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Review of Awards
for Diseases Associated
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for Possible
Retroactive
Benefits Under Nehmer Order.
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SUBJ:
Review of Awards for Diseases Associated with Herbicide Exposure for Possible
Retroactive Benefits Under Nehmer Order.
All veterans that have ever filed a claim under agent orange should print
this out... and make sure their VSO has a copy... copy of VA letter sent out
to their Regional Offices.can also cut and past the whole thing into a word
processor document... about 8 pages.... they way the format came thru... makes
it hard to read...
********
December 3, 2002
Director (00/21) In Reply Refer
To: 211AVA Regional Offices and Centers
Fast Letter 00-33
SUBJ: Review of Awards for Diseases Associated with Herbicide Exposure for
Possible Retroactive
Benefits Under Nehmer Order.
BACKGROUND INFORMATION In August,
we sent the enclosed notice to approximately
1,700additionaldiabetes claimants identified
by the Special Issue Rating System(SIRS).
The notice states that VA must re-adjudicate
certain previously denied claims under Nehmer v. United States Department of
Veterans Affairs,CV-86-6160(TEH) (N.D. Cal).
The notice also advised these claimants of
their rights and responsibilities with
respect to these re-adjudications.
A copy of the letter was sent each regional
office for file purposes. We will be
sending a list of these cases to
each regional office, in an MS Excel
spreadsheet format via e-mail.
WHAT SHOULD YOU DO?
We request that your office review
the claims folder(s)for possible
entitlement to an earlier effective
date for service connection
of a presumptive herbicide condition
under the Nehmer order. We will provide
you with a list of these cases within
the next few weeks.
If a file that is on the list no longer
resides at your regional office, please
notify Ersie Farber-Collins of the
Compensation and Pension Service
by e-mail immediately.; If a file
that is on the list is currently located
at a retirement center, please
immediately recall the folder for Nehmer
review.; Cases on the list that remain
in your office must be placed under
end product control within 5 workdays from the date you receive the list.
Please refer to all station letter 02-03 for end product control purposes only.;
If
any circumstances of the case (e.g.,
need for further development) will
prevent you from meeting the deadline
shown below, please let us know as soon
as possible.
If you conclude that the claimant
is entitled to an earlier effective
date, prepare the required rating
decision and notify the claimant of
the decision. If you are unable
to locate a claimant or, the address
is unknown, etc, please include a
statement in the rating to that
effect.; In cases where an award
is reviewed under this Fast
Letter and you determine there is
no entitlement to an earlier effective
date, send the claimant a notice
containing the following language:
Pursuant to a court order in the case
of Nehmer v. U.S. Veterans' Admin.,
C.A. No. C-86-6160 (TEH) (N.D. Cal.),
we have reviewed your award of service
connection for Type 2 diabetes to
determine whether you may be
eligible for an earlier effective date
for benefits. Under Nehmer an earlier
effective date may be granted if a prior
claim for service connection for
Type 2diabetes was filed or denied
between September 25, 1985 and July 9,
2001.
We have concluded that you are not eligible for an earlier effective
date because you did not have a prior claim filed or denied during this
period. You do not need to do a rating decision in these cases. Continue to
follow the procedures in Fast Letter 01-94 for annotating the most recent
diabetes
rating decision.
This notice requirement applies only to Type
2diabetes cases reviewed pursuant to this letter.
DEADLINE FOR RE-ADJUDICATION This review
is required by order of the Nehmer court
and must be completed by February 15, 2003.
You should therefore continue to make there-adjudication of these cases a
high priority. To ensure we meet the
deadline, we will require each RO to
complete the last three columns
(pending transfer from retirement
center, pending development action,
rating decision/decision notice)
on the spreadsheet on a monthly basis
and send it to Ersie Farber-Collins
by e-mail according to the below
schedule:; On or before December 31,
2002.; On or before January 31, 2003.
; On or before February 15, 2003,
all of the cases must be completed.
Also enclosed is a memorandum prepared
by the Office of General Counsel
explaining the Nehmer standards and
providing guidance for this review.
Questions concerning these cases may be
referred to David McLenachenof the
Office of General Counsel. Mr.McLenachen
may be reached through VA's global
e-mail directory. /S/Ronald
J. Henke, Director Compensation and
Pension Service
Enclosures
Enclosure I: Review of Awards for Diseases Associated with Herbicide
Exposure for Possible Retroactive Benefits Under Nehmer Order
1. Purpose: The purpose of this memorandum is to provide guidance for
review of claims for a possible earlier effective date under the court
orders in the case of Nehmer v. United States Veterans'
Administration,CV-86-6160 (TEH) (N.D. Cal). In Attachment I to Fast Letter
01-94 we provided such guidance for purposes of type II diabetes claims. In
a memorandum sent to all regional offices on July 17, 2001, we provided such
guidance for purposes of prostate-cancer claims. The standards stated in
those memoranda also apply generally to all awards of compensation or DIC
for any disease presumptively associated with herbicide exposure under 38
C.F.R. § 3.309(e).
This memorandum largely restates the prior guidance in a manner intended
to
make clear its application to all diseases covered by section3.309(e).
2. History of Nehmer Case: As the purpose of this memorandum is to provide
guidance for review of claims affected by the December 12, 2000,order, we
will not recite the lengthy history of the Nehmer case. Additional
information concerning this case may be found in the district court's
reported decisions at 712 F. Supp. 1404 (N.D. Cal. 1989) and 32 F.Supp. 2d
1175 (N.D. Cal. 1999); the district court's unreported December 12, 2000,
order; the May 1991 Final Stipulation & Order of the parties to the Nehmer
case; and Fast Letter 99-86. These materials were attached to the letter
on prostate cancer cases, which was sent to all VA Regional Offices by the
C&P Service on July 17, 2001.
3. Background: Pursuant to court orders in the Nehmer case, certain cases
must be reviewed for possible assignment of earlier effective dates for
certain awards of service-connected disability compensation and dependency
and indemnity compensation (DIC) based on the presumption of service
connection for certain diseases in Vietnam veterans under 38 C.F.R.
§§3.307(a)(6) and 3.309(e). The attorneys for the Nehmer class
periodically
provide VA with lists of cases in which they believe an earlier effective
date is warranted under Nehmer. Upon receipt of any such list, we will
notify the offices having jurisdiction of the claims folder of the need
for
such review and of the court-imposed deadline for completing the review.
To assist in the prompt processing of these claims under Nehmer, we
provide the following guidance with respect to the legal standards governing
these claims.
4. General Effective-Date Rules for Presumptive Herbicide Diseases:
Pursuant to the Nehmer court orders, the following rules govern the
effective date of service connection for diseases presumptively associated
with herbicide exposure under 38 C.F.R. § 3.309(e):
A. If a Nehmer class member's claim for compensation or DIC based on a
presumptive herbicide condition was denied on the basis that service
connection was not established, between September 25, 1985 and the
effective date of the regulation establishing presumptive service connection
for the disease (see Attachment II), and a later claim for the same benefit
was granted after the effective date of such regulation, the effective date
of benefits is the date of the earlier claim, or the date the disability
arose or death occurred, whichever is later.
B. B. In all other cases, the effective date of benefits is the date on
which VA received the claim that resulted in the grant of compensation or
DIC, or the date disability or death occurred, whichever is later. This
rule applies even if the claim was received before the effective date of
the regulation establishing presumptive service connection for the disease.
In identifying the date of the claim, VA is not bound by prior
determinations as to the date of claim, but may consider whether documents
in the record establish that a valid formal or informal claim was filed at a
date earlier than VA has previously recognized. In cases under either (A) or
(B), above, the rules in 38 U.S.C. § 5110(b)(1) and (d)(1) will apply to
permit an effective date corresponding to date of discharge or date of
death, if supported by the facts of the case. It is important to note that
the rule in 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114 that an award
based
on a liberalizing law may not be effective earlier than the effective date
of the new law does not apply to these Nehmer cases. The district court's
order precludes VA from applying that general rule.
5. Claim Need Not Reference Herbicide Exposure: In its February 11, 1999,
order in Nehmer, the district court held that a Nehmer class member's
compensation or DIC claim need only have requested service connection for
the condition in question in order to qualify as a Nehmer claim. It is not
necessary that the claim have asserted that the condition was caused by
herbicide exposure. Example: A veteran who served in the Republic of Vietnam
during the Vietnam era filed a claim in 1989, expressly alleging that his
lung cancer began while on active duty following his service in Vietnam. VA
denied the claim in 1990. The veteran reopened the claim in 1997, and
service connection was granted based on VA's herbicide regulations.
On
these facts, the effective date must relate back to the 1989 claim, even
though the veteran alleged a different basis for service connection.
6. Prior Claim Must Have Involved The Same Disease for Which Presumptive
Service Connection Was Later Established: To support a retroactive
effective date under Nehmer, the prior claim must have been for the same
disability that was the basis for the later award of benefits. Thus, if a
prior claim did not involve service connection for the same condition, it
generally would not provide a basis for an earlier effective date under
Nehmer. However, the usual liberal rules of claim construction will apply,
and a lack of specificity in the initial application may be clarified by
later submissions. Example 1: In January 1987, a veteran claimed
compensation for hyperglycemia. In developing that claim, VA obtained
medical records indicating that the veteran was diagnosed with Type 2
diabetes in February 1987. On these facts, it would be reasonable to treat
the January 1987 claim as a claim for service connection of Type 2
diabetes. Under Nehmer, benefits may be paid retroactive to the later of
the date of that claim or the date the disability arose, as determined by
the facts of the case. Example 2: In 1995, a veteran claimed compensation
for hyperglycemia. Medical records obtained by VA indicate the veteran did
not have Type 2diabetes. In 2001, the veteran claimed compensation for Type
2diabetes, submitting evidence that Type 2 diabetes was diagnosed in 1996.
On these facts, the 1995 claim was not a claim for service connection of
Type 2diabetes, as neither the application nor the evidence of record
suggested the presence of Type 2 diabetes.
Because DIC claimants generally are not required to identify specific
diseases in their applications, the absence of reference to a specific
presumptive herbicide condition in a prior DIC application will not
preclude assignment of a retroactive effective date under Nehmer, provided
the evidence establishes that a presumptive herbicide condition caused the
veteran's death.
7. Informal Claims: Generally, under 38 U.S.C. § 5101(a), "[a]specific
claim
in the form prescribed by the Secretary . . . must be filed" in order
for
any benefits to be paid. However, in determining whether, and on what date,
a prior claim for service connection of a presumptive herbicide condition
was received, either formal claims or acceptable informal claims may be
recognized. It is necessary to consider whether there are documents in the
record that may be accepted as an informal claim for such benefits, under
the standards ordinarily applied with respect to informal claims.
See 38 C.F.R. § 3.155. The following principles should be considered:
(A) Informal Claims to Reopen: If a prior formal claim for compensation
for
a presumptive herbicide condition or for DIC is of record, an informal
claim to reopen may be accepted. See 38 C.F.R. § 3.155(c).Example: A veteran
filed a formal claim for service connection of Type 2diabetes in 1979. VA
denied the claim in 1980. In 1986, the veteran submitted a letter stating
"please consider service connection for Type 2diabetes." On
these facts,
the 1986 letter is an acceptable informal claim to reopen, and benefits may
be paid retroactive to 1986 under Nehmer.
(B) VA Failure to Forward Application Form: Upon receipt of an informal
claim for benefits, if a formal claim is not already of record, VA is
required to forward the claimant an application form for completion. See
38 C.F.R. § 3.155(a). The United States Court of Appeals for Veterans Claims
(CAVC) has held that, if VA receives an informal claim, but fails to
forward an application form to the claimant, the one-year period for
completing and returning the application does not begin to run. Lalonde v.
West, 12 Vet. App. 377, 381 (1999). In these circumstances, benefits may be
paid retroactive to the date of the informal claim, due to VA's failure to
provide an application form.
Example: In 1994, a veteran filed a claim for non-service-connected
pension. After VA denied the claim, the veteran in 1995 filed a statement
saying, "I disagree with your decision denying pension. I also
should be
paid compensation for Hodgkin's disease." VA did not forward the claimant
an
application form and did not adjudicate any claim for service connection
of Hodgkin's disease. On these facts, the 1995 statement may be accepted as
an informal claim for Hodgkin's disease. The veteran's failure to file a
formal claim for compensation within one year is excused due to VA's failure
to provide the application form.
© Medical Records: The submission of medical records reflecting treatment
for a presumptive herbicide condition generally does not, in itself,
constitute an informal claim for service connection of that condition. See
Brannon v. West, 12 Vet. App. 32, 35 (1998). However, attention must be
paid to the circumstances of each case to determine whether the claimant's
written submissions, viewed in connection with submitted medical records,
may establish an informal claim.
8. Death Pension Claims Must Be Treated as DIC Claims: Under 38 U.S.C.§
5101(b)(1), "a claim by a surviving spouse or child for death pension
shall
be considered to be a claim for death compensation (or dependency and
indemnity compensation) and accrued benefits." See also 38 C.F.R.
§3.152(b)(1). This rule applies even if the claimant's application
expressly indicates that the claimant sought pension only and did not allege
that the cause of death was service connected. The CAVC has stated that
section5101(b)(1) "does not . . . permit the Secretary to delve into the
intent of the claimant; nor does it allow a claimant to make an
election.
As a matter of law, a claim for DIC shall be considered as a claim
for
pension and a claim for a pension shall be considered a claim for DIC."
Isenhart v.Derwinski, 3 Vet. App. 177, 179 (1992).Example: A veteran died of
Lung Cancer. In 1988, the surviving spouse filed a VA Form 21-534
(application for DIC/death pension), and marked "no"in response to the
question "are you claiming that the cause of death was due to
service?"
Accordingly, VA adjudicated a claim for pension only. In 1997,the
surviving
spouse applied for DIC, which was granted. Under these circumstances, the
award may be made retroactive to the 1988 application, because it must be
treated as a DIC claim.
9. Live Pension Claims May Be Treated as Compensation Claims: Under 38C.F.R.
§ 3.151(a), "a claim by a veteran for pension may be considered to
be a
claim for compensation." VA is not required by law to treat a veteran's
claim for pension as a claim for compensation, see Stewart v. Brown,10
Vet.
App. 15, 18 (1997), but may do so in appropriate circumstances.
Adjudicators should exercise judgment as to whether the circumstances of a
case warrant treating a pension claim as a claim for compensation for a
presumptive herbicide condition.
10. Claim for Service-Connected Burial Benefits Must Be Treated as
Informal
DIC Claim in Certain Circumstances: A claim for burial benefits does not
constitute a formal claim for DIC. However, in Mitscher v. West, 13Vet.App.
123, 128 (1999), the CAVC held that a claim for service-connected burial
benefits must be treated as an informal claim for DIC in certain
circumstances, for purposes of entitlement to retroactive benefits under
Nehmer. That case indicates that if a claim for burial benefits
(VAForm21-530) indicates that the surviving spouse alleges that the cause of
death was due to service, VA must forward the claimant an application for
DIC (VAForm 21-534) in accordance with 38 C.F.R. § 3.155(a). If the
completed Form21-534 is received within one year, benefits may be paid
from
the date of the claim for service-connected burial benefits. The Mitscher
decision implies that if VA failed to forward the application form to the
claimant, the one-year period would not begin to run, and benefits may be
paid from the date of the claim for service-connected burial benefits. If VA
properly forwarded the application form and the claimant failed to return it
within one year, then the claim for burial benefits should not be considered
a claim for DIC. Example 1: In 1995, a surviving spouse filed an application
for burial benefits (VA Form 21-530) and marked "yes" in response to
the
question "are you claiming that the cause of death was due to
service?" VA
forwarded the claimant an application for DIC (VA Form 21-534). The claimant
returned the completed DIC application within one year. On these facts,
the
date of the1995 application for burial benefits may be accepted as the date
of the DIC claim for purposes of Nehmer. Example 2: Same facts as Example
1, except that the claimant failed to return the completed DIC application.
On these facts, the 1995 application for burial benefits should not be
considered a claim for DIC. Example 3: In 1995, a surviving spouse filed an
application for burial benefits (VA Form 21-530) and marked "yes" in
response to the question "are you claiming that the cause of death
was due
to service?" VA did not forward an application for DIC. On these
facts, DIC
may be paid retroactive to the1995 application for burial benefits, if
otherwise in order. The one-year period for filing a completed DIC
application did not begin to run due to VA's failure to provide the
application form.
11. Prior Claim Denied for Reasons Other Than Lack of Service Connection:
If a prior claim for compensation or DIC for disability or death due to a
presumptive herbicide condition was denied for some reason other than a
lack of service connection, there may be no basis for awarding an earlier
effective date under Nehmer based on the prior claim. For example, if the
prior claim was denied because there was no evidence that the veteran had
the claimed condition, retroactive benefits generally would not be in
order. If the prior claim was abandoned or withdrawn, there may also be no
basis for retroactive payments under Nehmer. Cases involving this type of
issue should be brought to the attention of David McLenachen of the Office
of the General Counsel.
12. Criteria governing payment of retroactive benefits in the event a
Nehmer class member has died prior to receiving payment.
(A) Entire Amount of Retroactive Benefits May Be Paid to Survivors or
Estate, Without Regard to Statutory Limit on Payment of Accrued Benefits:
In its December 12, 2000 order, the district court held that, if a Nehmer
class member dies prior to receiving payment of retroactive benefits he or
she would have been entitled to under the Nehmer review, VA is required to
pay the entire amount of such benefits to the class member's estate.
Significantly, the court held that payment of such benefits is not
governed
by 38 U.S.C. § 5121(a), which limits payment of accrued benefits to those
payable for the two-year period immediately preceding death. Accordingly,
if a class member was entitled to retroactive benefits for any period prior
to death, VA is required to pay the entire amount to the appropriate
alternate payee. Standards governing identification of the appropriate
alternate payee are discussed below.
(B) Identifying Appropriate Payee: As stated above, the district court
directed VA to pay retroactive benefits to the estate of a deceased class
member. In view of the impracticality of paying the estate in cases where
there is a known survivor, VA will make payment to the class member's
surviving spouse, child(ren), or parent(s), if any. If there are no such
survivors, VA must pay the retroactive benefits to the class member's
estate, if VA is able to identify an estate for payment. Accordingly, in
the event a class member who would be entitled to payment of retroactive
benefits under Nehmer is deceased, payment must be made to the first
individual or entity in existence listed below:· the class member's spouse;·
the class member's child or children (if more than one child exists, payment
of the retroactive benefits owed shall be divided into equal shares, and
accompanied by an explanation of the division; this includes all children,
regardless of age or marital status.);· the class member's parents (if both
parents are alive, half the retroactive benefits owed shall be paid to each
parent, and accompanied by an explanation of the division);· the class
member's estate. Accordingly, if there is a surviving spouse, child(ren), or
parent(s), any retroactive payments should be paid to such individuals
rather than to the estate.
(C) Circumstances Where VA Cannot Identify Any Appropriate Payee: If a
class member is deceased and the claims file does not clearly identify an
eligible survivor, we would recommend making such reasonable inquiry as the
information on file permits. For example, if the claims file identifies an
authorized representative or a relative, it would be reasonable to contact
such person to request information concerning the existence of a surviving
spouse, child(ren), parent(s), or estate. If a Regional Office cannot
identify or locate any such payee, it should annotate the rating to state
that it was unable to locate any payee eligible for Nehmer payment.
Additionally, the regional office should notify Mr. McLenachen bye-mail that
no payee could be identified, including the claimant's name and file number
in the message. Likewise, if a Regional Office encounters a situation
where
the deceased class member was an incompetent veteran and payment of the
accrued amount would be made to an estate that would escheat to the state,
it should notify Mr. McLenachen.(D) Notice to Payees: Consistent with the
district court's order, payments to survivors are intended to benefit the
heirs of the class member's estate. Accordingly, we ask that any notice
concerning payment to a deceased class member's spouse, child, or parent
include a statement along the following lines: Pursuant to an order of a
United States district court, this payment is intended for the heirs of
[decedent's name]'s estate. If you are not an heir of [decedent's name]'s
estate, you must return the payment. We recommend including guidance on the
procedure for returning payment. Additionally, because VA has appealed the
district court's order requiring payment of retroactive benefits in a manner
inconsistent with 38U.S.C. §5121, amounts paid to a survivor or estate will
be subject to recoupment if VA prevails on its appeal. Accordingly, we
believe it is necessary to inform the payee that the benefits are being
paid to the payee pursuant to a court order and that those amounts will be
subject to recoupment if the court order is overturned on appeal.13.
Additional Recoupment Notice in Cases of Certain Retroactive Awards for
Prostate Cancer and Type 2 Diabetes. VA has appealed the district court's
December 12, 2000 order in Nehmer. If VA prevails on that appeal, it may
be
necessary to seek recoupment of certain retroactive awards in cases
involving prostate cancer and type 2 diabetes. You must notify the claimant
of the possibility of recoupment in the following circumstances:(A) Prostate
Cancer Cases. In any case where an earlier effective date between January 4,
1994 and November 6, 1996 is assigned for prostate cancer, the award letter
sent to the claimant must include the following language: "These
retroactive
benefits are being paid to you as result of the United States District Court
's order in Nehmer v. U.S. Veterans' Admin.Payment for any period before
November 7, 1996 may be subject to recovery by VA in the event the United
States Court of Appeals overturns the district court's order. Recovery of
this payment may include the withholding of future benefit payments until
the retroactive amount has been recovered in full."(B) Type 2 Diabetes
Cases. In any case where an earlier effective date between January 4, 1994
and July 8, 2001 is assigned for type 2 diabetes, the award notice to the
claimant must include the following language: "These retroactive
benefits
are being paid to you as a result of the United States District Court's
order in Nehmer v. U.S. Veterans' Admin. Payment for any period before July
9, 2001 may be subject to recovery by VA in the event the United States
Court of Appeals overturns the district court's order. Recovery of this
payment may include the withholding of future benefit payments until the
retroactive amount has been recovered in full."14. Fast Letter 99-86,
"The
Nehmer lawsuit and the granting of retroactive Agent Orange benefits."
Paragraph 10 of Fast Letter 99-86 states that retroactive benefits are
appropriate only if a claim was both filed and denied after September 25,
1985. This is not correct. The correct rule is that the claim need only have
been denied on or after September 25, 1985.(It may have been filed prior to
that date.) Also, paragraph 12 of Fast Letter 99-86 instructed Regional
Offices not to process any Nehmer cases where the claim was filed after June
9, 1994. Since there has been a subsequent court ruling on prostate cancer
cases and an instruction letter sent out July 17, 2001, the stay directed in
paragraph 12 of FastLetter99-86 has been lifted.15. Questions. Questions
regarding the foregoing, or any matters arising in the review of
individual
Nehmer cases may be referred to attorney David McLenachen of the Office of
the General Counsel. Mr. McLenachen may be reached by e-mail through VA's
global directory. Enclosure II: Effective Dates of Presumptive Herbicide
Regulations Type 2 Diabetes: July 9, 2001Prostate Cancer: November 7,
1996Acute and Subacute Peripheral Neuropathy: November 7, 1996Multiple
Myeloma: June 9, 1994Repiratory Cancers: June 9, 1994Porphyria Cutanea
Tarda: February 3, 1994Hodgkin's Disease: February 3, 1994Non-Hodgkin's
Lymphoma: May 19, 1993Soft-tissue Sarcoma: October 15, 1991
Enclosure III: Letter Sent To Claimants IMPORTANT INFORMATION FOR THOSE
INTERESTED IN DISABILITY COMPENSATIONORDEPENDENCY AND INDEMNITY COMPENSATION
(DIC) FOR DISABILITY OR DEATHFROM EXPOSURE TO HERBICIDES The Department of
Veterans Affairs (VA) recently issued a regulation that presumes service
connection for type 2 diabetes in veterans exposed to Agent Orange or
other
herbicides during service. A court order requires VA to review certain prior
decisions denying service connection for type 2diabetes based on a
regulation that was in effect from September 25, 1985 to May 3, 1989. We
will also review certain prior decisions denying service connection for type
2 diabetes between May 3, 1989 and July 9, 2001.Ourrecords indicate that you
may have claimed disability compensation or DIC for type 2 diabetes during
the period September 25, 1985 to July 9, 2001.This letter advises you of
your rights and responsibilities. The case of Nehmer v. United States
Veterans' Administration, 712 F. Supp.1404 (N.D. Cal. 1989) (Nehmer),
originated in 1986 as a class-action lawsuit against the VA (formerly
Veterans' Administration) by Vietnam veterans and their survivors who
claimed that VA had improperly denied their claims for service-connected
disability compensation for disabilities allegedly caused by exposure to
the herbicide Agent Orange in service. In May 1989, the Court invalidated
a
portion of VA's regulations covering disability and death claims based on
herbicide exposure and all benefit denials made under those regulations.
The Nehmer ruling requires VA to review certain previously denied claims and
when appropriate, issue new decisions regarding those claims. This ruling
may affect your entitlement to VA disability compensation or DIC benefits.
WHAT CLAIMS WILL VA REVIEW?VA will review your previously denied claim if; you
are a member of the Nehmer class (you claimed service connection based
on herbicide exposure or you qualify for a presumption of herbicide exposure
because of your service in Vietnam between January 9, 1962 and May 7,
1975);and; your claim sought service connection for type 2 diabetes; and; your
claim was filed or denied between September 25, 1985 and July9,
2001.If you claimed disability compensation
or DIC for type 2 diabetes based on herbicide exposure and VA finally denied
your claim before
September25,1985 (including all appeals), the Nehmer ruling does not require VA
to review your claim. However, you may now file a new claim, which VA
will decide using its current regulations. If you have not claimed disability
compensation or DIC for type 2 diabetes based on herbicide exposure, you
may do so now. Any claim you now file will be decided using VA's current
regulations. If VA approves your claim, the amount of money you will
receive may depend upon the date VA receives your claim. The earlier VA receives
your claim, the more money you may receive if your claim is approved.
Claim forms (VA Form 21-526 for service-connected disability claims and VA
Form21-534 for DIC claims) are available at any VA Regional
Office or online at www.vba.va.gov/pubs/candpforms.htm.
WHAT EFFECTIVE DATE WILL VA ASSIGN TO MY CLAIM? Under Nehmer, if your
claim was filed or denied between September 25, 1985andJuly 9, 2001, VA may
award
benefits retroactive to; the date that VA received your claim; or; the date that
the disability arose (compensation claims) or death occurred (DIC
claims); whichever is later. In all other cases, VA may award benefits
retroactive to; July 9, 2001; or; the date one year prior to the date VA
received a claim; or; the date that the disability arose (compensation claims)
or death occurred (DIC claims); whichever is later.
WHAT ARE MY RIGHTS AND RESPONSIBILITIES? You have the following rights and
responsibilities under this Notice:; You may be entitled to a new decision
or initial decision on your claim.; VA will make a new or initial decision on
your claim using all of the procedural rights normally available during
VA proceedings.; You will be given 60 days from the date of this notice to
present new evidence or reasons why your claim should be granted under the
new type2 diabetes regulation.; If you do not present new evidence or
reasons supporting your claim, VA will decide the claim using only the evidence
we already have.; VA will notify you when it makes a final decision concerning
your claim.
WHO TO CALL IF YOU HAVE QUESTIONS OR NEED ASSISTANCE You can contact the lawyers
who represent the Nehmer class members at the following address:
Counsel for Plaintiff Class National Veterans Legal Services Program Attention:
Nehmer Class Member Information2001 S. Street, N.W.Suite
610Washington, D.C. 20009VA benefits counselors are also available at each VA
Regional Office to answer any questions you may have concerning your
rights under this Notice, please call us at1-800-827-1000. If you use a
Telecommunications Device for the Deaf (TDD),the number is
1-800-829-4833.Sincerely yours, Ronald J. Henke, Director Compensation and
Pension Service
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E-MAIL FROM D.A.V. 3 ADJUTANT
(Fri, 6 Dec
2002 17:32:16 +0800)
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