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Court Orders Ao Presumptive Rules To Be Published

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SgtAFMOB

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The twitter site for www.vawatchdog.org announced an hour ago that The US Circuit Court of Appeals for the Federal Circuit issued an order July the 15th that requires the VA Secretary to publish the new rule or an interium rule by noon Monday the 19th. The alternative is to appear and explain why not. This suit was brought by the Paralyzed Veterans of America, the NVLSP, and three other advocacy organizations. Suggest interested parties read the full account at Vawatchdog. Let the fur fly!!!!

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Thanks for your summary JRW as you did on the other forum, both are the most logical presentations on the subject matter. I found the rule at OMB before the proposed rule was published and it had been there since December, now we have it at OMB again. I could not find a double review in the process and wondered why court ordered time frames were not being adhered to then. The NVLSP proposed suit moved the rule to the proposed rule stage. Any thoughts?

SgtAFMOB,

These proposed presumptives are going to be very expensive, when compared to the previous ones. I'm certanily in favor of them, but I think we are going to have to accept the fact that there's still a short distance to go. I am not the least bit impressed with the PVA court-ordered hearing for July 19th. The VA will appear but I don't think the judicial system will be able to move this thing any faster. I get the impresson that the PVA, NVLSP, and maybe others may want the VA to issue an Interim regulation. But I'm not sure that an Interim regulation, in and of itself, will activate the Congressional Review Act (CRA). I know of no instance where the CRA has activated the 60 day review process for any Interim regulation, as far as that is concerned. The CRA is only activated when a Final regulation is entered into the Federal Register. And with the new presumptives being a significant major rule from a monetary standpoint, they must go through the CRA review process. My personal opinion about these lawsuits is that, at times, they can be more of a hinderance than being something of good.

The history of all of the prior presumptives being added have ranged from 6 months from announcement date, to 21 months Federal Register date. There is precedence, here, for the court ordered time frames not being followed, as long as a good reason is given. If you look at the complexity in the published preliminary regulations on the new presumptives, I would conclude there is valid reason for now following the court ordered time frames. I don't think the new ones will go 21 months, however. I am estimating mid to late fall of this year.

Also, to be perfectly honest here, I'm far more concerned with what type of effective pay date for new claims and what part Nehmer will be allowed to play in the new presumptives. Don't be surprised if, somehow, the Nehmer clause were to be amended by Congress to avoid such massive payouts that are sure to come from the new presumptives.

In summary, I know this sounds like a cracked record, but we've got to continue to be patient here. These presumptives will get here, in my opinion, but only through the bureaucratic system that we have. Threats of lawsuits and or federal court hearings to speed the process up, are a waste of time. Don't be deceived by them. We just all need to stay focused on the ultimate prize - implementation of the new presumptives.

Just my two cents worth.

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I keep hearing and reading thet the Congressional review does not stop the working up and payment of claims. Only a Congressional resolution could do that. So what purpose does the Congressional review have? It is law already, why did Webb have to put in an amendment for it? To delay an effective date of the rule may mean to delay an effective date on a claim? How could they ignore Nehmer on cases where there is a previously denied claim sometimes years ago for a presumtive related to AO exposure? If you filed a claim post the announcement in October, is your EED the date of the claim or the date of the rule becoming final? Help me to understand please. NVLSP is wanting to know from Vets the date of when they first filed the claim and were denied. I assume to protect their Nehmer class? Someone said they might want to amend the law, to prevent Nehmer from coming into play. how can they do that?

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I keep hearing and reading thet the Congressional review does not stop the working up and payment of claims. Only a Congressional resolution could do that. So what purpose does the Congressional review have? It is law already, why did Webb have to put in an amendment for it? To delay an effective date of the rule may mean to delay an effective date on a claim? How could they ignore Nehmer on cases where there is a previously denied claim sometimes years ago for a presumtive related to AO exposure? If you filed a claim post the announcement in October, is your EED the date of the claim or the date of the rule becoming final? Help me to understand please. NVLSP is wanting to know from Vets the date of when they first filed the claim and were denied. I assume to protect their Nehmer class? Someone said they might want to amend the law, to prevent Nehmer from coming into play. how can they do that?

You are correct in that once the Final regulation is published into the Federal Register, it would become effective on that date of publication. This is straight from the general counsel of the VA itself. But since the rule is one that is considered economically significant, actual payout cannot begin until completion of the 60 day review under the Congressional Review Act. Although processing of claims can commence during these 60 days, no monies will be paid out until Congress completes its review. That is the law. Webb's amendment was really a waste of time on his part. His admendment has no bearing, whatsoever, on the process.

As I stated earlier, I am more concerned now, about what the effective date will be for new claims and what part Nehmer will play. To me, those are the most important questions, yet to be answered. And, yes, Congress can amend the overall Agent Orange law to restrict or remove enforcement of the Nehmer clause. The Nehmer clause was the result of a judicial determination. It was never a part of the original Agent Orange legislation that became law. Congress can overide that judicial determination by removing Nehmer if is so chooses, through legislation. Success depends if they could get enough votes in both houses and for the President to sign off on it. However, this would have to be done separately from the Congressional Review Act. Which means, that at the end of the 60 days, if Congress has not vetoed the regulation, it still goes into full effect while they are working on a separate piece of legislation to end the Nehmer clause.

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"separate piece of legislation to end the Nehmer clause"

This can be done-- but the hue and cry if it's made retroactive will be interesting, to say the least!

I would think that claims made under the existing laws and thus subject to Nehmer would continue to stand in all respects.

Politics, coming elections, and all that!

You are correct in that once the Final regulation is published into the Federal Register, it would become effective on that date of publication. This is straight from the general counsel of the VA itself. But since the rule is one that is considered economically significant, actual payout cannot begin until completion of the 60 day review under the Congressional Review Act. Although processing of claims can commence during these 60 days, no monies will be paid out until Congress completes its review. That is the law. Webb's amendment was really a waste of time on his part. His admendment has no bearing, whatsoever, on the process.

As I stated earlier, I am more concerned now, about what the effective date will be for new claims and what part Nehmer will play. To me, those are the most important questions, yet to be answered. And, yes, Congress can amend the overall Agent Orange law to restrict or remove enforcement of the Nehmer clause. The Nehmer clause was the result of a judicial determination. It was never a part of the original Agent Orange legislation that became law. Congress can overide that judicial determination by removing Nehmer if is so chooses, through legislation. Success depends if they could get enough votes in both houses and for the President to sign off on it. However, this would have to be done separately from the Congressional Review Act. Which means, that at the end of the 60 days, if Congress has not vetoed the regulation, it still goes into full effect while they are working on a separate piece of legislation to end the Nehmer clause.

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The original regulations and fact sheets took into account Nehmer retro.

In my comment at the Federal Register site I stated:

I am a volunteer veteran's advocate and also the widow of a veteran whose death was service connected due to Agent Orange.

Comments:

1.The definition of Ischemic heart disease, relying on Harrison's Principles of Internal Medicine ( 2008 Edition on line per the regulation) is concise enough for VA to properly identify and rate IHD even though the medical records could show a different nomenclature that means the same disability. The regulation, on page 5 of 20,separates HTN, PAD, and CVA from inclusion in the specific IHD regulations.

However the VA could (and should) infer any of these or other known medical conditions with an IHD etiology, that appear in the veteran's medical records, and establish a proper secondary service connected rating for them, if they raise to a compensable level,when they resolve these AO claims.

2.Retroactive Benefits – On page 9 0f 20 of the proposed regulation ,”Retroactive benefits costs”,has an asterisk next to it and then below under the “Total Obligations by Presumptive Condition” ,the asterisk references “retroactive benefits costs are paid in the first year only.”

I feel this statement needs to be clarified because surely the VA does not mean to limit the Nehmer Court Order and Stipulation to retroactive awards only being paid “in the first year” and the 'first year' is not defined.

3.The regulation refers to “Vietnam veterans” but of course would apply to any veteran who can prove exposure to Agent Orange, anywhere during the warm such as the recent AO CONUS award, the Thailand veterans who have succeeding in proving direct exposure to Agent Orange and the Korean War veterans who fall under the regulations as spelled out in M21-1MR .Part IV,subpart 2.C.10.1 (2008).

Thank you for considering my comments here.

I called the man in VA Central whose name and number appeared on the regulationsbe fore I commented and he had no idea as to what the VA meant in page 9 of 20 as to "in the first year."

I never had time to read all the comments they got but sure hope others raised the Nehmer Issue too.I was concerned that it all seemed to put limits onto Nehmer that were not there prior to IHD and the other new AO disabilities.

The actual regulation and narratives are 20 pages long.

Nehmer was one of the most important pieces of legislation that ever affected Vietnam Vets. I sure hope they have no intention of somehow trying to alter Nehmer.

Edited by Berta
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