Ao Nehmer Vets

[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."

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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?

[mitchell3006]

Berta,

I read Nehmer the same way you do. We discussed it a little while back and I have been reading all I could on it since. I have a claim in for my mother as a surviving spouse now. I spoke to one of the ROs in the Jackson Office and she said that mother should be eligible for big back check and that Nehmer did in fact apply to surviving dependants i.e. me, my children if I died. She said that VA had responsibility to track down survivors after veteran's death and to continue down line if spouse died. Unlike other claims that die with veteran, Nehmer claims are supposed to be paid to someone in the line of inheritance.

By the way, just a plug for the folks that have called me from Jackson VARO, they have been the nicest and most helpful. My claim is still pending but two different ROs have called to clarify various sections of claim and ongoing appeal and have surprised me with their professionalism. Both have discussed that they have several new trainees in office. Maybe this is a sign of improvement.

Mark

[Mcafee]

Quick Question Does One need to notify VARO or fill an application in reference to this ? thank you

[mitchell3006]

I sent in a letter asking for a review of the file and that sufficed to get it started. It should be just a check and review of records. I don't see any reason that any evidence would have to be sent in in my mother's case. She already gets DIC just the eligibility date is wrong.

Mark

[Berta]

Mark-I sure appreciate your fast reply!

I go over my personal stuff every year for my will,insurance policies, and all that stuff and reminded my daughter where all this stuff is-and she brought up how unfair it is when the VA takes so long to make awards and when a spouse could die , the family of the vet gets nothing. We know a vet without a spouse looking at large retro- but if he dies -that $ stays right with the US Treas Dept- and I realised that my AO claim under Nehmer would potentially make her-as you have confirmed-the class action member who would get the retro in my case.

Besides -the mprning of the day Rod died he again said to me he felt the VA was killing him (they did FTCA/1151 awards)and he was dead a few hours later but added he was afraid they would kill me too before I ever succeeded on DIC.He insisted that I make sure I get a proper award from them in my lifetime since he never would live long enough to see his.

Although I did get awards- my daughter-home on Mil leave-is the one who literally nagged me to re-open the death claim- and she was right-

due to her insistence Rod might finally get Peace with Honor for his proper AO award and my daughter in some way

will sure reap the benefits of her absolute insistenece (took her 5 months to convince me)that the VA's wrongful death award failed to consider he was an AO vet and AO caused his death.

And I have 4 IMOs to support that-

Mark-was your dad a Blue Water Navy vet or did he serve directly incountry?

[mitchell3006]

Berta,

So sorry for the delay. I get a compliment for fast reply then miss the return post for two weeks. Please forgive me. Dad was in country helo pilot with 1st Cav.