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loss of use both feet and both hands due to parkinson's.


WARREN WHITE

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i have been awarded loss of use for both feet and both hands due to parkinson's.  they gave me an effective date of oct. 2021 when i filed my claim but my medical records show symptoms back to 2016. should they have made the effective date 2016 since parkinson's falls under nehmer law.

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Yes, you are likely correct, but  Nehmer is a little more complicated than that.  You should most certainly contact NVLSP, as they are the experts in Nehmer, and will represent you for free, if they think you qualify.  

https://www.nvlsp.org/news-and-events/press-releases/va-identifies-more-than-60000-blue-water-vietnam-veterans-survivors-cases-v

In addition, Special Monthly compensation (for loss of use) should go back to the facts found, not necessarily the claim date, as its inferred.  Ask NVLSP about that also.  

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  • HadIt.com Elder
Posted (edited)

Two things are at play here when a rating for a presumptive is involved with a SMC L loss of use determination for an effective date.

1) A claim for a herbicide presumptive can be no earlier than the date of the filed claim-claimed under any scenario. So, if you filed for Parkinson's in 1990 (long before it was added to §3.309(e)) and were denied, and you you refile for it in 2021, your effective date would be 1990. Now, be realistic. Look who you're dealing with. They don't go looking for you to see if you filed in 90. It's on you to point it out. I had to do this in 2020 for a blue water Navy guy who was late to the AO party due to Procopio. He filed for IHD, DMII and PN of the lower extremities based on radiation testing at Bimini Atoll. VA denied. I spotted it in the VBMS record after we won and called them on it. They granted but tried to give him the zeros for heroes program. Got it bumped to 60 and it's back from the BVA and awaiting a local rating in Seattle. They're doing what's called a Fenderson staged rating from 2002 to the 2019 final P&T grant. 

2) According to Akles v Derwinski ( 1990?) and its later  progeny, your earliest date for an SMC award for your LOU of the bilateral upper and lowers will be the date your medical records sustain an entitlement. But....

3) The effective date for the SMC LOU of your upper and lower extremities cannot precede the award for the Parkinson's (§3.1).  §3.310 allows you to go back to your successful filing in 2010 and claim it as a secondary to the Parkinson's. But... nowhere in the four corners of the claims file will you find  a doctor who recited the magic incantation "Mr. White would be equally well served by amputation w/ suitable prostheses." prior to the December 2021 c&p. Thus, the date you filed for it will be awarded which was in August 2021. VA doctors are anal about not giving away the farm.

But, let's assume you filed for something similar before 2021 that could have been confused with Parkinson's like restless leg syndrome, for example. One thing you could do would be to invoke §3.816(c)(1):

(1) If VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989, the effective date of the award will be the later of the date VA received the claim on which the prior denial was based or the date the disability arose, except as otherwise provided in paragraph (c)(3) of this section. A prior decision will be construed as having denied compensation for the same disease if the prior decision denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. Minor differences in the terminology used in the prior decision will not preclude a finding, based on the record at the time of the prior decision, that the prior decision denied compensation for the same covered herbicide disease.

Your query above confuses the date of award of Parkinson's with the date of diagnosis of loss of use of upper and lower extremities. They are two separate subjects. 

Edited by asknod
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Posted (edited)

Since your decision sounds like its within the 1 year appeal period, then review your records and file a nod, disputing the effective date if you are happy with your loss of use SMC's.  A complete review of your records would be necessary to determine your best appeal arguments, since if you get your effective date desired, you may not care if its "under Nehmer" or something else. 
 

I noticed that quite often the Veteran wins "with a entitlement theory " different from the one he first proposed.  The complexity of both Nehmer and effective dates, suggests you need a professional(NVLSP),  forget the VSO, and trying to go Pro Se for you may well not be in your best interest.   

PAY ATTENTION to any earlier claims you made, especially if one or more of those had symptoms close to Parkinsons.  

I dont suggest even considering HLR, you are gonna likely need to go to the BVA to win this.  I think an HLR is most likely a waste of time for you.  

Did you file for SMC L (Aid and Attendance) since how could you do much for yourself without use of hands or feet?  

Berta may chime in on Nehmer, she is our resident expert on Nehmer and footnote 1.  But the easy, and perhaps best way is still contacting NVLSP...they won the Nehmer class action suit, and the victory includes payment of the attorney fees FOR  Veterans in the Nehmer class.  Contact NVLSP for details, with the website I posted above.  IF NVLSP agrees to represent you, you wont be paying attorney fees.  

I highly recommend NVLSP especially since you are apparently without use of hands or feet.  They can do a hearing for you, which would likely be highly impractical for you to go pro se at the hearing, absent your use of hands and feet.  

Remember, just because your wife or kids are the ones who gives you care, does not preclude you from getting A and A.  

https://www.law.cornell.edu/cfr/text/38/3.352 

Read the last paragraph, which specifically addresses Aid given by a family member or relative.  

Edited by broncovet
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  • HadIt.com Elder

As VA representatives, we are forbidden to launch frivolous appeals with a "throw the spaghetti at the wall and see if anything sticks" mentality. By operation of law, if Mr. White or his representative can show by the new and relevant evidence standard that he does indeed have a medical doctor who had specifically opined (at some earlier date) that his functional impairment of the lower(and/or upper) extremities was such that "he would be equally well served by elective amputation and use of suitable prostheses.", then by all means he should file a supplemental claim post haste. But...if he doesn't have that earlier diagnosis, any appeal would be frivolous on its face and squandering scarce judicial assets better reserved for more equally deserving Veterans. 

I know Veterans who offer advice here are very proactive and encourage litigation. I commend them for their efforts.  But in doing so, one has to put it in perspective. Egging a Veteran on to file frivolous appeals which are futile is counterproductive and clogs up an overloaded system. It would be better to inform them of what they need to prevail successfully than  the telephone number for the NVLSP. Mr. White appears to be ably represented as witness to his award of R1. Jumping ship to a new representative in the middle of a winning streak would actually be ill-advised. Our job is to help Veterans by giving them the best advice we can here at Hadit. That's what this is all about. I think the right approach would be for him to instruct his VSO or counsel, whoever it may be, and ask them to do a thorough longitudinal review of the claims file back to the time frame mentioned to find medical evidence to support the contention for  an EED.  

Others here may disagree with me but that's okay. Everyone has a different opinion on how to litigate. Or not to.

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