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 1,700 additional
diabetes 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 the 1995
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
SOURCE DOCUMENT: E-MAIL FROM D.A.V. 3 ADJUTANT
(Fri, 6 Dec
2002 17:32:16 +0800)
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