15 February 2012

VA Retroactive AO Rules (per Nehmer decision)

VA Publishes Agent Orange Retroactivity Rules (Nehmer Decision)
(this is of greater interest to our Vietnam veterans)

Since 1991, the VA has been required to follow special retroactive benefit 
rules whenever it grants a disability compensation claim or a claim for death 
benefits under the VA’s Agent Orange rules. These rules are very favorable to 
Vietnam veterans and survivors of Vietnam veterans and they are contained 
in an Order issued by the U.S. District Court for the Northern District of California 
in the Nehmer class action brought by lawyers from the National Veterans Legal 
Services Program.
The VA finally recognized that the retroactive benefit rules are complex and that 
VA regional offices and the Board of Veterans’ Appeals need more guidance 
on how to apply the rules. As a result, on August 25, 2003, the VA published 
detailed regulations that VA regional offices and the BVA must follow in deciding 
the effective date of benefits awarded under the VA’s Agent Orange rules. (The 
effective date of an award controls the amount of retroactive benefits to which a 
Vietnam veteran or a survivor of a Vietnam veteran is entitled when the VA grants 
an Agent Orange claim).
The new regulations also explain that if the person to whom the retroactive 
benefits is owed (that is, the Vietnam veteran or the survivor of a Vietnam veteran 
who claimed death benefits) dies before the VA is ready to make the payment, 
the VA does not get to keep the money; instead, the VA must make the payment 
to the surviving spouse, surviving children, or surviving parent of the deceased 
individual, or, if no such surviving family member exists, to the individual’s estate.
What follows are:
The new regulation – which is 38 C.F.R. § 3.816; and The VA’s detailed explanation
of the meaning of these rules, which the VA published on January 28, 2003, when it
first proposed the new regulation.
THE NEW VA REGULATION -- 38 C.F.R. § 3.816
§ 3.816—Awards under the Nehmer Court Orders for disability or death caused 

by a condition presumptively associated with herbicide exposure.              
(a) Purpose. This section states effective-date rules required by orders of a United 

States district court in the class-action case of Nehmer v. United States Department 
of Veterans Affairs, No. CV-86-6160 TEH (N.D. Cal.).
(b) Definitions. For purposes of this section-
(1) Nehmer class member means:
(i) A Vietnam veteran who has a covered herbicide disease; or
(ii) A surviving spouse, child, or parent of a deceased Vietnam veteran who died 

from a covered herbicide disease.
(2) Covered herbicide disease means a disease for which the Secretary of Veterans 

Affairs has established a presumption of service connection before October 1, 2002 
pursuant to the Agent Orange Act of 1991, Public Law 102-4, other than chloracne. 
Those diseases are:
(i) Type 2 Diabetes (Also known as type II diabetes mellitus or adult-onset diabetes).
(ii) Hodgkin's disease.
(iii) Multiple myeloma.
(iv) Non-Hodgkin's lymphoma.
(v) Acute and Subacute peripheral neuropathy.
(vi) Porphyria cutanea tarda. 

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