmer class members" could be assigned earlier effective dates than the date of the law and regulations that established presumptive service connection for a "covered herbicide disease." See 38 C.F.R. § 3.816(c)(2); see also Nehmer v. United States Veterans Administration , 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). The regulation provides for situations where the effective date can be earlier than the date of the liberalizing law, assuming a "Nehmer class member" has been granted compensation from a covered herbicide disease. Either (1) VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989; or (2) the class member's claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between May 3, 1989 and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease. In these situations, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose, whichever is later. 38 C.F.R. § 3.816 (c)(1), (c)(2)."

https://www.va.gov/vetapp21/files8/a21013050.txt

 

[Berta]

To add- if you have received an award on an AO claim, to include a Blue Water Navy Agent Orange award and you feel your EED is not correct, per Footnote One , contact:

Toll-Free Phone Number: 855-333-0677
Email: agentorange@nvlsp.org 

Many of us here had NVLSP review our AO award letters to make sure Footnote one and all other provisions of the EED under Nehmer were correctly applied.

[Vync]

I still feel it is wrong that they say you had to have filed a claim which was denied during that period to qualify for an earlier effective date. A vet could have a documented AO-related medical condition and talk with the VSO or lawyer to learn that it is not something that could have been claimed because it was not yet defined in the rating criteria. Additionally, the VCAA of 2000 was not in effect at the same time, so the VA even less helpful than after that law went into effect. The VSO or lawyer tells the veteran that it is basically futile to apply because the VA would deny it anyway, so the vet winds up not filing. Years later, the VA laws are changed and you have to had actually filed a claim in order to get an earlier effective date. Those veterans are out a lot of retro.

[Berta]

Yes, there are probably many who are out of retro on the Footnote One criteria.

Still, it pays, whatever a vet rep might say, to make sure all of your disabilitis, even those at NSC, are documented on rating sheets.

The only exception tothis is if, as NVLSP lawyer Richard Spataro stated in his email to me ,

if th disability "should have been coded".

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. “

I found only two other "should have been coded" BVA decision years ago and mine was a "should have been coded."  as a successful AO IHD claim, granted by the Philadelphia VARO.

This vet did get a better EED and it appears he was a "should have been coded " Nehmer veteran but the decision does not state tthat specifically.

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

The new BVA deciion site is useless as to narrowing down the search terms, but I did find this case there- and feel perhap this statement by the BVA could warrant a CUE for any veterans whose AO disability( NSC) Should have been coded:

"The footnote says, in effect, that prior VA decisions are deemed to have denied SC for any condition that paragraph 46.02 of the M21-1 (in 1991) required to be coded in the rating decision. At that time, the M21-1 said that the rating decision should identify and "code" each diagnosis shown by medical records even if not claimed. For example, if the VA RO in 1990 denied a claim for service connection for arthritis and the Veteran's medical records showed a diagnosis of ischemic heart disease, the Manual required VA to list the heart disease as a non-service connected in the rating decision. Under the Nehmer Training Guide, the RO decision is treated as having denied a claim for ischemic heart disease even if it did not code the disability as the Manual required."

That bears repeating -" At that time, the M21-1 said that the rating decision should identify and "code" each diagnosis shown by medical records even if not claimed."

https://www.va.gov/vetapp21/Files8/A21013050.txt

They mean the 1991 M21-1. 

This is why the VA had to award my AO IHD claim.

VA medical records back to 1988 showed he had been diagnosed with a sinus infection. He had collapsed while at work at the VAMC nd was rushed to the ER.

After his sudden death I obtained his medical records and was able to prove there had been a heart attack that day,not a sinus infection. The EKG they did was clearly abnormal.

I felt my EED should have been August 1988 ( the date of the actual VA ER Certificate) but the Nehmer lawyer said it was October 1988 because that is the first mention of heart disease in a C & P exam. This had been a C & P exam for PTSD. I was stunned because the C & P results and exam never showed up with the medical records or in  his C file, and it was the only time any VA doctor had mentioned the heart disease. The exam however caused the VA to propose to reduce his 30% SC for PTSD to10%.He got that letter on Christmas Eve 1988. I prepared a scathing NOD using the regulations they used to reduce, against THEM and the VARO dropped the idea and restored the 30%.

Your medical records could well reveal that you had a NSC disability  that "shoul have been coded" and "identified" based on the BVA statement above.

I would file a CUE on the Nehmer award you got -if I were you.

It appears to be violations of 38 CFR 4.6 as well as violation of the Nehmer Court Order and the M21-1 requirement to identify and code properly any disability they know you have.

 

 

 

 

 

 

 

Edited December 30, 2021 by Berta
added more.