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Nehmer Ihd Decision Finally Arrived.


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#1 hawkfire27

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Posted 28 September 2011 - 06:00 PM

Hi All just looking for some thoughts and advice on the recent rating I received for my Ischemic Heart Disease decision from the VA.

The Nehmer claim went back to July 1988. I was found to be rated 30% after evidence of IHD was submitted (coded) at that time during a C&P for PTSD.

Then I was rated 100% in 1993 to 1994 for Coronary Bypass surgery x5. Then it went back down to 30%.

Then I was rated 60% from August 2010 when they did the C&P for my recent AO claim.

I have previously submitted service connection for IHD approx. 4 times.

Now the interesting thing is the evidence they used. It is all listed but it is contradictory, and found in the VA favor instead of the veteran.

For the initial 1988 rating of thirty percent it states. "Evidence shows you suffered a myocardial infarction in April 1988, this is evidence in a VA exam submitted in July 1988. This is the initial claim date for the purposes of Nehmer". etc. etc. Now in the rating portion it says: "While evidence of a heart condition is shown in a VA Exam done in July 1988, a myocardial infarction was ruled out. A rating of 30% is assigned due to moderate reoccurring episodes of angina pectoris, as shown in the evidence".

Now in the Rating for 100% in 1993 it says " Evidence shows you we admitted for possible myocardial infarction. This was ruled out by Dr. *******. However, an angioplasty was performed at this time, and evidence of post myocardial infarction was found." and "It was found in evidence that you had a CABG x5 performed in April of 1993. This qualifies you for temporary 100% for one year and one month from the date of surgery.

Then the rating dropped back to 30%. "You have been assigned a rating of 30% from June 1994.........There is no evidence of cardiac abnormality. A stress test performed in 1990 shows no cardiac symptoms and was normal ......You denied any shortness of breath, chest pain on exertion or dyspnea, a finding of 30% is appropriate"....

The rating for 60%..."Evidence shows a history of heart disease abnormalities and severe unstable angina pectoris. IN a VA exam performed in August 2010 Dr. **** found evidence of IHD. An electrocardiogram found wave abnormalities, and an ejectionfraction of 45. METs are estimated at 4. Evidence also show a valve insuffiency due to post myocardial infarction, and previous CABG surgery. Patient is currently medically managed and it at a maximum for this therapy".

0% SC for Bypass Scar on Chest, (didn't include the scar from my groin to my ankle where they took the vein out to use in my heart (which would bring it to 10% for SC'ed scar)

SMC S from 1993 to 1994, and from August 2010 to


O.k so now that is out of the way. My perspective. I have been on SSD since my first heart attack in 1988, I have received multiple checks on this since I was first rated with SSD. Each time i was found unemployable solely due to my heart condition. I have been on medications since 1988 that I can never stop or my heart will stop beating. The VA have based some of the ratings on estimated ejection fractions while the actual tests have a much lower ejection fraction that was never taken into consideration. I have not been allowed to take a stress test by my cardiologist for nearly ten years because of the liability issue. I have been told never to take one because it may kill me. I take around 10 medications just to keep my heart going and have since 1988. I don't understand why I received a 30% rating. (One of my doctor in the evidence they reviewed stated the the time that I was "the worst case of Coronary Artery Disease I have ever had the misfortune to treat. This patient is a candidate for heart transplant". My heart has not gotten better and it has not gotten worse. I don't understand how I could be considered unable to work and completely disabled by the SSD and VA think I have a little angina? Very weird. And apparently I had a heart attack then I didn't then I did, (in 1988). But I actually have had three separate ones. I have had multiplle angioplastys until my CABG x5 and I am not able to be treated surgically since 1993 when I had my surgery. Yes my angina went down after the CABG because I could no longer do anything after that and my level of activity went down drastically to the point of not being able to exercise. So using subjective statements about how I felt is not very good evidence (purely subjective and circumstantial).

Does any know how I should approach this. Should I do a NOD or DRO review? We are talking about 30 years of retro SMC S (Also rated PTSD 100% from 1988) if this goes through so it is definitely worth my time, I just don't know the best way to approach this..... I currently have another claim in, should we wait for this to be decided? (Could take too long though).....


Anyway if you have any input let me know! :-)



(Edited for spelling errors)

Edited by hawkfire27, 28 September 2011 - 06:13 PM.


#2 Berta

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Posted 29 September 2011 - 07:06 AM

WOW_ your claims sounds just like mine in many ways- even the 1988 date.

"And apparently I had a heart attack then I didn't then I did, (in 1988)"

I proved misdiagnosed heart attack with the entire EKG strip.Is the strip in your med recs?

The Nehmer update from NVLSP PDF I posted the other day here shows that Footnote One claims ( the essence of Nehmer retro) are being buggered up by the Nehmer VA people.

"Anyway if you have any input let me know!" :

Here's the email I got yesterday from NVLSP: (I had attached the NOD on my award of Feb 2010 when I realized maybe I forgot to send it to them.)

"Dear Ms. Simmons:

Thank you for the update and the scanned NOD. To date, NVLSP has not received a copy of a new decision on your claim from the VA. Once we do, we will review it to ensure that the VA assigns the correct effective date for your IHD benefits. We will contact you about the results of our review at that time. Please let us know if your contact information changes.


Sincerely,


Allison Monyei
Staff Attorney*
National Veterans Legal Services Program
agentorange@nvlsp.org <mailto:agentorange@nvlsp.org>

1.855.333.0677"

Did you email NVLSP at the AO addy I have been posting here since last Fall?

If so please contact the NVLSP lawyer who responded to you.

NVLSP has our back on these AO claims under the 3 new presumptives.

NVLSP is a pro bono l;aw firm- the one who won the Beverly Nehmer decision and court case.
They are certainly not charging any AO claimant to review their VA AO Nehmer decision.

The PDF Power point was done by Bart Stickman, NVLSP (and writer for the VBM)

Edited by Berta, 29 September 2011 - 07:08 AM.


#3 Pete53

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Posted 29 September 2011 - 02:34 PM

Good Luck and do what Berta suggested.

#4 hawkfire27

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Posted 30 September 2011 - 02:13 AM

Hey Berta thank you for taking time to reply and offer your advice.....

YES I still have my EKG from 1988 (I don't know how but I do!!!!)

The VA have established July 26 1988 as the EED for Nehmer purposes, which I have no problem with, I do have a problem with the low ball percentage of 30% as at the same time Social Security granted me SSD because I was not able to work, and had diagnosises of severe coronary artery disease severe heart disease and severe angina etc etc, and yet they have given me 30% for angina, I didn't even get teh there noths of temporary 100% for the myocardial infarction. I even went through Voc Rehab because I was unable to continue in the job I had and was trained for. They used a doctor note to justify the 30% where the doctor said I could return to work on May 8th 1988 even though I had been readmitted to the hospital with severe angina and angioplasty and was in hospital until May 18th......It's just ridiculous that they have ignored evidence they even have listed in my ratings decision.

I guess I just need to go over each piece of evidence and find something in the evidence that contradicts it and quote the "in favor of the veteran" law or something.

DO you think a DRO review with an interview before the adjudicator would be best in this situation? Of should I just file a NOD.

It is my understanding the NVLSP would only be looking at the EED for nehmer and not the ratings given, just that A RATING was given???? Am I wrong? Will they help me with appealing the rating? Or just the Nehmer EED?

Thanks again for your time

Hawk




WOW_ your claims sounds just like mine in many ways- even the 1988 date.

"And apparently I had a heart attack then I didn't then I did, (in 1988)"

I proved misdiagnosed heart attack with the entire EKG strip.Is the strip in your med recs?

The Nehmer update from NVLSP PDF I posted the other day here shows that Footnote One claims ( the essence of Nehmer retro) are being buggered up by the Nehmer VA people.

"Anyway if you have any input let me know!" :

Here's the email I got yesterday from NVLSP: (I had attached the NOD on my award of Feb 2010 when I realized maybe I forgot to send it to them.)

"Dear Ms. Simmons:

Thank you for the update and the scanned NOD. To date, NVLSP has not received a copy of a new decision on your claim from the VA. Once we do, we will review it to ensure that the VA assigns the correct effective date for your IHD benefits. We will contact you about the results of our review at that time. Please let us know if your contact information changes.


Sincerely,


Allison Monyei
Staff Attorney*
National Veterans Legal Services Program
agentorange@nvlsp.org <mailto:agentorange@nvlsp.org>

1.855.333.0677"

Did you email NVLSP at the AO addy I have been posting here since last Fall?

If so please contact the NVLSP lawyer who responded to you.

NVLSP has our back on these AO claims under the 3 new presumptives.

NVLSP is a pro bono l;aw firm- the one who won the Beverly Nehmer decision and court case.
They are certainly not charging any AO claimant to review their VA AO Nehmer decision.

The PDF Power point was done by Bart Stickman, NVLSP (and writer for the VBM)



#5 Berta

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Posted 30 September 2011 - 07:18 AM

I sure commend you for doing your VA homework on all this-because you have an excellent handle on the regs as well as your disability.
This is how claims are WON!

“YES I still have my EKG from 1988 (I don't know how but I do!!!!) “

The EKG should clearly state on top of the bands 'abnormal' EKG or usually expanded to ' possible inferior wall ischemia” or something brief that denotes the initial diagnosis. The PRT etc axis etc also reveal a lot.



“I didn't even get teh there noths of temporary 100% for the myocardial infarction. “

You are right and that is in the IHD schedule of Ratings -I am seeking that too as accrued under Nehmer.
3 months temp 100% after IHD heart attack.1988 (misdiagnosed but proven as IHD CAD)

“DO you think a DRO review with an interview before the adjudicator would be best in this situation? Of should I just file a NOD. “



"It is my understanding the NVLSP would only be looking at the EED for nehmer and not the ratings given, just that A RATING was given???? Am I wrong? Will they help me with appealing the rating? Or just the Nehmer EED? "

It would not make sense to me for them to only consider the EED without looking at the ratings because it is the ratings that provide the correct retro as well as the proper EED.

Their email addy is in the email from NVLSP I got and posted here.

But it is good idea to go to their web site first at this link and read over what info they need for initial contact.

I printed this stuff off and then prepared my first email to them off line so that I had link to the decision in 1995 that put my IHD claim under Nehmer and so I could give them concise info for the little questionnaire in this link:

http://www.nvlsp.org...eginsReview.htm

Are you 100% sure the VA has your SSDI info?????

I have had more input from NVLSP in the past year then VA ever gave me on my claims.

"It's just ridiculous that they have ignored evidence they even have listed in my ratings decision."

They are superb at that. I have never received a proper decision in the past 17 years until I raised Hell and raised 38 CFR to them. And even when I sent them the actual regs, they still couldn't apply them right.

However my 2 AO claims are the sole claims I have not succeeded in----yet.

In the late 1990s NVLSP found out the VA was inproperly awarding AO retro.

Since they were the lawyers who won the Beverly Nehmer decision they went right into the VAROs and kicked butt-legally.
Tousands of AO vets received more retro comp due to their efforts.

I remeber all this well but this was prior to the internet as we know it.

NVLSP had to access VARO records and had no other way to reach all vets who VA had snookered retro from.

The internet has made this easier for them to do regarding these 3 new presumptives.

Although VA said NVLSP would get their list of potential Nehmer claimants- many were never put on this list.Like me and a few others here.

The email addy is the only way to insure NVLSP will review your decision.

I know local Nehmer vet-I had to show him my tax return for my last donation to NVLSP to prove to him they are non profit.
And their letter of acknowledgement and non profit Receipt I had to give to my tax lady for my tax return.

He fully believed they would charge him $$$ if they reviewed his Nehmer decision but they are non profit pro bono.

I think the VA messed his claim up too.

One thing is for sure- although NVLSP is reviewing Nehmer decisions they are aware of- that NOD filing time will still loom over us all so the NOD should be filed even if NVLSP reviews the claim as they cannot alter the NOD one year deadline.

#6 Berta

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Posted 30 September 2011 - 07:32 AM

"It is my understanding the NVLSP would only be looking at the EED for nehmer and not the ratings given, just that A RATING was given???? Am I wrong? Will they help me with appealing the rating? Or just the Nehmer EED? "

It would not make sense to me for them to only consider the EED without looking at the ratings because it is the ratings that provide the correct retro as well as the proper EED............

I just saw that in a post in the AO forum-that seems to indicate NVLSP isnt looking at the ratings.........??????

I am quite concerned on that and will email my NVLSP contact today-

If Footnote One is causing many of the Nehmer problems ( as the recent pdf from NVLSP reveals)

Footnote one involves the % the VA gave the vet so why arent they looking at ratings?????

This is VERY concerning to me.

Maybe many Nehmer vets will have to file CUE claims on prior past ratings if NVLSP isnt helping with that.???????

I will see what NVLSP has to say on this and let all know.

#7 Berta

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Posted 30 September 2011 - 08:43 AM

Pages 32 and 33 of the NVLSP Nehmer Training Guide puts the Onus on the VA to properly rate these claims:

http://www.nvlsp.org...ainingGuide.pdf

But NVLSP makes this point there as well:

"NOTE: Nehmer decisions will be stand-alone documents as they will be reviewed without the claims folder by others as well as class counsel. Class counsel will not have the claims folder during their review, therefore, it is crucial all evidence pertinent to the presumptive condition(s) is listed and properly discussed in the decision."


This is why I sent the Nehmer contact lawyer I have- what I thought was the most pertinent evidence they needed to have.

I need to check again to see if I sent them my SMC CUE claim info.


You asked here some Very Good questions about Nehmer and us advocates are in the dark because there are no new Nehmer claims at the BVA- and we dont have privy to RO decisions.

When RDT replies to me in the AO forum, I can then contact NVLSP as it seems to me if the VA errs in a rating under the Nehmer Training Guide, NVLSP should question it- if they know it is wrong based on what evidence they had for the review- as mentioned above.

#8 Berta

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Posted 01 October 2011 - 07:34 AM

RDT confirms his email here came from NVLSP:

"Unfortunately, the Court's Orders only permit NVLSP to complain to the Nehmer
Court about certain issues, such as the effective date assigned by the VA. Issues including the accuracy of the rating percentage assigned by the VA are outside the Nehmer Court's authority, and thus beyond the scope of NVLSP's representation. However, the rating percentage can be challenged through the normal VA appeal process (filing a Notice of Disagreement, submitting a Substantive Appeal, etc.) with the assistance of your VSO" .

I feel that is not quite what the Training letter under Nehmer says at all.

The training letter states:

"Coding and Assigning a Percentage
The Cardiovascular System in the Rating Schedule was revised effective January 12, 1998. A grant of IHD prior to January 12, 1998, will require application of the Rating Schedule that was applicable on January 12, 1998. These evaluations are protected if there is no change in the condition AND the new regulation would result in a lower evaluation. However, if the new criteria provides for a higher evaluation, grant the entitlement effective the change in regulation. 38 U.S.C. § 1155; 38 C.F.R. § 3.114(a).

Special Monthly Compensation
Special monthly compensation entitlement must be considered as appropriate. Many times (S)1 (schedular housebound - single 100 percent and additional 33 etc etc "

Does anyone here see the same conflict as I do in my interpretation of the Nehmer Training Guide statements and the email RDT received?

I need to do some more research before I contact NVLSP on this because since the VA did a CRA report ( a questimate on the costs of the new 3 AOs when some Congressman griped ) how can the VA validate any follow up cost analysis if the ratings on some of these Nehmer claims are wrong? I need to find and re read the CRA report again.I posted it here at hadit last year.

Certainly wrong ratings can be appealed but Time is the enemy of Vietnam veterans as well as their surviving spouses.
The new AOs ,in my opinion, considering the average age of Vietnam veterans now, would allow them proper SC in their remaining years to rectify the damage AO did to them although compensation never can compensate for the severe disabilities that the 3 new AOs are.

Does anyone here, familiar with the Nehmer Training Guide and the CRA report ,see what I mean?

AS I understand it, the Nehmer Court Order was to "re adjudicate" these claims.Would that not encompass inclusion a VA rating under the new AO regs that is proper and thus part of the NVLSP review?

any thoughts?

Edited by Berta, 01 October 2011 - 07:40 AM.


#9 hawkfire27

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Posted 05 October 2011 - 02:13 AM

Hey Berta, thank you for replying.....

Hmmmmmmmm so nehmer won't help then.

I just remembered my husband went through voc rehab way back in 1988 after his heart attack.....because he couldn't continue his job (METS went down?)......This evidence was not considered. Should voc rehab records be in the c-file or would they be held elsewhere?I could maybe submit with new and material evidence then????

I am still trying to decided on a CUE or DRO Review...or N&M evidence..... gah!!!! this is so frustrating. in you experience what would be a better way to go.....what sort of things qualify as a CUE if nehmer won't help with ratings problems. Would an IMO help do you think???

Sorry about all the questions. :-)

#10 Berta

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Posted 05 October 2011 - 07:31 AM

I think you could ask them to CUE themselves as to the ratings and tell them why the ratings are wrong.

However- although asking them to do this might get your claim faster attention- still they could decide not to act on that so best to mark your calender for the NOD one year deadline to make sure that is filed in timely fashion.

“Does any know how I should approach this. Should I do a NOD or DRO review? We are talking about 30 years of retro SMC S (Also rated PTSD 100% from 1988) if this goes through so it is definitely worth my time, I just don't know the best way to approach this..... I currently have another claim in, should we wait for this to be decided? (Could take too long though)..... “

A DRO review could definitely possibly help straighten this all out.I sure would want you to have a very good rep who would be present at the hearing if that is possible. I think others here might agree on the DRO hearing-and hope they chime in.

I fully expect my ratings to be incorrect and although I sent them the rating info they need-I intend to ask them to CUE themselves too if they dont do it right- and also I will file NOD if they dont act on the CUE request within one year.

Has NVLSP reviewed this decision yet?

“For the initial 1988 rating of thirty percent it states. "Evidence shows you suffered a myocardial infarction in April 1988, this is evidence in a VA exam submitted in July 1988. This is the initial claim date for the purposes of Nehmer". etc. etc. Now in the rating portion it says: "While evidence of a heart condition is shown in a VA Exam done in July 1988, a myocardial infarction was ruled out. A rating of 30% is assigned due to moderate reoccurring episodes of angina pectoris, as shown in the evidence".

A MI is far different from angina- this makes no sense.

“Now in the Rating for 100% in 1993 it says " Evidence shows you we admitted for possible myocardial infarction. This was ruled out by Dr. *******. However, an angioplasty was performed at this time, and evidence of post myocardial infarction was found." and "It was found in evidence that you had a CABG x5 performed in April of 1993. This qualifies you for temporary 100% for one year and one month from the date of surgery. “

The temp 100 is right but their medical rationale here is ridiculous.

“SMC S from 1993 to 1994, and from August 2010 to “

Is this S rating due to the Temp 100%?

“I have been on SSD since my first heart attack in 1988” Did they even mention this evidence at all???

There is ,in my opinion, a lot wrong with this decision.



“We are talking about 30 years of retro SMC S (Also rated PTSD 100% from 1988 “

That is well worth fighting over.!!!!

As you know my claim is for IHD accrued as SMC. I have asked them for the SMC “M” award as “S” is unacceptable due to my husband's multiple SC disabilities.

But I also have a pending CUE claim for SMC accrued.

The VA had failed to properly rate and consider SMC when the medical evidence warranted it.

Do you have any old decisions that were denied and Not appealed that could potentially be basis for that type of CUE claim?

From what I see here- probably not-but I hope others read this over and opine here too.

I feel the VA will definitely either mess up SMC awards under the new regs or forget the dependency
factor in the retro.

It looks to me as though -in your case- they manipulated some evidence and then forgot the rest of it.

It also looks to me that,if they were aware of the SSA solely for the IHD- then why isnt the rating 100% or TDIU for the entire retro period? Pklusthe SMC S award?

I have been working on my AO claims lately because I want to know what to expect and I am developing a War Plan.(IE-my plan of attack over anything wrong in the decision) War Plans helped me succeed before with my claims.It is just a way of making sure absolutely no stone is left unturned as far as evidence goes.(medical or legal evidence as for the CUE claims)

These AO claims can become quite intricate and time consuming to deal with=even when the decisions come and that is the time to find any errors they made and act on those errors.

Has NVLSP reviewed this decision yet?

Has a vet rep reviewed it yet?

“I currently have another claim in, should we wait for this to be decided? “

I wouldn't wait on fighting this Nehmer claim.

Once the AO SMC is properly established (if they did err on the retro on that) then the other claim could perhaps put you into a higher SMC criteria.

Again -I hope others here will chime in on this.

They want to finish these Nehmer claims by Oct 31st so I expect we will be getting many more AO Nehmer questions in this forum as well as our AO forum.

Nehmer vets and widows widowers read hadit as guests and are looking for our best input on their decisions.
I think the NVLSP AO email addy is in this thread.

It would help if we can read their input if vets will post anything they get from NVLSP regarding their AO Nehmer claims as it could help many others.