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AO Survivors -info on Nehmer

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Berta

Question

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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