Many Agent Orange veterans who come under the Nehmer COurt Order (which hopefully will include Blue Water AO vets when Haas is decided)
could expire during the pendency of their appeal.
This info is important-
while waiting for a confirmation on this from NVLSP I realised the info I need is right at their web site-as well as in the Nehmer info in the VBM.
An AO Nehmer award MUST be made to the survivors in order as within this reg.Accrued awards are NOT limited by Nehmer to 2 years retro. The survivor gets it all.
In other words, if an AO Nehmer vet dies with claim in progress ands then their spouse dies- as I interpret this reg- this is what happens:
4. Identifying Payees
We propose to state, in paragraph (f)(3), that VA shall make reasonable efforts to identify appropriate payees based on information contained in the veteran's claims file. We propose to state that, if further information is needed to determine whether an appropriate payee exists, or whether there is any person having precedence equal to or greater than a known survivor, VA will request such information from a known survivor or the class member's authorized representative if the claims file contains sufficient contact information. We also propose to state that, before releasing payment to a known survivor, VA will request information from the survivor concerning the possible existence of other survivors with equal or greater priority for payment, unless the circumstances clearly indicate that such a request is unnecessary. For example, if the claims file contained the name and address of a child of the deceased class member, VA would contact the child to inquire whether there is a surviving spouse or any other children of the class member in existence. [text deleted as inconsistent with Nehmer Orders]
We propose to state that, after making reasonable efforts to identify the appropriate payee(s), if VA releases the full amount of retroactive payments to a payee, VA generally may not thereafter pay any portion of such benefits to any other individual, unless VA is able to recover any payment previously released.
5. Prohibition On Duplicate Payments
We propose to state, in paragraph (f)(4), that, payment of benefits pursuant to this rule shall bar a later claim by any individual for payment of all or any part of such benefits as accrued benefits under 38 U.S.C. 5121 and 38 CFR 3.1000. The district court ordered VA to release all retroactive amounts due a class member at the time of death under the Nehmer stipulation and order. This would necessarily include amounts that otherwise would be payable as accrued benefits under 38 U.S.C. 5121. Accordingly, once payment has been made pursuant to the court's order, no retroactive benefits would remain for payment to any person as accrued benefits. Inasmuch as this rule applies only to retroactive benefits payable for a covered herbicide disease pursuant to the 1991 stipulation and order, it would not preclude a survivor's right to seek accrued benefits under section 5121 in the event a deceased class member was entitled at death to benefits for conditions other than a covered herbicide disease."
----------------------------------
I need to talk to Richard Spaturo (NVLSP)about this-when Haas comes through-as to how this would impact on BWV if Haas wins-
and I think the same way Nehmer impacts on any AO veteran-
but still am I correct-in anyones opinion out there-to interpret this to mean that
the VA must find the veteran's next of kin if the Nehmer vet dies with claim in progress that is ultimately awarded- first seek the surviving spouse and then anyone else, children of the vet etc-
or make payment to the Veterans Estate?
It seems to me (and Nehmer is certainly like no other case the VA ever had- that at least for AO veterans- the VA cannot draw their claims out to the point that they and even their spouse dies- and that Nehmer retro MUST be generated to the next in line survivor or go into the veteran's estate?
I am looking for a case like this- that shows VA paid Nehmer- to the Next of kin-such as the veterans adult child -but not to the spouse as the spouse was dead too .
Question
Berta
Many Agent Orange veterans who come under the Nehmer COurt Order (which hopefully will include Blue Water AO vets when Haas is decided)
could expire during the pendency of their appeal.
This info is important-
while waiting for a confirmation on this from NVLSP I realised the info I need is right at their web site-as well as in the Nehmer info in the VBM.
An AO Nehmer award MUST be made to the survivors in order as within this reg.Accrued awards are NOT limited by Nehmer to 2 years retro. The survivor gets it all.
http://www.nvlsp.org/Information/ArticleLi...20Beneficiaries
In other words, if an AO Nehmer vet dies with claim in progress ands then their spouse dies- as I interpret this reg- this is what happens:
4. Identifying Payees
We propose to state, in paragraph (f)(3), that VA shall make reasonable efforts to identify appropriate payees based on information contained in the veteran's claims file. We propose to state that, if further information is needed to determine whether an appropriate payee exists, or whether there is any person having precedence equal to or greater than a known survivor, VA will request such information from a known survivor or the class member's authorized representative if the claims file contains sufficient contact information. We also propose to state that, before releasing payment to a known survivor, VA will request information from the survivor concerning the possible existence of other survivors with equal or greater priority for payment, unless the circumstances clearly indicate that such a request is unnecessary. For example, if the claims file contained the name and address of a child of the deceased class member, VA would contact the child to inquire whether there is a surviving spouse or any other children of the class member in existence. [text deleted as inconsistent with Nehmer Orders]
We propose to state that, after making reasonable efforts to identify the appropriate payee(s), if VA releases the full amount of retroactive payments to a payee, VA generally may not thereafter pay any portion of such benefits to any other individual, unless VA is able to recover any payment previously released.
5. Prohibition On Duplicate Payments
We propose to state, in paragraph (f)(4), that, payment of benefits pursuant to this rule shall bar a later claim by any individual for payment of all or any part of such benefits as accrued benefits under 38 U.S.C. 5121 and 38 CFR 3.1000. The district court ordered VA to release all retroactive amounts due a class member at the time of death under the Nehmer stipulation and order. This would necessarily include amounts that otherwise would be payable as accrued benefits under 38 U.S.C. 5121. Accordingly, once payment has been made pursuant to the court's order, no retroactive benefits would remain for payment to any person as accrued benefits. Inasmuch as this rule applies only to retroactive benefits payable for a covered herbicide disease pursuant to the 1991 stipulation and order, it would not preclude a survivor's right to seek accrued benefits under section 5121 in the event a deceased class member was entitled at death to benefits for conditions other than a covered herbicide disease."
----------------------------------
I need to talk to Richard Spaturo (NVLSP)about this-when Haas comes through-as to how this would impact on BWV if Haas wins-
and I think the same way Nehmer impacts on any AO veteran-
but still am I correct-in anyones opinion out there-to interpret this to mean that
the VA must find the veteran's next of kin if the Nehmer vet dies with claim in progress that is ultimately awarded- first seek the surviving spouse and then anyone else, children of the vet etc-
or make payment to the Veterans Estate?
It seems to me (and Nehmer is certainly like no other case the VA ever had- that at least for AO veterans- the VA cannot draw their claims out to the point that they and even their spouse dies- and that Nehmer retro MUST be generated to the next in line survivor or go into the veteran's estate?
I am looking for a case like this- that shows VA paid Nehmer- to the Next of kin-such as the veterans adult child -but not to the spouse as the spouse was dead too .
Has anyone ever heard of that being done yet?
Link to comment
Share on other sites
Top Posters For This Question
3
2
1
Popular Days
Apr 11
5
Apr 24
1
Top Posters For This Question
mitchell3006 3 posts
Berta 2 posts
Mcafee 1 post
Popular Days
Apr 11 2008
5 posts
Apr 24 2008
1 post
5 answers to this question
Recommended Posts
Create an account or sign in to comment
You need to be a member in order to leave a comment
Create an account
Sign up for a new account in our community. It's easy!
Register a new accountSign in
Already have an account? Sign in here.
Sign In Now