Blue Water Vet, Agent Orange, Retroactive Pay Question

[mrmo]

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.  

 

[mrmo]

Check out this topic to see what i am talking about

Seems that Tbird may have helped this individual out

[Berta]

Yes, you can contact Tbird and/or the MODs-to fix that.

Every once in a while like today I have problems with the site-but that is because I live at a high elevation and have a satelitte dish internet modem.

I could not get the 'paste as plain text' thing to pop up-

But PCs provide the best weapons we need to combat bad VA decisions.

Before you know it you will get familar with hadit site and if the acronyms are overwhelming- we do have an acronym list here:

https://www.hadit.com/va-claims-glossary-definitions-abbreviations-terms/

 

 

 

[mrmo]

Berta and others,

Guess I finally got cut loose.  Had access to attach files this morning when I signed on.  Thanks for everyones patience and help.

Here are the copies of my VA decisions you asked for.  The first two I have attached are the latest with my 30% rating for myeloproliferative disorders, and the second two are from my appeal in 2009.  As I said previously, my original claim was filed in 2006.

VA decision 01 22-1.pdf VA decision 01 22-2.pdf VA decision 05 09-1.pdf VA decision 05 09-2.pdf

[Berta]

Thanks, they came out great-

Do you have the Rating sheet for the 2009 decision?

Did they even give you a rating?

Did you even get  C & P exam? I didnt see one mentioned----

 

I have to leave site for a while but others here should be able, if you can post the rating sheet referred to in the downloads, and they -by now- should be fully award of Footnote One Nehmer-to determine if you fall under the Nehmer Court order.

I will try to find NVLS P's BWN AO email here as well--------

If there is no rating sheet that seems to me to be a CUE- I cannot explain that now- others will chime in.

I can contact NVLSP myself if needed........

Also you might fall under the "should have been coded" scenario and that could put you under Nehmer.I see theynever looked at the 2009 decision in their recent decision as far as I can tell.

I have another very pressing vet issue to deal with-dont know when I can return-other will help

 

 

 

 

Edited March 4, 2022 by Berta

[mrmo]

Ok, I'm not sure what a rating sheet is.  As far as I can see, I did not get one with my 2009 decision, and I don't think I was given any rating.  In 2009, they just turned down my application since I didn't serve "in country."  

I filed a supplemental in Jun 2020 when the BWN act was passed.  I was again turned down in about 2 weeks time and told I had no new or relevant information.  In Oct 2020 I filed a request for an HLR.  Apparently, looking at it now, in Feb 2021 the HLR reviewer found a "duty to assist error" and kicked me back into the supplemental lane.  I had a C&P exam in May 2021 and got the final decision of a 30% rating in Jan 2022.  As far as I know that is the only C&P exam I got.  In May 2006, I went to the VA for the first time to get medical care and they sent me to get an "agent orange" exam.  That was before I had ever applied (Aug 2006) for any disability benefits. 

Thanks,  mrmo 

[Berta]

"As far as I know that is the only C&P exam I got"

That makes sense- because since you were nott" incountry" the VA at that time, had no rason to o further with your claim and a cC & P exam.

However you might be another "should have been coded" claimant-per Footnote One Nehmer-

Do you have a full copy ofyour C file and VA medical records?

Were you ever treated for this disability by a private doctor?

If not how long ago has the VA treated you for myeloproliferative disorders? 

My claim was a "should have been coded" under Nehmer because the VA had malpracticed on 3 AO disabilities,  all of which, (in myinitial DIC 1151 award- now direct SC DIC ) caused his death.

You have to prove via medical evidence that VA or a private doctor treated you for this, and that your symptoms raised to at least a 10% level, therefore they should hacve coded that on the rating sheet.

You could also file a CUE on this decision- by now I think many here understand Footnote One and also CUE-everything I know about those entities is here at hadit- as I have a very pressing legal situation, I am helping another veteran with. He is not only a veteran , he is an outstanding doctor-

who does not work for VA anymore.

Please answer my questions above here and someone will help you until I can get the time to-

This April 2021 decision explains how  Footnote One works :

( PS this vet had a POA rep who know what he/she was doing! )

https://www.va.gov/vetapp21/Files4/21024763.txt