Jump to content
  • veteranscrisisline-badge-chat-1.gif

  • Advertisemnt

  • 14 Questions about VA Disability Compensation Benefits Claims

    questions-001@3x.png

    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
    Continue Reading
     
  • Ads

  • Most Common VA Disabilities Claimed for Compensation:   

    tinnitus-005.pngptsd-005.pnglumbosacral-005.pngscars-005.pnglimitation-flexion-knee-005.pngdiabetes-005.pnglimitation-motion-ankle-005.pngparalysis-005.pngdegenerative-arthitis-spine-005.pngtbi-traumatic-brain-injury-005.png

  • Advertisemnt

  • VA Watchdog

  • Advertisemnt

  • Ads

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

  • 0
Sign in to follow this  
MEM

Nehmer claim? Agent Orange Related Lung Cancer

Question

Hi,

 My career army dad served in Vietnam.  He died after retirement at 48 of lung cancer.  

Does a deferred 21-534 claim from 1989 constitute a nehmer claim?  The information I've read on the internet seems to say claims that were denied are Nehmer, but I haven't seen much information about claims that were marked "deferred" and never adjudicated.  The claim includes AO presumptive illness.

Thank you all for your help and wealth of information that you share on this forum.  I've been reading it for a while and you have helped me so much!

 

Edited by MEM

Share this post


Link to post
Share on other sites

Recommended Posts

  • 0

VA does recognize respiratory cancers as caused by AO exposure.

https://www.publichealth.va.gov/exposures/agentorange/conditions/respiratory_cancers.asp

However I have seen the VA deny a few lung cancer claims in Vietnam veterans. We had one or two cases here like that.

"Does a deferred 21-534 claim from 1989 constitute a nehmer claim? "

534 means a DIC claim was filed . Did your mom file a DIC claim when he died?

Did the VA "defer" it?     Did they VA deny it?

If they defered or denied ( or both)  can you scan and attach the denial here as to the part where they state why they denied or deferred it - (cover c file name , address prior to scanning it)-but - then again- you also said it was 

"never adjudicated" so that means maybe it was never filed.

Can you prove the 21-534 was filed? And when?

 

I saw one lung cancer claim whereas the VA stated the veteran was exposed to AO but got lung cancer over 30 years after the War and they denied on that basis....maybe I can find that claim....

We have a wealth of info here on Nehmer-I am a Nehmer Class Action member- due to my dead husband's service in Vietnam.

" The information I've read on the internet seems to say claims that were denied are Nehmer, "

that is -in many cases true, but not in all cases,

"but I haven't seen much information about claims that were marked "deferred" and never adjudicated"

I have been involved in the AO issue since 1991 and have never heard of any deferred claims for DIC ( maybe there were deferred claims for  some for vets who filed before the regulations for their specific AO disability became actual law)

This is the 2010 Nehmer decision:

https://www.law.cornell.edu/cfr/text/38/3.816

 

 

Share this post


Link to post
Share on other sites
  • 0

Thank you Berta!  Sorry for your loss.

1989 my mom filed a 21-534 shortly after my father's death. (Stamped "received" by VA with a date)

1989, Form 21-6789: Claim "DEFERRED" due to "Other".  Under "explanation for items checked" is handwritten "AGENT ORANGE EXP. claimed. Control for receipt of instructions".

1989, Letter from VA: "VA could not take immediate action on your claim for benefits based on dioxin (Agent Orange) exposure because a U.S. District Court has directed that the Department of Veterans Affairs reconsider its regulations pertaining to dioxin exposure.  As soon as the process is completed (approximately 6 months) we will consider your claim and inform you of our decision.  We are sorry for this delay and will proceed as quickly as possible.”

1989, Another letter from VA:  “Since you authorized the burial services for the veteran, we want to tell you that we are making payment in the amount of $150 to Funeral Home.  A decision is pending as to whether the increased allowance for service-connected death is payable.  We will advise you when the decision is made.”

Nothing follows from VA regarding this claim in c-file. 

I have copies from VARO of all of this communication.

Edited by MEM
adding information

Share this post


Link to post
Share on other sites
  • 0

In this case, which might help you understand Nehmer - the widow was in receipt of DIC but was denied for a earlier effective date- the BVA decision states that her claim was held in " abeyance" pending the actual regulations becoming law-the dates for AO presumptives is an important factor in AO claims.

Is it possible your mother filed a DIC claim and then received word from VA that it was in abeyance ( technically meaning deferred)

https://www.va.gov/vetapp99/files1/9904269.txt

The BVA states:

5.  Adjudication of her reopened claim was held in abeyance 
pending publication of revised regulations dealing with Agent 
Orange presumptive diseases.  She was notified of this action 
by letter dated September 5, 1990.

6.  Pursuant to the Agent Orange Act of 1991, 38 C.F.R. 
§§ 3.307(a), 3.309(e) were amended in June 1994 to allow 
service connection for veterans who were presumed to have 
been exposed to herbicide agents in Vietnam and developed one 
of the specified diseases listed thereunder, including lung 
cancer.

7.  By rating decision in October 1994, the RO granted 
service connection for the cause of the veteran's death due 
to lung cancer based on presumptive Agent Orange exposure in 
service under 38 C.F.R. § 3.309(e).  An award letter notified 
the appellant that her DIC benefits were payable effective 
from August 1, 1990, the first day of the month after receipt 
of her reopened claim for DIC benefits.

8.  The appellant qualifies as a member of the class in 
Nehmer, et al. v. United States Veterans Administration, et 
al., 712 F. Supp. 1404 (N.D. Cal. 1989), having filed a claim 
in July 1990 after the date of the court's decision in Nehmer 
and before issuance of new regulations in June 1994.

9.  The appellant's DIC claim was pending at the time the RO 
issued its rating decision of October 1994 granting these 
benefits."


 

Share this post


Link to post
Share on other sites
  • 0

I think your question rests on one very important issue- did the VA receive the 534 and then never adjudicate it at all. You would need to obtain a copy of the C file of your dad-if he in fact had a C file,  or any new C file they might have opened for your mother. Unless you have acknowledgement of the receipt of the claim from the VA....or anything at all from the VA.....

Share this post


Link to post
Share on other sites
  • 0

Berta,

Were you able to see my last reply? I'm new, and am not sure you saw my response.  It says "hidden" at the top.

 

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.
Note: Your post will require moderator approval before it will be visible.

Guest
Answer this question...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Sign in to follow this  

  • Our picks

    • I filed a claim in october of 2018 for ptsd and TDIU, long story short I tried to do everything myself and didn't have the proper diagnosis so I was service connected for anxiety based on having a medical marijuana card diagnosis for anxiety but the rating was 30% and I much worse off then that. So I obtained a referral from the va to a fancy psychiatrist from the university of north florida's behavior health department and was diagnosed with ptsd, bi polar 1 and panic disorder. I used this new medical evidence as my supplemental claim evidence and filed it April 16, 2019 after receiving my letter March 20, 2019. My claim is now at Pending Decision Approval with an estimated completion date of july 2, 2019 which is super fast from all I have read. My question is, Am I going to be awarded tdiu with the evidence I submitted if they adjust me up to 70% which I think it will . Or if they award 70% for ptsd on this new supplemental claim will i have to re-apply for tdiu again? Or would that all be considered in the final review of the entire claim? Thanks for any help.

      1-22 1BCT 4th I.D. "Regulars by God"
      • 1 reply
    • how do you figure when they will start paying me at the 100% rate, housebound..?  They will start the pay before they finish the back pay?  That would be nice !!
    • Hello:

      If you receive a hysterectomy while you are filing for disability through the VA, will it still count?

      I am out of the military.

      Thank you
      • 1 reply
    • Help needed bad  Male MST
      Is there anything for a man who's been diagnosed with PTSD secondary to MST. I see all this information and it's primarily speaking as if it only happened to females. If anybody has any advice for a man who suffers from this condition please let me know I'm not alone. Also let me know of any coping skills you've learned as I have lived the last 25-30 years of my life in full flight from reality. 
      • 9 replies
    • Occasionally it becomes necessary for HadIt.com to come to the community to help raise funds. This is one of those occasions.

      A couple of things to keep in mind

      Financial contributions are never required, but always appreciated.


      NOT tax deductible, HadIt.com is NOT a non profit and any contribution you make is just a gift and cannot be deducted on your taxes.


      If you prefer to give through a subscription, you may subscribe here the rates are $5 per month or $50 per year and gives you an ad free experience on the forums.



      Thank you for your support!
      • 3 replies
  • Ads

  • Popular Contributors

  • Ad

  • Latest News
×
×
  • Create New...

Important Information

{terms] and Guidelines