Nehmer Claims

listen this page Listen the this Page
Posted on: Tuesday, February 22, 2011

Jim,

i see the va is going to pay back pay to people who filled for ihd years ago. what about us who was diagonesd with ihd in 2001 at a va hospital and did not file because nothing was given or heard back then. i dont think this is right. i filed in oct 2010 with mets 1-3 and ejection factor 45%. should i appeal and try to get back pay to 2001. i have not heard anything on my case yet but it makes me mad. they are no different than me, i have the same heart condition and should be payed back to when the dr diagnosed. thanks

Reply:

I believe that you may have an opportunity under Nehmer to receive retroactive pay to the date that your IHD was diagnosed even though you did not file a claim.

This isn't as clear as I would like it to be. The earlier VA Nehmer Training Guide says,

The claimant need not file a new claim or a claim for earlier effective date when new presumptive condition is added. VA
must search its records to find eligible claimants and award benefits, without action on the claimant’s part.

Medical records noting the existence of a condition later made presumptively service-connected can in some instances, result in an award without a formal claim ever being filed

If a Nehmer class member is entitled to disability compensation for a covered herbicide disease, eligibility requirements must be met. The eligibility requirements are:

* The Veteran served in the Republic of Vietnam;

and

* They have applied, were denied, or a claim was inferred (by class member or VA) for benefits for one of the three new presumptive conditions between September 25, 1985, or a date prior to September 25, 1985, if the claim was pending or on appeal on September 25, 1985, and the date the regulations for these conditions become effective;

and

* They are diagnosed with one of the presumptive diseases, or a disease that reasonably may be construed as a covered herbicide disease.

The Devil is in the details. Was your claim "inferred"?

In the update to the training manual it reads;

Effective Date

The effective date of claims for service connection is the later of the date VA received the claim on which the prior denial was based or the date the disability arose.

For purposes of Nehmer IHD, PD, or HCL claims, the date a disability arose is the date VA had sufficient evidence or information to identify the existence of such a disease or, the evidence or information available was sufficient to “code” IHD, PD, or HCL as a disability pursuant to guidance regarding coding contained in the Veterans Benefits Adjudication Manual M21-1MR, and/or prior versions of such manual.

I believe that VA may find a difference between veterans who had the diagnosis made at a VA hospital where it may be an inferred claim and those who were diagnosed at a civilian facility but never reported it to VA.

If I had to guess, I'd guess your claim is under Nehmer review right now. There is a huge effort by VA going on currently to get these claims reviewed and to get them right the first time.
Training guides and other data about Nehmer are available at my site http://www.vawatchdog.org/

Complete Mailbag