diabetes Fast Letter 06-16-06

[Wings]

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DEPARTMENT OF VETERANS AFFAIRS

Veterans Benefits Administration

Washington, D.C. 20420

 

September 7, 2006

 

 

Director (00/21) In Reply Refer To: 211

All VA Regional Offices Fast Letter 06-16

 

 

SUBJ: Re-adjudication of CLL and Other Claims Under Nehmer

 

Background Information

 

The most recent order of the U.S. District Court for the Northern District of California in Nehmer v. U.S. Department of Veterans Affairs, C.A. No. C-86-6160 (TEH) (N.D. Cal.), requires VA to provide retroactive benefits to Nehmer class members (Vietnam veterans and their survivors) who filed claims for Chronic Lymphocytic Leukemia (CLL) before it was added to VA's presumptive list of diseases associated with exposure to Agent Orange. See enclosure 1 for guidance on the claims review process.

 

On April 28, 2006, the court issued a Clarification Order directing VA to re-adjudicate the estimated 1,500 class members currently in receipt of compensation for CLL. The court also ordered VA to mail a written outreach notice to each of the approximately 24,000 or more identified potential class members. The outreach notice informed each potential class member that if he or she filed a claim based on CLL prior to October 16, 2003 (or if he or she is an eligible survivor of such claimant), the individual has the right to request retroactive benefits. The outreach notice informed the potential class member of the eligibility requirements, where to send the specific written request for review, and VA’s right to recoup any retroactive benefits paid if there is an appellate reversal of the court’s Clarification Order. In addition, the outreach notice contained a toll free number for potential class members to call for assistance. The toll free number is 1-866-426-6638. See enclosure 2 for a copy of the outreach notice sent to potential claimants.

 

At the same time, under the court’s previous orders, VA must continue to provide retroactive benefits to Nehmer class members who filed claims for other diseases listed in 38 CFR § 3.309(e), using the special rules detailed in 38 CFR § 3.816. This requirement involves claims filed or denied during the period from September 25, 1985, to the date that VA issued the particular regulation establishing a presumption of service connection for the disease claimed.

 

 

Accountability

Regional offices (RO) must strictly comply with the instructions set forth in this letter and attachments. It is absolutely critical that Nehmer claims be handled expeditiously and correctly. VA is operating under very strict deadlines and failure to comply with instructions involving Nehmer claims could result in court-ordered sanctions against VA.

 

Regulatory Guidance

 

CLL is not currently included in VA’s regulation governing Nehmer claims, 38 CFR § 3.816 because it was added to the presumptive list after the expiration of the original Agent Orange Act. VA is appealing the court’s Clarification Order that expanded Nehmer to include CLL. At the present time, the court’s order in Nehmer supersedes the regulation’s exclusion of CLL. Therefore, 38 CFR § 3.816 will apply to the adjudication of CLL claims from Nehmer class members until further notice.

 

Centralized Location for Processing CLL Nehmer Claims

 

Due to the priority and complexity of CLL Nehmer claims, this workload is centralized at the Philadelphia Resource Center (PRC). The PRC will prepare the necessary rating, award actions, and notice of decision including development actions based on its review.

 

Central Office (CO) will provide each regional office with an electronic file containing a spreadsheet identifying that office’s share of the CLL Nehmer claims files to be temporarily transferred to the PRC. The file will be WinZip compressed, encrypted, and password protected. To open the file contact Ersie Farber at (202) 273-7268 or Sandie Harms-Taylor at (202) 273-8725 or via e-mail upon receipt of the electronic message. A second message will then be sent to the regional office containing the required password.

 

NOTE: All inquiries received by regional offices in response to the outreach notice should be referred to CO as noted in the outreach letter.

 

Regional Office Action(s) for Temporary Transfer of the Claims Files to the PRC

 

Regional offices will expedite the request for temporary transfer of the claims files to the PRC by the established deadline noted in the electronic message. The claims files will be maintained in the PRC for approximately two to three months or until CO has authorized return of the claims file to the regional office.

 

If the claims file is not found, immediately initiate search procedures for the missing claims file and forward the red rope, death (NOD), or rebuilt claims file upon receipt. It is important that you make every effort possible to locate the original claims file.

 

If the claims file is located at your regional office but is charged out and/or at the BVA, expedite search/return of the claims file and send to the PRC.

 

If the file has been retired to the retirement centers (Records Management Center/Federal Records Center), request the claims file and forward to the PRC.

 

If the claims file has been permanently transferred to another regional office, update the spreadsheet and notify Ersie Farber or Sandie Harms-Taylor by phone or e-mail [do NOT request the other regional office to transfer the file].

 

In the remarks section of the transfer slip, annotate "Nehmer CLL." It is important that we keep these claims files separate from other requests sent to the PRC. Refer to VBA Letter 20-06-44 dated July 3, 2006, for the specific requirements for shipping claims files. You must adhere to these shipping instructions.

 

Where to Ship the Claims Files

 

Use the following address for shipment of claims files:

 

Department of Veterans Affairs

Resource Center (21RC)

ATTN: Carl H. Dean

5000 Wissahickon Ave

Philadelphia, PA 19144

 

The PRC contacts are Carl Dean at 215-842-2000, extension 2516 or Gloria Smith at 215-842-2000, extension 2660.

 

 

 

Regional Office Processing of Nehmer Claims for Diseases Other Than CLL

 

VA must continue to provide retroactive benefits to Nehmer class members who filed claims for other diseases listed in 38 CFR § 3.309(e) in the manner provided in 38 CFR § 3.816. These claims will be processed by each RO based on plaintiffs’ counsel’s submission of evidence previously requested from the Nehmer class member. CO will send notice of the specific information and evidence provided by plaintiffs’ counsel by electronic mail to the RO for immediate processing.

 

Date of Claim and End Product Credit

 

CLL Nehmer Reviews

The PRC will control the estimated 1,500 CLL Nehmer reviews under end product 685 using the date of receipt of the claims file from the RO as the date of claim. The PRC will clear the end product on completion of the review.

 

The PRC will control claims resulting from the outreach effort under both a 685 end product and the appropriate end product for the type of claim reviewed (i.e. 115, 025 145, 160) using the date of claim as the date of receipt of the claims file from the RO.

 

Nehmer Claims for Diseases Other Than CLL

Nehmer reviews (submission of requested evidence based on prior reviews) conducted by the regional office will establish the date of claim as the date of receipt of the claim and/or requested information. The RO will establish the end product appropriate for the type of claim reviewed (i.e. 115, 025, 145, 160, etc.).

 

Medical Records and Examinations

To properly adjudicate a claim for service connection, obtain and review relevant medical treatment records and, where appropriate, order VA examinations. Specifically, note the following:

·        Request and review VA and private medical treatment records relating to the claimed disability.

·        Request a VA examination to evaluate the claimed disability and/or any complications related to the medical disability when it is necessary to decide the claim, (as, for instance, diabetes claims). Examination requests should list any secondary conditions noted in the initial review of the claims file.

 

·        Work with your local VA medical centers to determine the quickest way to obtain pertinent evidence, including a VA examination or a medical opinion.

 

Effective Dates

Under Nehmer, you must award the earliest possible effective date in accordance with the instructions provided in 38 CFR § 3.816.

Notification Requirements

Regional Office and PRC

You must send a notice of decision, including appellate rights, to each class member who receives a review under Nehmer. See enclosure three (3) for the notice of decision letter template.

PRC Only

The notice of decision from the PRC concerning an earlier effective date assigned under Nehmer for CLL claims should also 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 Administration. Payment for any period before October 16, 2003, 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 retroactive amount has been recovered in full.”

Prepare a memorandum for record purposes if you determine that the listed claim number or name is invalid, (i.e., the listed information cannot be associated with any claims file or any Vietnam veteran who suffers from CLL). The memorandum should describe your attempts to identify the veteran using the available information, and the basis for any conclusions that you reach concerning the erroneous listing of the veteran’s claim number. A notice of decision letter is not required in this instance.

 

If a rating decision is not required (i.e., you have already assigned the correct effective date and level of disability), prepare a memorandum for record purposes, and notice of decision to claimant. See enclosure 4 for the memorandum for record purposes template.

 

Whom To Contact for Help

 

If you have questions or need additional information, you should e-mail your inquiry to the Q&A mailbox at VAVBAWAS/CO/NEHMER. Also, enclosure 5 provides questions and answers concerning Nehmer for use by regional office public contact units.

 

 

 

 

/s/

Renée L. Szybala

Director

Compensation & Pension Service

 

Enclosures

 

Review of Claims for Possible Retroactive Benefits Under Nehmer Order

Outreach Notice

Notification Template

Memorandum for Record Purposes Template

     

5.  Questions and Answers Concerning Nehmer for use by Regional Office Public Contact Units

 

 

 

 

ENCLOSURE 1: Review of Claims for Possible Retroactive Benefits Under Nehmer Order

 

 

1. History of Nehmer Case: Because we are only providing guidance here on how to proceed in the review of claims affected by the Nehmer court’s April 28, 2006, 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 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.

 

2. Background: On December 12, 2000, a district court issued an order in the class action Nehmer v. United States Veterans Administration, Civil Action No. C86-6160 TEH (N.D. Cal.), that required 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 associated with Herbicide exposure under 38 C.F.R. §§ 3.307(a)(6) and 3.309(e). As defined by the district court, the “Nehmer class” consists of “all current or former service members (or their survivors) who are eligible to apply for benefits based on dioxin exposure or who have already applied and been denied claims for benefits based on dioxin exposure.” Nehmer v. United States Veterans’ Administration, 712 F. Supp. 1404, 1409 (N.D. Cal. 1989). The district court later stated that its orders require VA to pay full retroactive benefits to class members, to the survivors of deceased class members, or, if there are no survivors, to the deceased class members' estates. The regulation that governs adjudication of Nehmer claims is 38 C.F.R. § 3.816. By order dated December 1, 2005, the district court extended its holding to CLL claims. The district court’s order of April 28, 2006, among other things, required VA to begin processing those claims. To assist in the prompt processing of these claims under Nehmer, we provide the following guidance with respect to applicable legal standards.

 

3. General Effective-Date Rules : Pursuant to the Nehmer court orders as codified in 38 C.F.R. § 3.816, the rules governing the effective date of compensation and DIC awards based on CLL presumptively due to herbicide exposure are the same as the rules for other presumptive herbicide conditions. The fact that some CLL claims may have been filed and/or denied at a time when, under valid VA regulations, CLL was not considered associated with herbicide exposure is irrelevant. The following rules govern effective dates for these claims:

 

A.     If a Nehmer class member’s claim for compensation for CLL (or any disease presumptively due to herbicide exposure) or claim for DIC based on death due to CLL was denied between September 25, 1985, and October 16, 2003, and a later claim for the same benefit was granted after October 16, 2003, 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. 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 claims under either (A) or (B), above, the rules in 38 U.S.C. § 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. § 5110(g) and 38 C.F.R. § 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 claims. The district court’s order precludes VA from applying that general rule.

 

4.      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 class member assert in his/her claim 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 1994, expressly alleging that his CLL began while on active duty following his service in Vietnam. VA denied the claim in 1995. The veteran reopened the claim in 2001, and service connection was granted based on VA’s herbicide regulations. On these facts, the effective date must relate back to the 1994 claim, even though the veteran alleged a different basis for service connection.

 

5.      Prior Claim Must Have Involved CLL: 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 CLL, 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 leukemia. In developing that claim, VA obtained medical records indicating that the veteran was diagnosed with CLL in February 1987. On these facts, it would be reasonable to treat the January 1987 claim as a claim for service connection of CLL. Under Nehmer, benefits may be paid retroactive to the date of that claim or the date the disability arose, whichever is later, as determined by the facts of the case.

 

Example 2: In 1995, a veteran claimed compensation for leukemia. Medical records obtained by VA indicate the veteran did not have CLL. In 2001, the veteran claimed compensation for CLL, submitting evidence that CLL was diagnosed in 1996. On these facts, the 1995 claim was not a claim for service connection of CLL, as neither the application nor the evidence of record suggested the presence of CLL.

 

Because DIC claimants generally are not required to identify specific diseases in their applications, the absence of specific reference to CLL in a prior DIC application will not preclude assignment of a retroactive effective date under Nehmer, provided the evidence establishes that CLL caused the veteran’s death.

 

The Nehmer Final Stipulation & Order provides one exception to the claim requirement. A modification to 38 C.F.R. § 3.816©(1) will clarify that the scope of the provision includes those veterans who, prior to May 3, 1989, were diagnosed with herbicide-related conditions and either received a rating decision that addressed (coded as non-service-connected) the unclaimed herbicide-related condition or received a rating decision that failed to address the unclaimed condition (failed to code the condition). The Nehmer court's May 3, 1989 order voided these two types of "decisions" and you must apply Nehmer in appropriate cases.

 

Example 3: In January 1987 a veteran claimed compensation for a back condition. In developing that claim, VA obtained a March 1987 diagnosis of CLL. In a 1988 rating decision service connecting the back condition, VA addressed the CLL diagnosis and coded the disability as non-service-connected. Because that pre-May 3, 1989, decision addressed CLL, it is a decision that was voided by the Nehmer court's May 3, 1989, order and VA must award compensation retroactive to the later of either the date of the claim that prompted the voided decision or the date the disability arose. This rule would also apply if VA had obtained the CLL diagnosis but failed to address the condition in the 1988 rating decision.

 

6.      Informal Claims: Generally, under 38 U.S.C. § 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 CLL 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. § 3.155. The following principles should be considered.

 

(A) Informal Claims to Reopen: If a prior formal claim for compensation for CLL or for DIC is of record, an informal claim to reopen may be accepted. See 38 C.F.R. § 3.155©.

 

Example: A veteran filed a formal claim for service connection of CLL in 1979. VA denied the claim in 1980. In 1986, the veteran submitted a letter stating “please consider service connection for CLL.” 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. § 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 retroactively 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 filed a statement in 1995 saying, “I disagree with your decision denying pension. I also should be paid compensation for CLL.” VA did not forward the claimant an application form and did not adjudicate any claim for service connection of CLL. On these facts, the 1995 statement may be accepted as an informal claim for CLL. 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.

 

© Medical Records: The submission of medical records reflecting treatment for CLL 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.

 

7.      Death Pension Claims Must Be Treated as DIC Claims: Under 38 U.S.C. § 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. § 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 CLL. 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.

 

8.                  Live Pension Claims May Be Treated as Compensation Claims: Under 38 C.F.R. § 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 a case warrant treating a pension claim as a claim for compensation for CLL.

 

9.                  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. § 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.

 

10.             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 CLL 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 CLL, 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 referred to the Q&A mailbox identified at the end of this enclosure.

 

11.             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: The district court has 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 survivors or, if there are no survivors, to the class member's estate. Significantly, the court held that payment of such benefits is not governed by 38 U.S.C. § 5121(a), which does not provide for payment of retroactive benefits to estates. 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 survivors or estate of a deceased class member. 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:

 

· the class member’s spouse;

· the class member’s child or children (if more than one child exists, payment of the retroactive benefits owed shall be divided into equal shares, and accompanied by an explanation of the division; this includes all children, regardless of age or marital status);

· the class member’s parents (if both parents are alive, half the retroactive benefits owed shall be paid to each parent, and accompanied by an explanation of the division);

· the class member’s estate.

 

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.

 

© 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 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 must prepare a memorandum stating the reasons why it was unable to complete payment of retroactive Nehmer benefits. Additionally, the regional office should notify Central Office 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 refer the matter to Central Office through the Q&A mailbox identified at the end of this enclosure.

 

12.             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.)

 

13.             Questions: Questions regarding the foregoing, or any matters arising in the review of individual Nehmer cases may be referred to the Q&A mailbox at VAVBAWAS/CO/NEHMER.

 

ENCLOSURE 2: Outreach Notice

 

On April 28, 2006, the U.S. District Court for the Northern District of California (Nehmer v. Dept of Veterans Affairs, No. C-86-6160 (TEH) held that the provisions of the Nehmer class-action suit apply to disability or death claims based on chronic lymphocytic leukemia (CLL). In compliance with this court order, if you meet the eligibility requirements and follow the procedures described below, VA will determine whether you are entitled to retroactive benefits.

What is Chronic Lymphocytic Leukemia?

Chronic lymphocytic leukemia (also called CLL) is a slow progressing cancer of the blood in which too many white blood cells (lymphocytes) are produced by the bone marrow and by organs of the lymph system. This diagnosis does not include acute lymphocytic leukemia, acute or chronic myeloid (or granulocytic) leukemia, or the numerous subtypes of these diseases.

Eligibility Requirements

If you are a veteran or survivor of a deceased veteran and meet the below eligibility requirements, you may request a review under this court order for entitlement to retroactive service-connected disability or death compensation. Additionally, if you are a survivor (surviving spouse, child, parent, or heir) of such veteran or survivor, you may request a review for benefits based on a prior claim by the veteran, you, or another eligible survivor. The evidence of record must show the following:

o       the veteran had a diagnosis of chronic lymphocytic leukemia,

o       the veteran served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, and

o       a claim for disability or death benefits due to CLL was filed or denied between September 25, 1985, and October 16, 2003.

What Do We Need From You?

If you wish to file a claim for entitlement to retroactive benefits based on the above-mentioned eligibility requirements, you must submit a written request. For your convenience, we have enclosed VA form 21-4138, “Statement In Support of Claim” for your use. A review of the claims file will be conducted only if a specific request is received.

Where to Send The Information

Send the information to the address shown below. Please put the veteran’s full name and VA file number on the correspondence or information submitted.

Department of Veterans Affairs

Compensation and Pension Service (211A)

ATTN: EFCCLL

810 Vermont Ave NW

Washington, DC 20420

Additional Information

Please note that any payment made as a result of the April 28, 2006 order, 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.

Who To Contact If You Have Questions or Need Assistance

If you have any questions or need assistance with this claim, please call us at 1866-426-6638 [between 8:30 a.m. and 4:00 p.m. EST Monday through Friday.]

 

If you call, please refer to the VA file number shown above. If you write to us, put your full name and VA file number on the letter. Please send all correspondence to the address shown in the above paragraph. You can visit our web site at www.va.gov for more information about veterans' benefits.

 

[Listing of Service Organization/Representative]

A copy of this letter was sent to the service organization or individual you appointed as your representative. If you have questions or need assistance completing your claim you can also contact them.

 

[if No Listing of Service Organization/Representative]

We have no record of you[ ] appointing a service organization or representative to assist you with your claim. You can contact us for a listing of recognized veterans service organizations and/or representatives. Veterans service organizations that are recognized or approved to provide services to the veteran community can also help you with questions, completion of claim forms, etc.

 

 

 

Sincerely yours,

 

Director

Compensation & Pension Service

 

Enclosure: VA Form 21-4138

ENCLOSURE 3: Notification Template

 

The most recent order of the U.S. District Court for the Northern District of California in Nehmer v. U.S. Department of Veterans Affairs, C.A. No. C-86-6160 (TEH) (N.D. Cal.), requires VA to provide retroactive benefits to Nehmer class members (Vietnam veterans and their survivors) who filed claims for Chronic Lymphocytic Leukemia (CLL) before it was added to VA's presumptive list of diseases associated with exposure to Agent Orange. On April 28, 2006, the court issued a Clarification Order directing VA to re-adjudicate the estimated 1,500 class members currently in receipt of compensation for CLL.

 

We conducted a special review of your file. Based on the review, we made a decision on your claim for service-connected compensation. In performing this review, we considered all claims and medical evidence in your claims folder.

 

[Enter a summary of the headings included in the body of the letter, e.g., This letter tells you what we decided. We have also included information about what to do if you disagree with our decision, and who to contact if you have questions or need assistance.]

 

A list of the headings to be included in the letter are shown below, however, this list is not all inclusive:

 

What Is Your Entitlement Amount and Payment Start Date? [Optional heading to be used if payment is involved]

 

When Can You Expect Payment? [Optional heading to be used if payment is involved]

 

Why Have We Withheld Benefits? [Optional heading to be used if retired pay/SBP is involved]

 

What Did We Decide? [if a copy of the memorandum is enclosed in the notice letter, remove the signature block.]

 

How Did We Make Our Decision? [if a copy of the memorandum is enclosed in the notice letter, remove the signature block.]

 

What Evidence Did We Use To Decide Your Claim? [if a copy of the memorandum is enclosed in the notice letter, remove signature block.]

Are You Entitled to Additional Benefits? [Optional heading]

 

What You Should Do if You Disagree With Our Decision.

If you do not agree with our decision, you should write and tell us why. You have one year from the date of this letter to appeal the decision. The enclosed VA Form 4107, "Your Rights to Appeal Our Decision," explains your right to appeal.

 

Do you Have Questions Or Need Assistance?

 

If you have any questions or need assistance with this claim, please call us at 18008271000. If you use a Telecommunications Device for the Deaf (TDD), the number is 18008294833.

 

If you call, please refer to your VA file number 123-45-6789. If you write to us, put your full name and VA file number on the letter. Please send all correspondence to the address at the top of this letter. You can visit our web site at www.va.gov for more information about veterans' benefits.

 

We have no record of your appointing a service organization or representative to assist you with your claim. You can contact us for a listing of the recognized veterans' service organizations and/or representatives. Veterans' service organizations, which are recognized or approved to provide services to the veteran community, can also help you with any questions.

 

 

 

 

ENCLOSURE 4: Memorandum for Record Purposes Template

 

 

SUBJ: Review Under Nehmer

 

 

Issue(s): Clearly state all issues of entitlement identified by the claimant or inferred based on the facts or circumstances of the claim. [List the disability/disabilities and the current assigned evaluation(s). Also, specify any complications or other recognized herbicide-related conditions and the current assigned evaluation(s).] See M21-1, Part VI, 3.09.

 

Evidence: Cite all evidence considered in arriving at the decision. See M21-1, part VI, 3.11.

 

Decision: Clearly and concisely state the decision made on each issue or inferred issue. See M21-1, part VI, 3.12.

 

Reasons for Decision: Provide a detailed chronological summary of the procedural history of the case outlining prior decision(s), and the reasons and bases for them. The summary should support the conclusions with the necessary level of analysis and explanation. See M21-1, Part VI, 3.13. Provide the reasons for any denial.

 

 

ENCLOSURE 5: Questions and Answers Concerning Nehmer for use by Regional Office Public Contact Units.

 

 

 

Question 1:

I got a letter that talks about Nehmer, what is Nehmer?

 

Answer:

Nehmer refers to a class-action lawsuit against VA brought by Vietnam veterans and their survivors. They claimed that VA had improperly denied their claims for service connection for disability or death benefits caused by exposure to the herbicide Agent Orange in service. The United States District Court for the Northern District of California periodically orders readjudication of claims under Nehmer.

 

 

Question 2:

Why am I getting this letter now?

 

Answer:

You may have filed a claim for service-connected disability or death benefits for Chronic Lymphocytic Leukemia or CLL some time ago and the court has mandated that VA conduct a review of your claim to determine if you are entitled to retroactive benefits based on the Nehmer court order.

Question 3:

What are the eligibility requirements for this VA review ?

Answer:

If you are a veteran or the survivor of a deceased veteran, you may request a review under this court order for entitlement to retroactive service-connected disability or death compensation. Also, if you are a survivor (surviving spouse, child, parent, or heir) of such veteran or survivor, you may request a review for benefits based on a prior claim by the veteran, you, or another eligible survivor. The evidence of record must show the following:

o       the veteran had a diagnosis of Chronic Lymphocytic Leukemia (CLL),

o       the veteran served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, and

o       a claim for disability or death benefits due to CLL was filed or denied between September 25, 1985, and October 16, 2003.

Question 4:

How do I file a claim to get this review?

 

Answer:

If you wish to file a claim today, we can take your request for review for retroactive benefits based on the eligibility requirements as mentioned in the letter sent to you. I will complete a VA Form 119, Report of Contact. I will need some additional information: your full name, complete address to include zip code, phone number starting with the area code, and your relationship to the veteran (if other than the veteran).

 

OR

 

You may submit a written request for retroactive benefits based on the eligibility requirements as mentioned in the letter sent to you. For your convenience, we can send you VA form 21-4138, “Statement In Support of Claim” for your use. A specific request by you for the claimed benefits must be filed and sent to:

 

Department of Veterans Affairs

Compensation and Pension Service (211A)

ATTN: EFCCLL

810 Vermont Ave NW

Washington, DC 20420

 

 

Question 5:

What benefits am I eligible for?

 

Answer:

You may be eligible for service-connected disability compensation or death benefits based on exposure to the herbicide Agent Orange in service.

 

 

Question 6:

If I file a claim, how long do I have to wait to get the benefits that I applied for?

 

Answer:

These claims are being reviewed on a priority basis. The time it takes to process each claim will vary based on its complexity, and how much must be done to complete the claim.

Question 7:

Will I get any money based on this review?

 

Answer:

Whether the veteran or the veteran’s heirs will receive money varies depending on the individual circumstances of each claim. We will conduct an actual review of the veteran’s VA claim file to make the determination for each case and advise you accordingly.

 

 

Question 8:

How much can I expect to receive?

 

Answer:

The amount of benefit varies based on the date the claim was filed, the number of dependents, income of parents (if parents are the recipient of benefits), number of surviving children, receipt of military retired pay, and other factors that may apply to each individual case.

 

 

Question 9:

What is the effective date of my claim?

 

Answer:

VA will have to conduct an actual review of the claim and its history to determine the payment effective date in each case. Once VA conducts its review and makes a decision, we will notify you of the outcome.

 

 

Question 10:

I was married to the deceased veteran who was diagnosed with CLL prior to his death, and I remarried after his death. Am I entitled to any benefits?

 

Answer:

You may be entitled to benefits. For VA to determine your eligibility you have to file a claim and the VA will conduct a review. Once we reach a decision on your claim, we will notify you of the decision.

 

Question 11:

What if the claim is for another disability that was denied, but I want to claim CLL now because there is a current diagnosis?

 

Answer:

If the claim for CLL is not related to a previous claim, you can submit your claim to your local regional office, or contact 1866-426-6638.

 

Question 12:

If the veteran is deceased, may his parents, spouse or children be entitled to receive any benefits now?

 

Answer:

Maybe. The entire amount of retroactive benefits may be paid to survivors or the estate of the veteran if the claim meets the requirements mentioned in our letter to you. VA is required to pay the entire amount of such benefits to which the veteran would have been entitled.

 

VA will make payment to the class member’s survivors in this order:

·                                Surviving spouse

·                                Children (child or children (if more than one child exists

payment of benefits owed shall be divided into equal shares, and accompanied by an explanation of the division; this includes all children, regardless of age or marital status)

·                                Parents (if both parents are alive, benefits will be divided

equally between the parents

·                                If no survivors – the member’s estate

 

Question 13:

Where do I send the request?

 

Answer:

Send the request to the address shown below. Please put the veteran’s full name and VA file number on the correspondence or information submitted:

 

Department of Veterans Affairs

Compensation and Pension Service (211A)

ATTN: EFCCLL

810 Vermont Ave NW

Washington, DC 20420.

 

 

Question 15:

Where can I get assistance to help me with this claim?

 

Answer:

VA is dedicated to assisting veterans and their families with these claims. You can visit the VA regional office nearest your residence or you can also request assistance from a recognized veterans service organization. If you need assistance in contacting a veterans’ service organization, we can provide you with a listing.

 

[Pete53]

On first read it looks like VA is doing the right thing. Will be interesting to see how the VARO's adhere to these instructions.