Ruling May Affect Your Entitlement To VA Disability Compensation or DIC Benefits|
The Nehmer ruling requires the VA to review certain previously denied claims and when appropriate, issue new decisions regarding those claims.
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Gerald A Ney (email@example.com) sent:
December 3, 2002
Director (00/21) In Reply Refer To: 211A VA 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.
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 to 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.
Pursuant to a court order in the case of Nehmer v. U.S. Veteransí Admin., C.A. No. C-86-6160 (THE) (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 2 diabetes 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 2 diabetes 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 the re-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:
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 McLenachen of the Office of General Counsel.
Mr. McLenachen may be reached through VA's global e-mail directory.
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. ß 3.309(e).
This memorandum largely restates the prior guidance in a manner intended to make clear its application to all diseases covered by section 3.309(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. ß 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. 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. ß 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. ß 5110(g) and 38 C.F.R. ß 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 2 diabetes. In 2001, the veteran claimed compensation for Type 2 diabetes, 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 2 diabetes, as neither the application nor the evidence of record suggest 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. ß 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. ß 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. ß 3.155(c).
Example: A veteran filed a formal claim for service connection of Type 2 diabetes in 1979. VA denied the claim in 1980. In 1986, the veteran submitted a letter stating "please consider service connection for Type 2 diabetes." 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. ß 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.
(C) 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. ß 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. ß 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 section 5101(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 38 C.F.R. ß 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 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, 13 Vet. 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 (VA Form 21-530) indicates that the surviving spouse alleges that the cause of death was due to service, VA must forward the claimant an application for DIC (VA Form 21-534) in accordance with 38 C.F.R. ß 3.155(a). If the completed Form 21-534 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 the 1995 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. ß 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:
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 by e-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 38 U.S.C. ß 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 courts 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 a 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 Fast Letter 99-86 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, 2001 Prostate Cancer: November 7, 1996 Acute and Subacute Peripheral Neuropathy: November 7, 1996 Multiple Myeloma: June 9, 1994 Repiratory Cancers: June 9, 1994 Porphyria Cutanea Tarda: February 3, 1994 Hodgkin's Disease: February 3, 1994 Non-Hodgkin's Lymphoma: May 19, 1993 Soft-tissue Sarcoma: October 15, 1991
Enclosure III: Letter Sent To Claimants
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 2 diabetes 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. Our records 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:
If you claimed disability compensation or DIC for type 2 diabetes based on herbicide exposure and VA finally denied your claim before September 25, 1985 (including all appeals), the Nehmer ruling does not require VA to review your claim.