diabetes The Nehmer Decision

[Berta]

Jangrin asked some great questions here today re: AO claims and it does bear repeating- the Nehmer decision altered retro regs for thousands of AO vets.

The entire Nehmer Court Order and explanation of the Retroactive awards and Stipulation are at the NVLSP web site.

Here are a few examples from the VBM:

Incountry Vietnam Vet files claims for an ulcer due to service on April 1, 1989.

VA denies and in the decision lists the veteran's diabetes as NSC diabetes.

Vet then files claim on Oct 23, 2001 for the diabetes ,as he learns that the VA has added DMII to the AO list pf presumptives.

VA awards diabetes claim as due to service. The correct retro date for his claim is April 1, 1989.

Incountry Vietnam vet with NHL to a degree of 10% disabling files a claim on Jan 1, 1986. VA denies.

NHL goes on the presumptive list in 1990.

Vet files a second claim for SC of his NHL in 1992. The vets proper retroactive EED is January 1, 1986.

Widow files DIC claim for lung cancer death of incountry Vietnam vet on June 6,1983 .The veteran died on Sept 3, 1982. VA denies, then widow goes to the BVA and the BVA denies in 1985.

Lung cancer goes on the presumptive list in 1994.

Widow files another claim for DIC due to Lung cancer death in 1994. The VA grants the claim. The widow's retro DIC goes back to Sept 3, 1982-the date of the veteran's death.

There are three categories of AO vets and widows-

these above are category one-

It pays to read the Nehmer retroactive information at NVLSP to see what category a veteran falls into.

The fact that a veteran had a denial in a past decision of what then became an AO condition is the most prevalent factor in these EED awards.

But unfortunately denials prior to 1985 dont appear to fall within these regs.

Other claims depend on when the claim was filed in relationship to the publication of the specidfic disability regs.

Example: Vietnam vet has a AO disability of cancer of the larynx.

This goes on the AO list on June 9, 1994.

The vets first claim on this is filed after the disability is deemed presumptive, and the claim is filed on Dec 1, 1994.

This veteran's EED is June 9, 1994 (the date of the regs)

This is why a AO exposed vet should not hesitate to put down every condition they have and state that it is possibly due to Agent Orange as well as to any other potential inservice reason.

The VA will deny if it is not on the presumptive list and list it as NSC, but if it does become presumptive in the future -the veteran has already established the earliest effective date for the award.

Most AO diseases become disabling to a degree of ten percent or more when or before a claim is filed.

The VA will try to determine that the disability was at least ten percent disabling at time of initial claim if this is not already supported by medical evidence.