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AO Survivors -info on Nehmer


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  • HadIt.com Elder

http://community.hadit.com/topic/69387-poopsy-woopsy/

This came up in the above thread and although the info on Nehmer is a signifiant amount here in the AO forum, this had to be clarified as it could be hard to find under a search.

Nehmer class action members who are the survivors of a AO veteran, under the 2010 Nehmer Court Order (which  service connects IHD, Hairy Cell B, and Parkinsons in all incountry Vietnam veterans, do not have to file for substitution or accrued benefits when they file their AO DIC claim.

All other surviving spouses of vets who had claims pending at death must file as substituted claimant or for accrued benefits within one year of the veteran's death. Accrued benefits are defined in detail here under a search.

I took this definition from a BVA case, which made it easier for me to find:

This is the regulation regarding Nehmer claims, which is defined as a retroactive payment, not an accrued payment::

 

“I.  Retroactive Benefits

 

The appellant contends that the Veteran's heart disease was due to Agent Orange exposure and, therefore,  retroactive benefits are warranted pursuant to the Nehmer decision. 

 

This is not a claim for accrued benefits.  The RO, on its own initiative, sent the appellant a letter in March 2011 explaining that it was going to review the matter pursuant to Nehmer v. Veterans Administration of the Gov't of the U.S., 284 F. 3d 1158 (9th Cir. 2002).  The provisions of 38 U.S.C. 5121(c) and §3.1000(c), which require survivors to file claims for accrued benefits, do not apply to payments under 38 C.F.R. § 3.816, regarding awards under the Nehmer Court Orders for disability or death caused by a condition presumptively associated with herbicide exposure.  See 38 C.F.R. § 3.816(f)(2) (2015).

 

 

1) Applicable Law

 

Retroactive benefits may be paid under Nehmer if a Nehmer class member is entitled to disability compensation for a covered herbicide disease.  See 38 C.F.R. § 3.816. 

 

Nehmer class member means: (i) a Vietnam veteran who has a covered herbicide disease; or (ii) a surviving spouse, child, or parent of a deceased Vietnam veteran who died from a covered herbicide disease.  38 C.F.R. § 3.816(b)(1).  If the class member's claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose, except as otherwise provided in paragraph (c)(3) of this section.  38 C.F.R. § 3.816(c)(2). 

 

The covered herbicide diseases are listed in 38 C.F.R. § 3.309(e).  See 38 C.F.R. § 3.816(b)(2).  This list includes ischemic heart disease, which was added to the list of covered herbicide diseases effective from August 31, 2010.  See 38 C.F.R. § 3.309(e); 75 Fed. Reg. 53202 (Aug. 31, 2010). “

https://www.va.gov/vetapp16/files2/1609942.txt

(this BVA claim for DIC was denied but still held the exact regulation regarding Retroactive Benefits which made it far easier for survivors to attain than trying to claim accrued if over a year had passed after the veteran's death)

I recall here over the past 2 decades that we never dreamed the VA would ever compensate IHD for AO exposure.

Certainly many and probably ALL  widows with a AO IHD death claim never could have filed for accrued benefits anyhow for AO IHD because there was no regulation for AO IHD prior to August 2010.

The above claim was denied thus:

"FINDINGS OF FACT 1. The Veteran did not have service in the Republic of Vietnam and is, therefore, not a Nehmer class member. 2. The current effective date of November 1, 2008, represents the first day of the month in which the Veteran's death occurred where the appellant's claim was received within one year after the date of his death."

But it did contain a good explanation of Retro payments instead of "accrued" benefits, that Nehmer Class action members, as survivors, could expect even if an accrued claim had never been filed for AO IHD. 

And just to add....many of us Nehmer Class action survivors were also Footnote One claimants.

I have explained Footnote One here Many times since 2010 and added Rick Spataro's emails to me on it ( NVLSP Head AO lawyer) and all of that that is easily searchable here ( I hope) and was the most important and  unique aspect of Nehmer 2010.

Agent Orange is still harming and killing our nation's veterans. But only those vets or their survivors as defined in the above citation from the BVA and in the  the Nehmer Court Orders are Nehmer class action members.

 

 

 

 

 

 

Edited by Berta
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Fleming Veterans Law Judge Board of Veterans’ Appeals https://www.va.gov/vetapp20/files4/20029600.txt But in this case the BVA stated: "The Board previously denied this claim in a February 2019 decision finding the most persuasive evidence of record did not support a nexus between hypertension and service or his PTSD.   With regard to Agent Orange exposure, the Board noted recent NAS findings (the most recent Agent Orange update) indicative of “limited or suggestive” association between hypertension and herbicide exposure, but found such association was not conclusive in this Veteran’s specific case.  Rather, according to a June 2018 VA examiner’s opinion and the examiner’s research into the relevant medical literature, a connection between Agent Orange exposure and the development of hypertension would only be possible within individuals in the Army Chemical Corps whom directly handled herbicides. 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Fleming Veterans Law Judge Board of Veterans’ Appeals https://www.va.gov/vetapp20/files4/20029600.txt But in this case the BVA stated: "The Board previously denied this claim in a February 2019 decision finding the most persuasive evidence of record did not support a nexus between hypertension and service or his PTSD.   With regard to Agent Orange exposure, the Board noted recent NAS findings (the most recent Agent Orange update) indicative of “limited or suggestive” association between hypertension and herbicide exposure, but found such association was not conclusive in this Veteran’s specific case.  Rather, according to a June 2018 VA examiner’s opinion and the examiner’s research into the relevant medical literature, a connection between Agent Orange exposure and the development of hypertension would only be possible within individuals in the Army Chemical Corps whom directly handled herbicides. 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    • By Berta
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      “The VA’s refusal to correct the wrong it has perpetrated since 2002 means that Blue Water Vietnam veterans and their survivors will continue to be deprived of the benefits to which they are entitled under the Consent Decree.  Some of these veterans have already waited far too long for their country to do right by them.  For many of these veterans and their survivors, the overdue compensation could be life-changing,” said National Veterans Legal Services Program Executive Director Bart Stichman.
      This is the fourth time that NVLSP has filed a motion for enforcement to obtain compliance with the 1991 Consent Decree.  The District Court granted all three prior enforcement motions.  As a result of these successful enforcement actions, NVLSP identified and the VA paid more than 5,100 Vietnam veterans and their survivors an aggregate of over $91 million in retroactive benefits.
      The Blue Water Navy Vietnam Veterans Act of 2019 (BWN Act) codified the presumption of herbicide exposure for Blue Water Vietnam veterans.  However, the BWN Act does not automatically require the VA to assess if any Blue Water Vietnam veteran or survivor is eligible for retroactive compensation.  The BWN Act requirement to pay retroactive compensation is triggered only if a Blue Water Vietnam veteran affirmatively files a claim after January 1, 2020 and the veteran specifically identifies the Agent-Orange related disease that was the subject of the earlier claim.
      The BWN Act does not completely correspond to the Nehmer Consent Decree.  Some Blue Water Vietnam veterans and their survivors may be eligible for retroactive compensation under the Consent Decree but not eligible under the BWN Act and vice versa.  As a result, the House Report on the BWN Act states that “Nothing in [the BWN Act] intends to limit the rights of Nehmer class members who seek relief for benefits under the Nehmer Consent Decree.”
      The article goes on to state the history of Nehmer. I certainly hope and pray that  NVLSP is again successful in their motion to force compliance from the VA with the Nehmer Court Order.
      This is another utter disgrace that Blue Water Navy veterans have to put up with, until VA is forced ,legally, to do the Right thing.
       
       
       
       
       
       
    • By Berta
      This is the first time VVMF has honored this day as Agent Orange Awareness Day. 
       
      If you are a Gold Star Wife or Gold Star Husband, check your email for their announcement on this day. My husband's photo above is on line with info on others who are honored in a special plaque on the Wall.
      I found it on line today  at the VVMF site,and it still hurts to know he is gone. He was an altar boy in Middleton,NJ and the rest of the photo shows him with his mother, in front of their house , and was taken one week before he left for USMC. 1964. His hair had  began to turn white after he his discharge from USMC , 1968.
       
      While their names are not on The Wall, they are never forgotten. On the Vietnam Veterans Memorial site in Washington, D.C., a special plaque reads: “In Memory of the men and women who served in the Vietnam War and later died as a result of their service. We honor and remember their sacrifice.” Click to learn about the In Memory program.
      https://www.vvmf.org/In-Memory-Program/
       
      In Memory was created in 1993 by the group – Friends of the Vietnam Veterans Memorial. VVMF began managing the program and hosting the ceremony in 1999. More than 4,700 veterans have been added to the In Memory Honor Roll since the program began. To see all the honorees, please visit the In Memory Honor Roll.
      https://www.vvmf.org/In-Memory-Program/
      The relationship of the VVMF  to the Wall is here:
      https://www.vvmf.org/About-The-Wall/  It is an overwhelming site. I was there the day after the dedication and the Mall in DC was still filled with thousands of Vietnam veterans , and their families at the Wall .
      A tracing from the Wall can be used for a PTSD claim, if one of your stressors was seeing a unit buddy killed in Vietnam.
      And dont miss the Moving Wall either- https://www.truckload.org/news/transport-the-wall-that-heals-in-2020/
      But I believe their schedule has been affected by the Covid Virus- but Maybe not-------
       
       
       
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