How Long Will It Take?

Hey Jim,
 
I can't find any info online about how the VA is dealing with Niemeyer backlog.  Would like to hear your take - is it taking two years on average?
 
Sept 2010 - filed via California State rep. to Oakland R.O. in for presumptive compensation.  Submitted all my 2005-06 bypass and mitral valve repair then replacement hospital records and Kaiser cardiologist's 21-0990A - ejection fraction was 60% in 2006; he rated METS at 7 on the form. Nov 2010 - got a VCAA letter in advising that the claim would be handled by the Fast Track System and to go online to register for it.  I registered but figured nothing else was required.  Wasn't sure about the Date of First Diagnosis they asked for.  Knew my Australian 2000 something Echo was in my VA file, since my doctor there had sent the whole thing to VA in 2003.
 
Dec 2010 -  C & P by VA cardiologist . He rated me at 3-5 METS, functional class II.  Echo showed LV ejection fraction 41-49 Jan 2011. March - every 2-3 months, I check in with my Rep.  According to him, the R.O. was sitting on the file in Oakland or a Niemeyer satellite in Sacramento, still waiting for more info.  Via the rep, sent another hard-copy VCAA response to decide claim quickly.
 
April - new VCAA reply requested online, so I scanned all the docs already submitted to the R.O., uploaded them and authorization for the hospital and cardiologist to re-submit their records. August the Rep said that my file had come back from Maryland and would probably be processed by March 2012 at the latest.  He stated that he saw my file, but that it was still on a big table stack.
 
November - F.T. online site had new medical evidence listed but still in the Development Phase and still asking for date of first diagnosis.  "Jeez", I thought."I'll get the echo via FOI appt." December - at FOI appt, obtained a copy of Sep 2000 Australian echo.  Scanned and uploaded it.  Did another VCAA response for quick decision online as well. January - rep says my VA file not showing on his computer and is probably back in transit to the Sacramento processing unit.  He goes up there maybe once a month, reports that they get dumped into locked barrels until someone can process.
 
My heart sank.  Did I lose my place in the queue?  Rep said "maybe not."  Niemeyers are supposed to be processed first.  Otherwise, it might be the end of 2012. What is the most likely?
 
Thanks for all your help.
 
Roger

Hey Roger,

I'm glad you asked that. You just haven't looked in the right place on the Internet.

Once you read through this page...there's a lot there to read...get back with me if you have any questions.

The bottom line is this: The adjudication of the Nehmer Class of claims should have been completed a year ago. Once they started, it became apparent that this was one of the biggest projects VA has ever taken on. I predicted that they would complete the task by the end of 2011.

I was wrong. The claims have proven to be so complex that VA had to train thousands of employees to handle them. Then there were a lot more claims than had been thought at first. VA stumbled a couple of times as that got started and had to back up and do it all over again.

There is some good news. The project is winding down. Claims like yours are being processed, slowly but surely. There are a few thousand left to do but the VA is plugging away at it. The best news is that from the start VA made it clear that every claim would be done precisely and correctly. There was a sort of zero tolerance in effect for errors that would lead to lengthy appeals. I've been impressed with the claims I've reviewed. VA has paid out some huge sums of money to deserving veterans and they've done it with remarkable accuracy. I don't know of many (or any) well grounded appeals.

Best regards,

Jim

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38 C.F.R. § 3.816   Title 38 - Pensions, Bonuses, and Veterans' Relief Awards under the Nehmer Court Orders for disability or death caused by a condition presumptively associated with herbicide exposure.



284 F. 3d 1158 - Nehmer v. Veterans' Administration of Government of United States

NehmerTrainingGuide

Jim, How long will it take?

Hi Jim;

I thought I would write to get some honest input from someone who knows what is going on. In November of 2010, I received a call from my Newark VARO, stating my case was a Nehmer case connected with IHD. He was sending my claim up to Togus for further review. In March I received a call from the Togus VARO (that's four 4 months later) stating he had my claim file and was there anything else I wanted to add?

I told him no. He stated because everything was in order they will bypass the 30 day waiting period and I said thank you. In the middle of March I received two letters from Togus indicating my claim was a Nehmer claim. On 6/13/11, I received a call from a Togus representative stating he was sending my claim folder up to be rated, and it should take another 60 days, as always I said thank you.

On 7/19/2011 it will be 22 years since VA denied my claim for Agent Orange related IHD.  They did tell me they went back 21 years. My lawyer tells me I have to wait like everyone else.

How much longer do you think this will take?  Thank you.

Reply;

I get this question a number of times every day. The answer is always the same. The time it will take to process your Nehmer class claim is not predictable other than in broad terms.

I'm fortunate to know some of the people who are involved in how the Nehmer class claims process is working. I've been privileged to know some of these folks for years. I'm confident that these are the best of the best and that they are tackling the humongous task of adjudicating Nehmer class claims just as all claims should be done. They're doing it right the first time.

Secretary Shinseki made it clear that the Vietnam veterans in the Nehmer class, as well as Vietnam veterans who are affected by the 3 new presumptive conditions, are a priority. In so many words, he's told his staff that these veterans were done a great disservice in the past and that their time has come. He has said that the Vietnam vet knew there was a problem decades before our government accepted the reality of it. It appears he was talking about you.

While he can't personally fix all the disrespect and errors committed against Vietnam veterans, he's doing what he's able to. General Shinseki is a Vietnam veteran himself. He was severely wounded during the war.
 
He knows the pain of every combat vet. He demonstrated his commitment to all veterans, particularly Vietnam veterans, by standing up to Congressional harassment as he pushed through the 3 new Agent Orange related conditions.

I was surprised to learn of an article in the New York Times by James Dao that announced that Secretary Shinseki would name Ischemic Heart Disease as an Agent Orange presumptive condition. I raised up and loudly argued that such a thing couldn't happen because of the expense of it all. Heart disease is the most common cause of death in America and it's the most expensive to treat. Adding hundreds of thousands of sick veterans to the system was not going to be possible...or so I thought.

I was wrong. I've never been happier to learn just how wrong I was. I'd even pointed a finger at Dao and told him he shouldn't make such predictions and raise the expectations of veterans when such a thing just wasn't going to happen. Jim Dao is a good natured sort though and he let me rant with no hard feelings.

The Nehmer claims have proven to be an extraordinary burden that nobody predicted. Many of the claims, like yours, are very old. Your folder and the paper it's written on is fragile and hard to read. Doctors used hand written notes in those days, full of arcane abbreviations that don't make much sense in today's world of VistA records.

Only well trained and supervised VA staff are allowed to work on Nehmer claims. Months ago I discovered a claim that had been wrongly adjudicated. The veteran brought the claim to my attention and I contacted a friend who is part of the management team for the project. Not much time passed before the claim in question was corrected. Then I learned that because of the error I reported, all other previously adjudicated claims were pulled back for review!

Secretary Shinseki mandated overtime for this effort! That surprised and delighted me. During my career in health care, overtime was so routine that we thought a 60 hour work week was a sort of vacation. Most government agencies don't have that in their culture and overtime pay is rarely authorized. At VBA it wasn't a choice any longer...the boss demanded it.

I've had no other complaints about any flawed decisions involving a Nehmer class claim. It appears that every award has been done right. In my little corner of the veterans world, that is simply amazing.

So...when is your claim going to be decided?

Some original predictions were that the majority of Nehmer class claims would be decided by August 2011. I looked at the bumps in the road that VBA faced and I predicted October 2011 as a reasonable expectation for 95% plus to be completed. Today, I predict that this monumental task will now take until the first part of 2012. Cases like yours may be on the tail end of it. The older the claim, the harder it is to sort it all out.

Follow the advice of your attorney. Be patient. Always remember that the reason your claim wasn't decided today is that another Vietnam vet's claim was decided. He was in the line ahead of you and your turn is coming.

While you wait, send a salute towards the VA Central Office. For all the problems we have with our VA, this Secretary stood up for you...for all of us...like no other has. He couldn't be intimidated by a Congress who wanted to stop him. To see the 3 new presumptives approved required courage and commitment...he's passed the acid test and he deserves your respect.