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Blue Water Vet, Agent Orange, Retroactive Pay Question


mrmo

Question

In Aug 2006, at the urging of a VA oncologist/hematologist, I submitted a disability claim for  myeloproliferative disorder as a result of Agent Orange.  On Jul 5 2007, my claim was denied.  I filed an appeal on Jun 12, 2008.  The appeal was denied on May 26,2009 with the reason for both denials being;     "Service connection for myeloproliferative disorder associated with herbicide exposure remains denied because the veteran did not serve "in country" in the Republic of Vietnam during the Vietnam era."    And that was true since I was a "Blue Water sailor."
 
Shortly after the Blue Water Vietnam Veterans act of 2019 went into effect in Jan 2020, I submitted a supplemental claim for myeloproliferative disorders as a result of AO on Jun 6, 2020.  Twelve days later on June 18, my claim was denied because myeloproliferative disorders are not on the AO presumptive illness list.  On Oct 29, 2020, I filed for a Higher Level Review.  They sent me for a C&P exam in May 2021, and my claim was approved at 30% on Jan 25, 2021, retroactive to Jun 1, 2019 when I had submitted an intent to file.
 
My question is, do I have a case to request that my claim be retroactive to 2006 when I first filed?  Do I fall under Nehmer?  I assume not since my illness is not one of the presumptive AO illnesses.  Yet I would have continued to pursue my case had the fact that I did not serve "in country" was so cut and dried.  I did appeal shortly after the Blue Water sailor ruling was instituted, and my disability was approved after a Higher Level Review.  
 
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Hi mrmo Welcome to Hadit. Does your decision letter say you can appeal using HLR? It doesn't sound like it would. If allowed, do it.Berta might comment on whether Nehmer applies, but I doubt it since it isn't a presumptive to AO. I'm not sure you have continuation, but if you do have it, it would be serious back pay. Others may disagree, but I would talk to a few good lawyer groups and see what they think. 80% of back pay is still a pretty good situation and a lot better than 100% of where you are right now. 

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Thanks, GBArmy.  I figured it wouldn't be Nehmer, but in 2009 it didn't seem productive to continue to pursue since the only way to get AO disability was to have served "in country" and I hadn't.

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It would take a review of your file to know if you would likely be successful in an appeal of your effective date.  

However, out of 7 different RO decisions, not a single one "got the effective date correct", and I wound up appealing and eventuallly won back benefits to the date I believed correct.  

Nehmer is just one aspect, and, as you pointed out, Blue Water Navy.  

There are many more.  

Some of the ways which may mean you should get an EED are:

1.  38 CFR 3.156.  Did you submit new evidence in the appeal period?  

2.  Did you file benefits within one year of exit from service?

3.  Was this an "application for increase" where you were already SC for something else?

4. Liberalizing regulations.  I have not looked into this, but, Blue Water Navy, if I recall, had some liberalizing regulations, and you could benefit from those.  A liberalizing regulation means that new rules were passed which benefit Veterans more than the old rules.  

5.  Are there CUE errors in the decision(s)?  

6.  Diagnosis change?  Some Vets get denied in no small part because of a diagnosis change, but you could get an EED if it was a misdiagnosis, or, if it involved the same body parts.  This happened a. lot with PTSD, for example.  Veterans were discharged with a "personaity disorder" which was really likely PTSD.

7.  Facts found.  Your effective date is the later of "facts found" (date the doc said you were disabled) or the date filed.  I have no idea when your condition began (facts found), or what symptoms you had, or when.  

8. VA failure to "give notice" of your appeal rights.  In at least one case, the VA "did not send" the applicable forms showing how the Veteran can appeal, and, the one year appeal period did not begin to run "until the VA mails you notice of your appeal rights".  

     To determine if, under any of these above, or any other reasons, you could send your decision(s) to a NOVA attorney, and he could advise you if you would likely win an effective date appeal.  Cost:  Zero.  After discussing your case with an attorney, you can then choose:

    a.  To represent yourself.

    b.  To hire this, or another attorney.

    c.  To appeal through a VSO or non attorney practioner. 

    d.  To do nothing.  

    e.  To file a CUE, or 3.156 to reopen.  

Nova attorneys:

https://www.vetadvocates.org/cpages/sustaining-members-directory

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Can you scan and attach the decision here and the Evidence list.

Cover your C file #, name ,address prior to scanning it.

I assume the VA rated thi disability as NSC in a past denial for  it.

Apparently your ship was on the AO's ship list, a list that grew for Blue Water Navy vets, largely due to their own evidence with their ship's logs proving that they were within the Ten Mile limit-and other criteria in those regulation which are in our AO forum here.

I cannot tell yet if you fall under Nehmer- but if the VA denied and rated this condition in the past, and has conceeded now that it is directly due to AO exposure, I wouild be surprised if you do Not fall under Nehmer for more VA retro-

But I am making assumptions, I have been involved with the AO issue since 1991, long before I had any AO claim.....and I was a member of the Original Blue Water Navy Association.

NVLSP can review the decision at no charge ( They won Nehmer) I will post their addy in a few minutes and they ,(the RO,) would have to apply Footnote One to your case- Footnote one is searchable in our AO forum.

But we too can determine hopefully, if you fell under Nehmer- The decision should even reflect that.Or should state something in that regard-but maybe they never looked through your cfiles to see if you fall under Nehmer.

This is a Great Victory! Congrats on it!!!

I fear that MANY BWN vets, whose ships might well be on the ship's list or their Navy logs could prove ther exposure, and they have presumptive (or even non presumptives, that have been  medically associated with AO , still dont know about the Blue Water Navy AO regulations!

VA didnt even want to pay Footnote One Retro but they caved in on that BS.

I only heard Former Sec Wilkie mention the new BWN AO regs once on TV.

I even wonder how many vet reps and VSOs really understand the BWN regulations re: AO.

I am a Nehmer widow. Untreated and undiagnosed IHD AND DMII due to AO caused contributed to my husband's untimely death. 

 

 

 

 

 

 

 

Edited by Berta
added more.
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Thank you for sharing this- I just learned a lot!

Also the VA cannot discriminate against Blue Water Navy AO vets compared to  incountry AO veterans.

I wrote a tentative amendment long long ago for BWNVVA that was called the BWN AO Equity Act -that has all been changed ,by other advocates since-their exposure is the same as incountry exposure- I hope your scans reveal you are a Nehmer Veteran.

Can you also attach the initial denial and the rating sheet?

 

 

https://www.va.gov/vetapp07/files4/0731552.txt

in part:

"The Board must rely on the objective medical evidence when 
making its decision.  see Colvin v. Derwinski, 1 Vet. App. 
171 (1991).  Therefore, given the veteran's presumed exposure 
to Agent Orange in service, and the recent 2007 VHA opinion, 
the evidentiary record is in equipoise regarding an existing 
relationship between the veteran's current myeloproliferative 
disorder with myelofibrosis and exposure to Agent Orange in 
service.  Thus, the Board determines that 38 C.F.R. § 3.102 
is for application in this instant case.  Accordingly, 
entitlement to service connection is warranted.  38 U.S.C.A. 
§ 5107 (West 2002).




ORDER

Entitlement to service connection for myeloproliferative 
disorder with myelofibrosis is granted."

and there are more claims at BVA for this condition-

And medical news on the internet that it can be caused by Agent Orange!!!!!

https://ashpublications.org/ashclinicalnews/news/3071/Agent-Orange-and-Hematologic-Malignancies-The-Fog

https://www.oncnursingnews.com/view/agent-orange-potentially-linked-to-myeloproliferative-neoplasms

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