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    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

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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

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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

 

 

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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

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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."


 

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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.....

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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.

 

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