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Nehmer claims effective date

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Posted on: Thursday, March 10, 2011

Jim,

It seems that you are the person to ask for some advice.I have only one question. If a nehmer claim is back dated to 2006 with an inferred claim and granted with private doctors admissions to ihd will the claim be paid at 3 months @100% or as per training letter 10-04 1 year @ 100%...cabg x 3 in 2009

Reply:

In general terms the Nehmer claims rules are fairly simple and instruct VA to consider the effective date of the award the date of the original claim whether inferred or formal.

For example, if a veteran filed a formal claim in the past and it was denied but is currently being developed as a Nehmer class claim, the date of the original formal filing will most likely be established as the effective date.

If the veteran had filed another claim in the past and while developing that claim, VA adjudicated and denied an inferred claim, it is likely that the inferred denied claim will have an effective date corresponding to the date that the inferred claim was developed by the RO.

Otherwise, the payments fall into the usual specific section of the Schedule for Rating Disabilities http://www.benefits.va.gov/warms/bookc.asp#i

and then drill down to 4.104 - Schedule of Ratings - Cardiovascular http://www.benefits.va.gov/warms/docs/regs/38CFR/BOOKC/PART4/S4_104.DOC

and then 7017 Coronary bypass surgery: For three months following hospital admission for surgery 100%.

At 3 months following discharge the need for further convalescence will be decided and a C & P exam is often scheduled.

Per the instructions found at §4.30 Convalescent ratings http://www.benefits.va.gov/warms/docs/regs/38CFR/BOOKC/PART4/S4_30.DOC

(b) A total rating under this section will require full justification on the rating sheet and may be extended as follows:

(1) Extensions of 1, 2, or 3 months beyond the initial 3 months may be made under paragraph (a)(1), (2), or (3) of this section.

(2) Extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made under paragraph (a)(2) or (3) of this section.

(2) Extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made under paragraph (a)(2) or (3) of this section upon approval of the Veterans Service Center Manager.

In your case it is likely that the effective date of your claim, if awarded as service connected, will date to 2006. The rating will reflect the severity of the disabling condition at that time. Then in 2009 an adjustment to 100% will be made to compensate for the 3 month period after discharge from the hospital. The rating after that 3 month period to the present date will vary with the findings in your medical record of the degree of disability present at that time to now.

Once you have the decision in hand and not before, if all that appears to have been correctly applied to your retroactive award, you're finished with your claim and you may enjoy the benefits you earned with your honorable service to our country. If there appears to be any error with the dates of awards or the % of the rating that you are assigned, you should immediately appeal and seek correction.

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