VA Publishes The Retroactive Benefit Rules For Agent Orange Claims
Required By The Nehmer Court Order (from VA announcement Feb 12)
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 AO-related benefit rules
are quite complex and that VA regional offices and the BVA need more
guidance on how to apply the rules. As a result, on August 25, 2003, 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 AO rules. (The effective date
of an award controls the amount of retroactive benefits 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, or, if no such surviving
family member exists, to the individual’s estate.
The new regulation – which is 38 C.F.R. § 3.816; and VA’s detailed explanation of
the meaning of these rules, which the VA published 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/death caused by
a condition presumptively associated with herbicide exposure.
(a) Purpose. This section states effective-date rules required by orders of a US
district court in the class-action case of Nehmer v. United States Department 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 deceased from
covered herbicide disease.
(2) Covered herbicide disease means a disease for which Secretary Veterans Affairs
has established a service connection presumption before October 1, 2002 pursuant to
the Agent Orange Act of 1991, Public Law 102-4, other than chloracne. 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.