How to compute Nehmer Effective Date in an Agent Orange VA Claim

nehmer effective dateI get a lot of questions from Vietnam and Vietnam-Era Veterans  asking whether or not the VA properly computed the effective date for a particular Agent-Orange related condition under Nehmer.

I am going to provide a few tools that a military veteran can use to verify that their effective date for a service connected condition was properly determined by the VA, but first will give some background on Nehmer claims.

 





What is Nehmer?

Nehmer is a series of rulings flowing from a 1986 class-action lawsuit by Vietnam Veterans All Veterans exposed to Dioxin and their survivors. Nehmer v. United States Veterans' Administration, 712 F. Supp. 1404, 1409 (N.D. Cal. 1989) (aka, “Nehmer I”); Nehmer v. United States Veterans' Administration, No. CV-86-6160 (TEH) (N.D. Cal. May 17, 1991) (aka, the “Nehmer Stipulation”); Nehmer v. United States Veterans' Administration, 32 F. Supp. 2d 1175, 1183 (N.D. Cal. 1999) (aka, “Nehmer II”).

What does Nehmer do?

The Nehmer Courts have  held that, when the VA issues a liberalizing rule that provides presumptive service connection for a new condition, the VA is required to re-adjudicate cases in which VA previously denied Veteran/Survivor’s claim for benefits related to that  new presumption.

The Nehmer rulings and stipulation apply on to liberalizing rules regarding presumptive service connection for Agent Orange and other herbicides used during the Vietnam War. Nehmer has again become a hot topic among military Veterans due to the VA's  liberalizing rule that expands VA disability benefits for  Vietnam Veterans who were exposed to Agent Orange.

The newest rules, effective August 1, 2010, provides a legal presumption that Ischemic Heart Disease was caused by Agent Orange exposure.

 

 

How to Determine the Proper Nehmer Effective Date for an Agent Orange Claim.

In setting an effective date for compensation to a military Veteran, consider the following:

1) If a Veteran filed a claim for Ischemic Heart Disease (see note below on what constitutes a "claim") within one year of his or her discharge from the military, the Effective Date will be the day following discharge from military service.

2) If a military Veteran has filed a claim for an Ischemic Heart Disease prior to the effective date of the liberalizing rule, and the VA has denied that claim, the effective date is the later of:

a) the date the disability arose, or,

b) the date the VA received the claim underlying the prior denial.

3) If the Veteran had not filed a claim for an Ischemic Heart Disease prior to the effective date of the new liberalizing rule, the VA's general rules on effective dates apply.

4) For DIC claims, the Effective Date will be the date VA received the claim that led to the denial or, if the claim was filed within one year of the veteran’s death, the first day of the month the death occurred.

5)  If a Veteran dies after the date of the VA regulation adding the disease to the presumptive list, but before receiving retroactive benefits, unpaid retroactive benefits are paid to the claimant’s survivors or estate in the following order:

a) Surviving spouse

b) Surviving children

c) Surviving parents

d) Estate of the Claimant.





What Constitutes a "Claim" under Nehmer?

Finally, a note on what constitutes a "claim" to the VA for benefits under Nehmer.   I could rattle off a legal definition that would likely boggle the mind, but instead, I will tell you how we analyze cases to determine whether a Veteran had a claim or not.

1) First, we  search the military Veteran's available medical and treatment records to find the earliest references to the condition.

2) Then, we look for the very next Ratings Decision in the Claims File that denies service connection for any condition.  

3) We then argue that date is the proper effective date.

There need not be a precise diagnosis of a specific Ischemic Heart Disease - all that is needed is medical evidence of a disease that may  reasonably  be construed as the same as the covered disease.

The evidence must be in the record before the VA at the time of any prior denial, or the Veteran must be able to prove that it should have been in the record at the time of any prior denial.

 

Addition to Original Post: VA's "Nehmer" Regulation.

The VA passed, in February 2012, a regulation that purports to identify the rules for Nehmer Effective Dates:  38 C.F.R. §3.816.  

I don't like relying solely on this regulation, as it is premised on an erroneous interpretation of Nehmer - that being that Nehmer only applies to Veterans who had 'Boots on the Ground' in the RVN.  

The Nehmer class was much larger - all Veterans and their survivors whose claim is rooted in exposure to dioxin (regardless of where in the world they were exposed)

Determining the proper effective date for Ischemic Heart Disease - or any Agent Orange presumptive condition - under Nehmer can get very confusing.   It is always best to consult with an accredited Veterans' Benefits attorney when trying to determine if and how Nehmer applies to your case.

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