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Footnote 1 Question-Parkinson's


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9 replies to this topic

#1 warren

 
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Posted 12 August 2012 - 10:22 PM

va approved me for parkinson's (80%) april 2011, but no retroactive pay. i filed a claim in 2002, i filed for agent orange exposure. then on statement in support of claim , i put these disabilities: tingling, numbness, pain, and twitching in arms, hands, legs and feet and tremoring hands. these are all classic signs of parkinson's. i didn't know to put the terminology as parkinson's, because i didn't known what was causing these symptoms. i have doctor reports from 1997 thru 2012, stating i have hand tremors and other pd symptoms but he would not diagnose me with pd because i didn't have the pill rolling tremor of the thumb and fore finger. but, i have a letter from him saying more likely than not , the early hand tremors were early stages of pd (this letter is dated in 2011). social security disabled me in 2010, because of pd. the va approved me without a c&p. in may and july of 2012, i had a c&p exam. and the va neurologist diagnosed me with parkinson's. what i was wondering, since i put on my 2002 claim that i was filing for agent orange exposure shouldn't i have been afforded a c&p exam since all my symptoms were pd, shouldn't this have been coded and the va infer this as possible parkinson's in 2002. at the time i filed this claim i was taking the medication sinimet, which is prescribed for parkinson's. on page 16 of the nehmer training guide, it says the nehmer has held that the stipulation requires va to readjudicate all cases in which va previously denied a class members claim of service connection for a new presumptive disease. a prior denial based on lack of diagnosis rather than lack of nexus falls within the scope of the stipulation's requirement for readjudication. the va turned me down for retroactive pay to 2002, because i wasn't diagnosed with pd until april 2011. unless i understand it wrong, i didn't have to have a diagnoses of pd in 2002, in order to received retroactive pay. do i fall under footnote 1, in any way. i would greatly appreciate any help in trying to get retroactive pay back to 2002.

GOD BLESS

warren

#2 SP4RVN1971

 
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Posted 12 August 2012 - 10:35 PM

Welcome Aboard, I think you have came to the right place for help! You will get some help here!!!!Posted Image

You hang in there!!

#3 Berta

 
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Posted 13 August 2012 - 08:13 AM

“va approved me for parkinson's (80%) april 2011, but no retroactive pay. i filed a claim in 2002, “

Did you file a Notice of Disagreement within the first year after this decision?

“ but, i have a letter from him saying more likely than not , the early hand tremors were early stages of pd (this letter is dated in 2011)”

Did VA have this letter as evidence prior to their April 2011 decision?

“social security disabled me in 2010, because of pd. the va approved me without a c&p. “
Did the VA refer to the SSDI date of disability in the decision?

“in may and july of 2012, i had a c&p exam. and the va neurologist diagnosed me with parkinson's. what i was wondering, since i put on my 2002 claim that i was filing for agent orange exposure shouldn't i have been afforded a c&p exam since all my symptoms were pd, shouldn't this have been coded and the va infer this as possible parkinson's in 2002. “

Parkinson's didnt go onto the AO list until October 2009:
http://www.nvlsp.org...sestoAOlist.htm

I do feel those symptoms should have been coded and a C & P given ,if you specifically filed a claim for them.

However the VA doesn't infer much at all regarding the way a claim is worded.

Do I understand VA was treating you for these symptoms with the sinemet (an obvious PD medication)yet had not diagnosed you with PD yet?

You have corrected described Footnote One of the Nehmer Court or der :


“on page 16 of the nehmer training guide, it says the nehmer has held that the stipulation requires va to readjudicate all cases in which va previously denied a class members claim of service connection for a new presumptive disease. a prior denial based on lack of diagnosis rather than lack of nexus falls within the scope of the stipulation's requirement for readjudication.”

Most all Nehmer vets and widows were Footnote One claimants, under the August 2010 AO regs.due to a past coded AO condition that was denied at that time of coding.

A few of us are “should have been coded” Nehmer Footnote One claimants.I was a “ should have been coded Nehmer widow so I am familiar with the hurdles this type of claim involves.

The link below is a brief explanation from Rick Spataro of NVLSP on Footnote and I believe the “should have “ clause that you would fall into is on page 15-16 of the Nehmer Training Guide available here at hadit.

You posted:

“unless i understand it wrong, i didn't have to have a diagnoses of pd in 2002, in order to received retroactive pay. do i fall under footnote 1, in any way. i would greatly appreciate any help in trying to get retroactive pay back to 2002.”

The Nehmer training guide stipulates that a disability must be construed by VA as falling under Nehmer.
Meaning if a past rating sheet states CAD , that must be construed to be IHD,unless there is medical evidence that does not indicate this was ischemia of heart.

How did you word your AO claim as to the now diagnosed PD disability -was it worded in a way that could be construed to be Parkinson's?


“va approved me for parkinson's (80%) april 2011, but no retroactive pay.”

Can you scan and attach the decision here (Cover all personal identifying stuff)

I am baffled by the fact that SSDI approved you for Parkinson's yet VA did not use the date of the SSDI award to at least determine one additional; year of retro for you. I explained how that reg works here and need to find a link for you.

I am assuming VA had the SSDI records because you said the VA approved you without a C & P

But you said:

“in may and july of 2012, i had a c&p exam. and the va neurologist diagnosed me with parkinson's. “

??? Did you in fact NOD the 2011 decision and was this C & P a result of the NOD???

One more question:
well two more

Have you formally applied for TDIU?
I would like to see in the decision what the VA said about TDIU-maybe that was what the C & P was for?

“since i put on my 2002 claim”

Was the 2011 decision a result of that claim and it had been in appellate process since 2002 or was this re-opened claim at some point?


Explanation of Footnote One and much more discussions under a search for Footnote One
http://www.hadit.com...opic/49107-ihd/

As I mentioned I am a Footnote One “should have been coded “ claimant.

I had a CUE claim pending since 2004 on my husband's fatal (and VA induced) IHD.(FTCA/1151)

The VA
"should have coded "his IHD or 6 years prior to his death and didnt. In January the did code it under the CUE and awarded for AO IHD.

However, the medical records and significant legal; info warranted the 'should have' scenario.

In your case ,it seems to depend on the way you worded the initial claim, to see if the claim could have been construed as a PD claim and 'should' have been coded.

I sure hope you are still within the appeal period for filing a NOD or that you did in fact file a NOD already

What was the actual date of the award letter?

If you can scan and attach the decision as to their Reasons and Basis from the 2011 award, can you make sure the Evidence list is listed on the scan?

Agent Orange is the most important veteran's issue I ever dealt with, long before I even had a dog in the fight.Although my husband and then I , as his widow, were in the original AO Settlement Fund, he never knew,in his lifetime, the considerable damage AO had done to him.It still angers me that not only did the VA cause his death, AO was what caused the disabilities that they malpracticed on. It was truly a weapon of mass destruction.

I am assuming here that your claim was not adjudicated by a Nehmer VARO and that you didnt receive a formal Nehmer letter . Is that incorrect?

Edited by Berta, 13 August 2012 - 08:17 AM.


#4 warren

 
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Posted 13 August 2012 - 08:46 PM

BERTA, I'M TRULY SORRY YOU LOST YOUR HUSBAND. I'M 64 YEARS OLD AND I'VE LOST SEVERAL FRIENDS DUE TO THIS AGENT ORANGE DEMON. BERTA I'M GLAD YOU RESPONDED TO MY QUESTION. I'VE BEEN READING THIS SITE FOR SEVERAL MONTHS AND YOU SEEM TO BE VERY KNOWLEGIBLE ABOUT NEHMER. I'M NOW A MEMBER OF THIS WONDERFUL SITE.

I FORGOT TO MENTION THAT I RECEIVED 10% FOR IHD, RETROACTIVE TO SEP 11, 2002, I HAVE NEVER RECEIVED A LETTER FROM THE VA, DIDN'T SEND ME A FORMAL NEHMER LETTER. THE IHD RETROACTIVE REALLY SURPRISED ME!

I DON'T KNOW IF I FILED A NOD ON MY 2002 CLAIM. AS FOR MY CLAIM FILED THRU FAST TRAC ON NOV. 15,2010 , AND AWARDED 30% FOR PD, EFFECTIVE MAY 11, 2011, WAS A PRELIMINARY FINDING OF ENTITLEMENT ON MY PD CLAIM. THEN I WAS AWARDED ON FEB 1, 2012, 160% FOR UPPER, LOWER EXTREMITIES ETC. WITH AN EFFECTIVE DATE OF APR. 15,2011.THEN ON MAR 8, 2012, I REQUESTED A TOTAL DISABILITY RATING FOR PD. THEN ON MAY 17, 2012, I SUBMITTED ADDITIONAL EVIDENCE SHOWING THAT I'M WARRANTED RETROACTIVE PAY UNDER THE NEHMER REGULATIONS WITH AN EFFECTIVE DATE OF SEP 11, 2002. THIS IS WHEN I SENT THE LETTER FROM MY DOCTOR THAT SAID MORE LIKELY THAN NOT. IS THIS A NOD? I RECEIVED A LETTER FROM DAV DATED AUG. 6, 2012, SAYING THE VA GRANTED ME INDIVIDUAL UNEMPLOYABILITY EFFECTIVE AUG. 1, 2011. BUT THEY DENIED ME ENTITLEMENT TO AN EARLIER EFFECTIVE DATE FOR SERVICE CONNECTION FOR PARKINSON'S DISEASE. I HAVEN'T RECEIVED ANY THING OFFICIAL FROM VA YET.

THE VA MENTIONED SSDI AS EVIDENCE BUT DIDN'T MENTION THE DATE. SSDI LETTER SAYS I'M ENTITLED TO MONTHLY DISABILITY BENEFITS BEGINNING NOV. 2010. THE VA APPROVED ME FOR NEUROLOGICAL DISABILITIES AND PANIC ATTACKS.

I DID SPECIFICALLY FILED A CLAIM FOR THE SYMPTOMS I MENTIONED.

MY PERSONAL DOCTOR WAS TREATING ME WITH SINEMET BEFORE I ENTERED THE VA HEALTH SYSTEM. I GUESS THE VA CLINIC DOCTOR DECIDED I DIDN'T NEED IT. I HAVE THE DOCTOR'S REPORTS WHERE HE PRESCRIBED SINEMET FOR MY HAND TREMORS.

I FILED ON FAST TRACT AND SENT THEM A BUNCH OF MEDICAL RECORDS AND MY DOCTOR FILLED OUT THE PARKINSON'S QUESTANIER. THAT'S HOW MY AO CLAIM WAS WORDED, IF I UNDERSTAND YOUR QUESTION.

I CAN'T SCAN THE DECISION BUT I CAN MAIL YOU A COPY.

VA HAD THE SSDI RECORDS.

I DON'T KNOW WHY THE C&P EXAM WAS SCHDULED.

THE 2011 DECISION WASN'T A RESULT OF THE 2002 CLAIM. IT WAS A NEW CLAIM FOR PARKINSON'S.

BERTA, I TRULY DON'T REMEMBER RECEIVING ANYTHING FROM MY 2002 CLAIM. A LETTER TURNING ME DOWN, NOTHING.
BUT I HAVE A COPY OF MY CLAIM AND I SENT IT TO VA THIS YEAR ALONG WITH WHAT MY SYMPTOMS WERE AND THEY TURN ME DOWN FOR RETROACTIVE PAY.

BERTA, IF YOU WILL GIVE ME YOUR ADDRESS I'LL MAIL YOU WHAT YOU NEED. I'M GETTING CONFUSED AND THE PD HAS DRAINED ME FOR NOW. BERTA IF YOU CAN HELP ME I'LL DANCE AT YOUR NEXT BIRTHDAY PARTY CANES AND ALL. I'VE HAD PD FOR A NUMBER OF YEARS AND I KEEP GETTING WEAKER. I'M AFRAID A WHEEL CHAIR IS NEXT. BERTA YOU TAKE CARE AND MAY GOD BLESS YOU AND YOURS. I KNOW I PROBABLY HAVE LEFT SOMETHING OUT. I BELIEVE THEIR IS SOMEWAY I CAN GET THIS RETROACTIVE.




WARREN





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#5 Berta

 
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Posted 14 August 2012 - 07:23 AM

This is a lot more info to your original post but I saw this AM that they award you TDIU which is great.

The actual VA award letter will tell you more and if you can tell us here exactly how ,in their own words, how the VA determined the retro dates in the award letter, when it arrives , we might be able to advise you more.

It would be a good idea for you to get a copy of your C file too. .

I would think the DAV would also be checking the EED,and will go over the entire decision.particularly since they awarded for IHD and you didn't expect that.

#6 broncovet

 
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Posted 14 August 2012 - 08:30 AM

Warren:
I assume you sent a formal claim in 2002, a 21-526. You need only send in ONE Formal claim. It is unnecessary to send in multiple formal claims for IHD, Parkinsons, etc. However, to meet the criteria that you "have filed a claim in 2002" your 2002 informal claim needs each of these 3 elements:
1. It has to be in writing. It is not enough to tell your VSO or your doc you want benefits for Parkinsons, he or she has to write it down and send it to the VA.
2. You have to demonstrate an "intent" to seek benefits for one or more conditions. It is not enough to go to the doc. The VA assumes if you go to the doc, you are seeking TREATMENT, not benefits. You have to demonstrate an intent to apply for benefits for the malady.
3. You have to "specify the benefit sought". This is the most complex, imho. You see, the Veteran can "describe symptoms"...he need not self diagnose a complicated disease and name it to get benefits for it. For example, you could seek benefits for "back problems", and the doc may diagnose you with a C-3 to C-4 ruptured disk. You are not expected to take and interpret your own x rays and determine you have a ruptured c3 disk before seeking benefits. You tell your VSO you are seeking benefits for "back problems" because you jumped out of airplanes, and that it hurts your knees, too. You do have to make sure your VSO writes that down and sends it to the VA.
Case law says that you have to have continuity of symptoms, not treatment. This is an important distinction.

#7 warren

 
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Posted 20 August 2012 - 10:30 PM

BERTA, THE VA'S ACTUAL WORDS IN MY AWARD'S LETTER CONCERNING THE THREE NEW PRESUMPTIVE'S: THIS CHANGE BECAME EFFECTIVE AUGUST 31,2010. THEREFORE, BECAUSE YOUR CLAIM FOR PARKINSON'S DISEASE DUE TO EXPOSURE TO HERBICIDES/DIOXIN WAS RECEIVED AFTER THE DATE THE LAW CHANGED, THE EARLIEST EFFECTIVE DATE THAT CAN BE ASSIGNED IS AUGUST 31, 2010, OR THE DATE ENTITLEMENT AROSE, WHICHEVER IS LATER.

RETROACTIVE BENEFITS ARE NOT WARRANTED AS A REVIEW OF YOUR CLAIMS FILE FAILED TO SHOW ANY EVIDENCE OF RECORD RECEIVED IN SUPPORT OF PREVIOUS CLAIMS WHICH WOULD INDICATE DIAGNOSIS OR TREATMENT PARKINSON'S DISEASE SUBJECT TO THE NEHMER REGULATIONS. IS THIS WHAT YOU WANTED?

THANKS BERTA, GOD BLESS

WARREN

#8 warren

 
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Posted 20 August 2012 - 11:05 PM

BRONCOVET, THANKS FOR YOUR INFO. I DID SEND A FORMAL CLAIM IN, IN 2002, A 21-526. THE CLAIM WAS IN WRITING AND I FILED FORM 21-4138, ( STATEMENT IN SUPPORT OF CLAIM) WITH DISABILITIES THAT ARE PARKINSON'S CLASSIC SYMPTOMS, IS THIS AN INTENT TO APPLY FOR BENEFITS? I HAVE DOCTOR REPORTS FROM 1997 THRU 2012 THAT I HAVE CONTINUOUSLY HAD ABNORMAL NEUROLOGICAL CONDITION. ON SPECIFING THE BENEFITS SOUGHT, I PUT HANDS TREMORING, TWITCHING IN EXTREMITIES ETC. I ASKED MY DOCTOR IF I HAD PARKINSON'S AND HE SAID I DIDN'T HAVE THE PILL ROLLING TREMOR OF THE THUMB AND FOREFINGER, FOR HIM TO DIAGNOSE ME WITH PARKINSON'S DISEASE. EVIDENTLY, HE WAS NOT UP TO DATE ON PARKINSON'S SIGNS. IN MY RESEARCH OF PARKINSON'S, I FOUND OUT YOU DON'T HAVE TO HAVE THE PILL ROLLING TREMOR OR EVEN HAVE HAND TREMORS TO HAVE PARKINSON'S.

GOD BLESS

WARREN

#9 broncovet

 
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Posted 21 August 2012 - 09:24 AM

Warren...
Im no law dog, but Roberson requires the Va "give a sympathetic reading" to Veterans filings, so, I would say, yes, that is likely an informal claim. However, the VA tends to lose or shred these documents, then claims you did not apply in writing,or that you were merely seeking "treatment" at the doc, and not benefits. We expect the VA to fight tooth and nail to deny our benefits, and that is usually what happens.
If you have a copy of your c file, especially one with this "informal claim" on a 21-4138 included, you should prevail on appeal, after the VA tries to "weasel out" of paying you. You may get out of a lot of "weaseling" by keeping copies of records you sent that the VA shredded or stashed in another Vets claim's folder.
There is a picture that the VAOIG took of one of the RO claims processing centers, here:
http://asknod.wordpr...ellnot-exactly/ ....scroll down to the picture.

#10 warren

 
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Posted 21 August 2012 - 12:35 PM

BRONCOVET, I HAVE A COPY OF FORM 21-4138, SHOULD I SEND THIS TO THE VA OFFICE AND ASKED THEM TO RECONSIDER OR FILE AN APPEAL TO THE NEXT LEVEL.

GOD BLESS

WARREN