Nehmer Claims: What You Need to Know

CCK Law: Our Vital Role in Veterans Law

Background

Nehmer v. U.S. Department of Veterans Affairs was a 1986 class action lawsuit brought against VA by the National Veterans Legal Services Program (NVLSP).  Veterans believed VA’s standard used to determine whether diseases were related to Agent Orange was too limited, violating the 1984 Veterans’ Dioxin and Radiation Exposure Compensation Act.  At the time of the case, VA stated that chloracne was the only disease scientifically related to Agent Orange exposure.

In 1991, NVLSP’s attorneys negotiated a favorable “consent decree” – a settlement that resolved the dispute without either party admitting guilt or liability – with VA.  The settlement involved VA agreeing to issue a new regulation providing presumptive service connection for more diseases, and readjudicate previously denied claims that were related to those diseases.  In other words, the Court overturned the part of the VA regulation that stated only chloracne was associated with Agent Orange, and voided all claims that were denied under that regulation.  VA was then ordered to re-adjudicate all previously denied claims.

NVLSP also negotiated an agreement that requires VA to take certain actions when it recognizes a new disease as scientifically linked to Agent Orange exposure.  When VA adds a new condition to the presumptive list, it must do the following:

• Identify all claims for the recognized disease that were previously filed and/or denied, and
• Pay disability and death benefits to these veterans or their survivors, retroactive to the date VA received the original claim.

In 2010, VA added the following condition to the list of presumptive conditions caused by exposure to Agent Orange: (1) ischemic heart disease; (2)Parkinson’s disease, and (3) B-cell leukemia. VA has already reviewed more than 140,000 past claims for these diseases and is in the process of reviewing the remaining claims.

Because of complex rules governing who is considered a Nehmer class member, what counts as claim under the Nehmer consent decree, and how far back to pay retroactive benefits, VA has failed to reach out to certain eligible veterans and assigned incorrect effective dates. Read on to see if you, as a veteran or a survivor, qualify for compensation under Nehmer.

Nehmer Class Members

Nehmer class members include not just eligible veterans, but also survivors of eligible veterans (e.g., spouse, children, parents).  This means that if the veteran dies prior to receiving payment for any ­Nehmer-related benefits, VA will pay any unpaid retroactive benefits to the veterans’ spouse, child(ren), or parent(s).  And if the veterans’ survivors are deceased, retroactive benefits may be paid to any of the “class members’” surviving spouse, child(ren), or parent(s).

Importantly, if no survivors can be located, the retroactive benefits will be paid to the veteran’s estate.

Nehmer Eligibility Requirements for Veterans

For a veteran or their survivor to be eligible for benefits under Nehmer, the veteran must have:

• Served in Vietnam; and

• Filed a claim and/or had a claim denied, which includes a claim inferred (see “What counts as a claim?” section) for one of the three new presumptive conditions; and
• That claim was filed, denied, or inferred between September 25, 1985 and August 31, 2010, the date VA published the final regulation; and
  • Note: If the claim was filed before September 25, 1985 but still pending or on appeal on or after September 25, 1985, the veteran is still eligible.
• The veteran is diagnosed with one of the presumptive diseases, or has a diagnosis that could be reasonably interpreted as one of the covered diseases.

Unfortunately, only veterans with duty or visitation (i.e. “boots on the ground”) in the Republic of Vietnam, or on its inland waterways, between January 9, 1962, and May 7, 1975, make up the class of veterans affected by the Nehmer review.  If you’re not sure you qualify, read our post about what counts as “boots on the ground” in Vietnam.

Blue Water Navy Veterans may qualify under the Nehmer class as well.

This means that veterans who served in the Korean DMZ or Thailand are not considered part of the Nehmer class.  However, service connection may still be possible.

Again, as part of the Court’s decision, VA was ordered to review all previously denied claims of Nehmer class members and pay out retroactive benefits.  However, not all Nehmer class members were identified.  If you believe you are eligible for an earlier effective date under Nehmer, you should strongly consider enlisting the help of a veterans advocate.

Nehmer Eligibility Requirements for Survivors

If a Nehmer class member dies before receiving benefits, VA will pay any unpaid retroactive benefits to the first individual listed below that is in existence at the time of payment:

1. The class member’s spouse, regardless of current marital status
   • A spouse is the person who was legally married to the class member at the time of the class member’s death
2. The class member’s child(ren), regardless of age or marital status
   • If more than one child exists, payment of the retroactive benefits owed shall be divided into equal shares
3. The class member’s parent(s), regardless of dependency
   • If both parents are alive, half the retroactive benefits owed will be paid to each parent
4. The class member’s estate

Agent Orange Presumptive Diseases

In this post, we will focus on the three most recent additions to VA’s list of presumptive diseases – ischemic heart disease, chronic B-cell leukemia, and Parkinson’s disease.  At the end of this section, however, you will find a list of all covered conditions and the dates they were added to the list.

Ischemic Heart Disease

According to VA, “ischemic heart disease” includes but is not limited to

• Acute, subacute, or old myocardial infarction (i.e., heart attack);
• Atherosclerotic cardiovascular disease, including
  • Coronary artery disease (CAD), including coronary spasm
  • Coronary bypass surgery
• Stable, unstable, or Prinzmetal’s angina (i.e., chest pain)

Since the term refers only to heart disease, it does not include hypertension, nor peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke.

Chronic B-Cell Leukemia

B-cell leukemia describes several different types of lymphoid leukemias and includes the following types:

• B-cell B-cell chronic lymphocytic leukemia/small lymphocytic lymphoma
• Acute lymphoblastic leukemia, mature B-cell type
• B-cell prolymphocytic leukemia
• Precursor B lymphoblastic leukemia
• Hairy cell leukemia

There are fourteen kinds of lymphomas involving B-cells:

• Diffuse large B-cell lymphoma
• Follicular lymphoma
• Mucosa-associated lymphatic tissue lymphoma (MALT)
• Small cell lymphocytic lymphoma (overlaps with the chronic lymphocytic leukemia)
• Mantle cell lymphoma (MCL)
• Burkitt lymphoma
• Mediastinal large B-cell lymphoma
• Waldenstrm macroglobulinemia
• Nodal marginal zone B-cell lymphoma (NMZL)
• Splenic marginal zone lymphoma (SMZL)
• Extranodal marginal zone B-cell lymphoma
• Intravascular large B-cell lymphoma
• Primary effusion lymphoma
• Lymphomatoid granulomatosis

Parkinson’s Disease

Parkinson’s disease belongs to a group of conditions called motor system disorders, which are the result of the loss of dopamine-producing brain cells. The four primary symptoms of Parkinson’s are tremor, or trembling in hands, arms, legs, jaw, and face; rigidity, or stiffness of the limbs and trunk; bradykinesia, or slowness of movement; and postural instability, or impaired balance and coordination.

Other symptoms may include depression and other emotional changes; difficulty in swallowing, chewing, and speaking; urinary problems or constipation; skin problems; and sleep disruptions.  There are currently no blood or laboratory tests that have been proven to help in diagnosing sporadic PD.  Therefore the diagnosis is based on medical history and a neurological examination.

Conditions Covered by Nehmer

• Soft-tissue Sarcoma  —  October 15, 1991
• Hodgkin’s disease  —  February 3, 1994
• Non-Hodgkin’s lymphoma  —  May 19, 1993
• Porphyria cutanea tarda  —  February 3, 1994
• Lung cancer  —  June 9, 1994
• Bronchus cancer  —  June 9, 1994
• Larynx cancer  —  June 9, 1994
• Trachea cancer  —  June 9, 1994
• Multiple myeloma  —  June 9, 1994
• Acute and Subacute peripheral neuropathy  —  November 7, 1996
• Prostate cancer  —  November 7, 1996
• Type 2 Diabetes  —  May 8, 2001
• Chronic lymphocytic leukemia (CLL)  —  October 16, 2003
• AL Amyloidosis (ALA)  —  May 7, 2009
• Ischemic heart disease  —  August 31, 2010
• Parkinson’s disease  —  August 31, 2010
• B-cell leukemia  —  August 31, 2010

Effective Dates

The effective date for previously submitted claims must be one of the following dates:

• The later of the following:
  • The date VAreceived the claim (this can be a date prior to September 25, 1985, if the claim was pending or on appeal on September 25, 1985), or
  • The date the disability arose

OR

• The day following the date of the class member’s separation from active service, if the claim was filedwithin one year from the date of separation

The effective date for Dependency and Indemnity Compensation (DIC) claims must be one of the following dates:

• The date VA received the claim, or
• The first day of the month of the veteran’s death, if the claim was filed within one yearfrom the date of the veteran’s death

NOTE:  If the class member’s claim for DIC was either pending on May 3, 1989, or was received by VA between May 3, 1989 and August 31, 2010, the effective date of the award will be the later of the date the claim was received by VA or the date the death occurred.

Do I Need to File a New Claim?

If you have previously filed a claim for a condition VA now recognizes as linked to Agent Orange, you are not required to file a new claim. VA is required to search its own records to find eligible veterans or survivors and award benefits, without action on the veteran or survivor’s part.

You can, however, submit evidence at any time. There is no time limit for submission.

What Counts as a Claim Under Nehmer?

Typically, a “claim” is submitted via a VA form or a formal request. A “claim” in the context of Nehmer, however, is a little more broadly interpreted.

According to VA, a claim meeting the eligibility requirements of Nehmer can be any of the following:

• A claim for Service Connection
• An informal claim
• A pension claim
• An inferred claim for Service Connection
• A claim inferred by Veteran or VA during review
• Notice of Death
• A claim for burial benefits
• A claim for Dependency and Indemnity Compensation (DIC), death pension or accrued benefits
• Social Security Administration – VA Form 21-4182, Application for Dependency and Indemnity Compensation or Death Pension
• VA Form 21-601,Application for Accrued Amounts Due To A Deceased Beneficiary

In some instances, VA may grant an award without a formal claim ever being filed. If, at the time of a prior decision on another compensation claim, VA had medical evidence containing a diagnosis of a now-covered condition, then the condition is considered to have been part of the previously denied claim. That is, if you filed a claim for a non-exposure-related condition and in the medical records you submitted for that claim there is documentation of the existence of your now-presumptive disease, then that claim counts as a claim for your Nehmer condition.

Note: Your previously submitted claim does not need to mention exposure to herbicides as the basis for service connection.