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The VA’s Special Effective Date Rules for Agent Orange Claims

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If you have recently received a favorable decision from the VA on your Agent Orange claim, you may think that the long fight with the VA is over. But before you decide whether or not to appeal the decision, you will want to be sure that the VA got both the disability rating and the effective date correct. Perhaps the most complicated issue when it comes to Agent Orange-related claims are the special effective date rules (found in 38 C.F.R. 3.816) that apply to some Veterans as a result of the Nehmer class action lawsuit. Note that the special Nehmer effective dates apply only to Veterans who served on the landmass of Vietnam or its inland waterways (hopefully soon to include Da Nang Harbor).

Before we discuss the Nehmer effective date rules, it is helpful to understand the basics of the Nehmer class action itself. The lawsuit was filed in 1986 (and certified as a class action in 1987) to challenge a VA regulation from 1985 which gave presumptive status to chloracne claims only. In 1989, the court invalidated the 1985 regulation, finding that the regulation required too high of a standard of proof and required the VA to undergo new rulemaking standards. Two years later, in 1991, the parties reached a final stipulation as to how the VA would treat class members if the VA added new regulations in the future which added diseases to the presumptive list. The stipulation and order provided that whenever the VA adds a disease to the presumptive list, the VA must identify all Veterans (and their survivors) who were previously denied service connection for that disease or had claims pending between September 25, 1985 and the publication date of the regulation adding the disease. Once such Veterans are identified, the VA must re-decide their claims based on the new regulation and allow the Veterans to submit new evidence. If service connection is granted, the VA must apply the special effective date rules that were also part of the 1991 stipulation and order. Since 1991, the VA has been required to do mass reviews of claims for the following: Non-Hodgkin’s lymphoma and soft-tissue sarcoma (1991); Hodgkin’s disease, respiratory cancers, and multiple myeloma (1994); prostate cancer (1996); type 2 diabetes (2001); chronic lymphocytic leukemia (2003); primary AL amyloidosis (2009); and ischemic heart disease, Parkinson’s disease, and b-cell leukemias (2010).

Because the effective date rules under Nehmer are so different, here is a quick refresher as to how effective dates are normally treated. Under normal VA rules, the effective date for an award under a so-called “liberalizing regulation” (meaning, a new regulation that makes it easier for a Veteran to get benefits) cannot be earlier that the effective date of that liberalizing regulation (usually, the publication date). For example, a Veteran’s claim was denied in 1994, and he reopens the claim on May 1, 2002. On October 1, 2002, the VA adopts a new regulation that is helpful to the Veteran and his claim is granted due to that new regulation. Even though the Veteran reopened his claim in May, the effective date for his claim cannot be earlier than October 1, 2002, because that is the effective date of the liberalizing regulation.

But under the special Nehmer effective date rules, it does not matter when the VA adds a disease to the presumptive list. The rule is that the effective date is the latter of the date the VA received the initial claim for an Agent Orange-related disease (“initial claim” means the first claim filed after or pending on September 25, 1985) or the date the Agent Orange-related disease was first diagnosed. In simplest terms, if a Veteran filed his first claim for an Agent Orange-related disease before the VA added the disease to the presumptive list, the effective date of his claim (provided the disease eventually gets added to the list) is usually the date of the first claim. So as mentioned above, even if a disease has not been added to the presumptive list yet, such as renal cancer, a Veteran should file a claim now in order to preserve the earliest possible effective date under these special Nehmer rules.

It is also important to note some other particularities about Nehmer claims. In regards to the initial claim, that claim does not need to have mentioned Agent Orange specifically in order to qualify as the “initial claim” under the Nehmer rules. In addition, if the Veteran dies before his initial claim is re-decided under Nehmer, the VA still must decide the claim and pay, in priority order, his spouse, children of any age, his parents, or his estate.

Another tricky Nehmer rule relates to evidence of an Agent Orange-related disease that is in a Veteran’s C-File. For example, say a Veteran filed a claim for service connection for arthritis in 1995. While that claim was still pending, a 1998 diagnosis of ischemic heart disease was added to the Veteran’s C-File. If the arthritis claim became final in 1999, and the Veteran filed a new claim for ischemic heart disease in 2010 when the disease was added to the presumptive list, the effective date for his claim goes back to 1998, even though the initial claim was not for ischemic heart disease. What matters in this situation is that the diagnosis was part of the Veteran’s C-File from 1998 onward.

As you can see, these special Nehmer effective date rules are very technical and are something that the VA gets wrong a lot, so it is always important to double-check the effective date of such a claim to make sure it is correct or you may be missing out on many years of retroactive benefits.

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