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

[WARREN WHITE]

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.

[broncovet]

I have never known NVLSP to "file frivolous or futile claims" for Vets.  To the contrary, NVLSP has an amazing record of winning benefits for Veterans equal to no other with a possible exception of a handful of major Vets law firms, like Ken Carpenter, CCK law, Hill and Ponton, etc.  

Rest assured, if NVLSP thinks your claim is frivolous or futile, they wont represent you.  Instead, NVLSP has won over $4 Billion for Veteran claimants, and has a 90 percent win or remand rate over thousands and thousands of cases, since its founding in 1981.    

Source:  https://www.nvlsp.org/what-we-do/individual-representation/

[FormerMember]

Statistics, extraneous references to miscoding, Links to other websites etc. Let's parse what the Veteran's actual question is without sending him on a wild goose chase for footnotes or debate what or who represents suitable legal representation. There are other venues which address these issues. This venue is devoted to SMC. Mr. White asked:

"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."

My first reply addressed this conundrum three days ago. If the Veteran filed a claim for Paralysis Agitans (or Parkinson's) in 2016, that would be the date of his Nehmer-class herbicide exposure claim-regardless of if he lost, refiled in 2021 and won. See §3.816(c)(2). Any SMC award for loss of use of any extremity or extremities, upper or lower, can be no earlier than his date of claim. (§§3.1; 3.400(a)). I suppose if the Veteran is still confused after reading all this, it would do no harm to seek counsel from the NVLSP, the Veterans Pro Bono Consortium or even private attorneys such as those mentioned above. Advice is generally free from these sources.  But to avoid confusion in my answers to others, I always quote regulation or federal precedence. I suggest others do too. It's easy for a Veteran learning this to find and confirm what another Hadit member is talking about. Vague references to what a guy at NVLSP who is the Director of Training and Publications (not the head Nehmer lawyer according to the roster-https://www.nvlsp.org/about-us/staff/) said in a footnote is not what the Vet is looking for-especially someone so severely disabled by Parkinson's. He seeks an answer about the effective date of his claim. He confuses it with his date of entitlement to SMC. They are two different dates and two different facets of VA law. Date of claim here is controlled by §3.307(a)(6)(ii). SMC effective date is controlled by what date he met the requirements of §3.350(e)(3). 

Let's clear the air for the Veteran. Assuming the rating authority did this correctly, the Veteran is rated at R1 (at a minimum) due to loss of use of all four extremities. You can confirm this entitlement by reading §3.350(e)(3) in its entirety. " The fact, however, that two separate and distinct entitling disabilities, such as anatomical loss, or loss of use of both hands and both feet, result from a common etiological agent, for example, one injury or rheumatoid arthritis [Parkinson's], will not preclude maximum entitlement. Further, if he's rated for Parkinson's, it's axiomatic he is a Nehmer class action member. I think we can all agree that pretty much goes without saying. Shoot. Maybe not...  The only thing after R1 is R2 which is nothing more than an increase of R1 based the need for a 'higher level of care' described in §3.352(b)-not §3.352(a). §3.352(a) describes regular aid and attendance and is extraneous to anything of or having to do with R2. The only way to attain an earlier effective date for his R1, as I explained in my first reply to this thread, was to file a 20-0995 supplemental (or a BVA 10 182) and show, by new and relevant evidence, that a doctor had diagnosed him with LOU of the extremity(ies) due to Parkinson's prior to October 2021.  If the evidence is deemed sufficient, that will be the revised effective date. If he's pro se, he can do it himself. If he has an accredited representative, they are presumed competent to file it. I don't see why he should seek counsel from anyone, personally. Seems he's doing a pretty bang up job so far with whomever he has considering there are only 4,650 Veterans rated R1 in the entire VA compensation system.

The entrance into the higher SMCs (L-P) begins with a single disability rated 100% schedular like IHD or a combination of disabilities due to one condition such as Parkinson's or Diabetes. You cannot become eligible for SMC at the L rate for aid and attendance without this. For those of you who like to cite to the M 21, look it up in WARMS-IV.ii 2.H.8.b. 

As for NVLSP filing frivolous claims or appeals, I have not, and did not, imply as much. Reading comprehension is essential to avoid misconstruing my or others' comments. I referred strictly to the Veteran filing the appeal or hiring another to do so (such as NVLSP). Only he is aware of his medical history. If he has no supportive medical evidence entitling him to an earlier effective date, it would be considered frivolous for him (the Veteran), or his counsel (or someone acting sua sponte) to seek the EED. That is prohibited by operation of law. It's called an act of omission or commission in §3.105. Look it up. If you commit fraud, you lose your benefits. Would any of you want that on your conscience? Does that make any sense to anyone learned in VA law here? 

As for the wrong "coding"- meaning the wrong diagnostic code being assigned from Part IV VASRD in a prior rating decision, I made sure to enunciate the pertinent regulation ( §3.816(c)(1)) concerning that eventuality at the outset in my first post. It's far easier to look up the regulation than to go on safari to look up the original 1989 Nehmer stipulations and any applicable footnotes. It confuses Veterans when we offer them contradictory advice which doesn't even touch on their question. VA law is confusing enough without offering advice which simply provokes more questions and searches. Besides, when you write up your 995 or 526 or 10 182, you better be citing to the controlling VA regulation and not Nehmer Settlement footnotes.  

SMC law is very, very unique and exponentially more confusing than any other facet of VA law. There is usually a simple answer to a SMC "what if?" This is why Theresa set up this subsection devoted exclusively to SMC. If you don't practice SMC law, you stand a strong chance of offering inaccurate advice which can irrevocably harm a Veteran. As they taught us long ago, keep it simple, stupid (KISS). I adhere to that precept. If you are somewhat versed in SMC, try to explain it via the written regulations in §§3.350; 3.352. If, not, wish them good luck. When it concerns both SMC and herbicide exposure claims, it really doesn't change  the circumstances. A code rating sheet and a claims file would easily reveal an earlier filing for a disease or injury later added to §3.309(e). That's Sherlock Holmes 101 or should be in this business. NVLSP doesn't have a corner on that market.

I wager a hundred dollars that half (or more) of Vietnam Vets don't even know they belong to a special class known as Nehmer. Conversely, 100% of us who were there simply call it Agent Orange exposure.  That's one of the reasons why they invented the VVA.

Let's do all of our members a favor and concentrate on providing an answer to SMC questions posed in this queue. Try to provide the controlling regulation if possible. By extension, do them a favor and refrain from drowning them in minutiae which is irrelevant or fails to answer the question as posed. I'm sure they will appreciate it. We have many knowledgeable members here who can answer questions. That's why Veterans come here to Hadit. Remember, we're here to answer their "how come..." questions. Oddly, I get BVA SMC decisions back where the VA's staff attorneys can't even figure it out. It's that difficult. Let that sink in.

 

Edited January 10, 2022 by asknod

[Berta]

 "Vague references to what a guy at NVLSP who is the Director of Training and Publications (not the head Nehmer lawyer according to the roster-https://www.nvlsp.org/about-us/staff/) said in a footnote is not what the Vet is looking for-especially someone so severely disabled by Parkinson's. "

It is quite obvious to me and to all the Footnote One veterans here that you have no idea what Footnote One Nehmer is.

You have no idea  who Richard Spataro is either.

He was the Nehmer Head Lawyer at time of the 2010 regulations.

I have known him via email or years. He might well find your statements here as 

"Frivolous and futile". 

Footnote One is always capitalized re: Nehmer.

Because it is the Prime essence of Nehmer and the reason why NVLSP reviewed AO claims to check the proper EED.

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

This news was one of the happiest days of my life:

https://www.nvlsp.org/news-and-events/press-releases/nvlsp-triumphs-court-orders-va-to-redecide-thousands-of-claims-for-blue-wat

I was with the Original Blue Water Navy Association long ago.

Since you have no concept of Footnote One, I imagine you failed many AO veterans,  as potential clients , who fell under it but you thought their position was "frivolous and futile."

But if they came here to hadit, and took our advice to contact NVLSP, they would have had a proper review from NVLSP.

Your utter lack of knowledge on Nehmer is frightening. And an insult to the work of  Many NVLSP lawyers and an insult to the many AO veterans here who succeeded in  AO retro under 

Footnote One.

And an insult to widows like me, as a Footnote One Nehmer  surviving spouse.

 

 

 

 

 

 

 

 

 

[Berta]

And an insult to the many Lawyers who handle AO claims and understand Footnote One such as :

https://cck-law.com/blog/nehmer-claims-what-you-need-to-know/

[Berta]

And Chris Attig:

https://attigcurransteel.com/veterans-law-updates/nehmer-footnote-1-earlier-effective-date/

and:

http://blog.finkrosnerershow-levenberg.com/wp-content/uploads/2013/08/TL10-04E-Nehmer-Training-Guide.pdf
 and

The BVA

"Training Letter 10-04 and its attached Training Guide show that footnote 1 of the Nehmer Stipulation and Order says that prior VA decisions are deemed to ...

•  

https://www.va.gov/vetapp15/Files6/1549366.txt"

and:

of course the USCAVC:

https://efiling.uscourts.cavc.gov/cmecf/servlet/TransportRoom?servlet=ShowDoc&dls_id=01204389880&caseId=91154&dktType=dktPublic

and many other sites ad finitum on Google-

Some of thee references use footnote one without the Capitals F and N because they are written by lawyers-

and you are not a lawyer.

This is not an argument over who is right-

It is a solid recognition that  established VA case Re: Nehmer

is RIGHT.

To all you legal beagles out there that USCAVC decision is Fabulous!!!!!

In part it states:

"and the BVA in 2015 and 2016, refused to apply the Nehmer EED rules, and
retroactive payment under Nehmer requires reversal because the BVA had two
opportunities to either vacate with remand or vacate and issue a decision applying
the provisions of 38 C.F.R. § 3.816 (f) and the applicable provisions of the VA
Nehmer Training Guide. The BVA’s decision is clearly erroneous. Hicks v. Brown,
8 Vet. App. 417,422 (1995). Absent the above and foregoing specifically stated
multiple CUE’s the benefits sought under Nehmer would have been granted at the
outset. King, 26 Vet. App. at 442.; Tucker v. West, 11 Vet. App. 369, 374 (1998)."

"UNITED STATES COURT OF APPEALS
FOR VETERANS CLAIMS
NO. 16-2407
SAMANTHA J. CHANDLER,
Appellant,
v.
DAVID SHULKIN,
Secretary of Veterans Affairs,

Appellee

 

 

 

[broncovet]

Alex posted: (emphasis added)

Quote

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.

I will address these attacks in order:

1.  Frivolous appeals:  NVLSP is "quite competent" to weed out any potential frivolous appeals, certainly after actually reading the Veterans cfile/vbms file, as applicable.   However, members on hadit, including myself, who have not had the opportunity to read the Veterans file, are not in a great position to discourage the Veteran by suggesting his appeal is "frivolous".   Instead, a referral to an organization well known to be exceptionally familiar with Nehmer, is indicated. 

2.  Frivolous:   One can construe, since the term was brought up no less than 3 times, that term is important.  Indeed, to reiterate, the NVLSP team, after review of the Veterans records, is in a much better position to make that determination, than any of us here at hadit who had "only" the information available that Mr. White chose to make public on hadit.  Its quite possible that Mr. White is not completely aware of what is actually contained in his file.  In a similar way, hadit members who discourage members from seeking competent representation by judging the claim "frivolous on its face" based solely on an interpretation of information which Mr. White chose to make public, is a dis service to the Veteran.  Instead, a label of a "frivolous appeal" would ONLY be indicated after reading the entire file.  

3.  "Egging a Veteran on to file frivolous appeals" was never my intent.  To the contrary, I simply directed Mr. White to a source who is not only competent to make that determination, but also to provide representation, along with a possible hearing for a Veteran who indicated he has loss of use of hands and feet.  As you astutely pointed out, reading comprehension is important here, and no where did any hadit member make any recommendations of filing either frivolous or futile appeals or claims.  To suggest other wise, would indicate "at best" being uninformed with the content of  Mr. Whites VBMS file, reading comprehension issues or, else an unfounded attack on hadit members.  

Indeed, providing the Veteran the contact information for NVLSP is superior advice to any speculation in regard to the validity of the Veterans claim or appeals (ie, whether or not they are futile or frivolous), so that a more informed course of action can be completed.  

Edited January 10, 2022 by broncovet