If you have recently received a favorable decision from the VA on your Agent Orange claim, you may think that the long fight with the department of veterans affairs is over. Before you decide whether or not to appeal the decision, you will want to be sure that the VA got both the VA disability rating and the effective date correct.
Perhaps the most complicated issue when it comes to Agent Orange exposure and herbicide exposure-related claims is the special effective date rules (found in 38 C.F.R. 3.816 ) that apply to some veterans as a result of the Nehmer v. U.S. Department of Veterans Affairs class-action lawsuit filed in the northern district of California by the national veterans legal services program.
The Nehmer class action came after the Agent Orange Act was passed by Congress. The special Nehmer effective dates apply only to Vietnam veterans who served on the landmass of republic of Vietnam or its inland waterways (hopefully soon to include Da Nang Harbor ).
Based on the effective date and other factors, VA will compensate you for some of the time that you were disabled but did not receive monthly benefits. This is also known as VA Disability back pay. The VA will calculate and pay out any retroactive VA disability pay owed.
Nehmer Class Action Lawsuit
Before we discuss the Nehmer adjudication and the resulting effective date rules, it is helpful to understand the basics of the Nehmer class action itself. The lawsuit was filed in 1986 (and certified as a class action in 1987) by a group of claimants to challenge a VA regulation from 1985 which gave presumptive status to chloracne claims only.
In 1989, the court invalidated the 1985 regulation, finding that the regulation required too high of a standard of proof and required the VA to undergo new rule-making standards.
Two years later, in 1991, the parties reached a final stipulation as to how the VA would treat class members if the VA added new regulations in the future which added diseases to the presumptive list.
The stipulation and order provided that whenever the VA adds a covered herbicide disease to the presumptive list, the VA must identify all veterans (and their surviving spouse and dependents) who were previously denied service connection for that disease or had claims pending in district court between September 25, 1985 and the publication date of the regulation adding the disease.
Once such veterans are identified, the VA must re-decide their claims based on the new regulation and allow the veterans to submit new evidence. If service connection is granted, the VA must apply the special effective date rules that were also part of the 1991 Nehmer court orders and stipulation and grant dependency and indemnity compensation.
Since 1991, VA has been required to do mass reviews of claims for the following:
- Non-Hodgkin’s lymphoma and soft-tissue sarcoma (1991)
- Hodgkin’s disease
- Respiratory cancers
- Multiple myeloma (1994)
- Agent orange and prostate cancer (1996)
- Type 2 diabetes (2001)
- Chronic lymphocytic leukemia (2003)
- Primary AL amyloidosis (2009)
- Ischemic heart disease
- Parkinson’s disease
- B-cell leukemias (2010)
If you have been denied benefits due to Agent Orange toxic exposure, want to receive back pay compensation or are attempting to increase your rating, the team at Hill & Ponton may be able to assist you. Click the button below to get more information.
Service requirements for presumption of Agent Orange exposure
The VA bases eligibility for VA disability compensation benefits, in part, on whether you served in a location that exposed you to Agent Orange. You have a presumption of exposure if you meet at least one of these service requirements.
Between January 9, 1962, and May 7, 1975, you must have served for any length of time in at least one of these locations:
- In the Republic of Vietnam, or
- Aboard a U.S. military vessel that operated in the inland waterways of Vietnam, or
- On a vessel operating not more than 12 nautical miles seaward from the demarcation line of the waters of Vietnam and Cambodia
Or you must have served in at least one of these locations that they’ve added based on the PACT Act:
- Any U.S. or Royal Thai military base in Thailand from January 9, 1962, through June 30, 1976, or
- Laos from December 1, 1965, through September 30, 1969, or
- Cambodia at Mimot or Krek, Kampong Cham Province from April 16, 1969, through April 30, 1969, or
- Guam or American Samoa or in the territorial waters off Guam or American Samoa from January 9, 1962, through July 31, 1980, or
- Johnston Atoll or on a ship that called at Johnston Atoll from January 1, 1972, through September 30, 1977
Or at least one of these must be true for you:
- You served in or near the Korean DMZ for any length of time between September 1, 1967, and August 31, 1971, or
- You served on active duty in a regular Air Force unit location where a C-123 aircraft with traces of Agent Orange was assigned, and had repeated contact with this aircraft due to your flight, ground, or medical duties, or
- You were involved in transporting, testing, storing, or other uses of Agent Orange during your military service, or
- You were assigned as a Reservist to certain flight, ground, or medical crew duties at one of the locations listed here
Eligible Reserve locations, time periods, and units include:
- Lockbourne/Rickenbacker Air Force Base in Ohio, 1969 to 1986 (906th and 907th Tactical Air Groups or 355th and 356th Tactical Airlift Squadrons)
- Westover Air Force Base in Massachusetts, 1972 to 1982 (731st Tactical Air Squadron and 74th Aeromedical Evacuation Squadron, or 901st Organizational Maintenance Squadron)
- Pittsburgh International Airport in Pennsylvania, 1972 to 1982 (758th Airlift Squadron)
For more service requirement details, review:
Public Law 116-23 (Blue Water Navy Vietnam Veterans Act of 2019)
Air Force specialty codes and units for affected C-123 aircraft (PDF)
Dates and locations of herbicide tests and storage outside Vietnam
Special Nehmer Effective Date Rules
Under the special Nehmer effective date rules, it does not matter, thanks to the Nehmer class members, when the VA adds a disease to the presumptive list.
The rule is that the effective date is the latter of the date the VA received the initial disability claims for an Agent Orange-related disease (“initial claim” means the first claim filed after or pending on September 25, 1985) or the date the Agent Orange-related disease was first diagnosed.
In simplest terms, if a veteran filed his first claim for an Agent Orange-related disease before the VA added the disease to the presumptive list, the effective date of his claim (provided the disease eventually gets added to the list) is usually the date of the first claim.
As mentioned above, even if a disease has not been added to the presumptive list yet, such as renal cancer, a veteran should file a claim with the veterans administration now in order to preserve the earliest possible effective date under these special Nehmer rules.
It is also important to note some other particularities about Nehmer claims.
In regards to the initial claim, that claim does not need to have mentioned Agent Orange specifically in order to qualify as the “initial claim” under the Nehmer code of federal regulations rules.
In addition, if the veteran dies before his initial claim is re-decided under Nehmer, the VA still must decide the claim and pay, in priority order, his spouse, children of any age, his parents, or his estate.
Another tricky Nehmer rule relates to evidence of an Agent Orange-related disease that is in a veteran’s C-File. For example, say a veteran filed a claim for service connection for arthritis in 1995. While that claim was still pending, a 1998 diagnosis of ischemic heart disease was added to the veteran’s C-File.
If the arthritis claim became final in 1999, and the veteran filed a new claim for ischemic heart disease in 2010 when the disease was added to the presumptive list, the effective date for his claim goes back to 1998, even though the initial claim was not for ischemic heart disease. What matters in this situation is that the diagnosis was part of the veteran’s C-File from 1998 onward.
As you can see, these special Nehmer effective date rules are very technical and are something that the u.s. department of veterans affairs gets wrong a lot, so it is always important to double-check the effective date of such a claim to make sure it is correct or you may be missing out on many years of retroactive benefits.
Will the VA Pay Back to My Effective Date?
VA disability back pay is calculated based on the effective date of your VA disability claim. The effective date is usually the date that your VA disability benefits claim was received by VA. Occasionally there can be some exceptions to this rule.
A common misconception is that the VA will grant back pay all the way to the date of your injury or when your disability began. The VA does not consider these dates to be effective dates.
How to Fix an Incorrect Effective Date
If you’re within one year of your ratings decision, you can appeal the incorrect effective date under the Appeals Modernization Act by any of the following methods:
- Higher-Level Review
- Supplemental Claim
- Board of Veteran’s Appeals
- Clear and Unmistakable Error Claim
Have Questions About Appealing Your Claim or Understanding How the Claims Process Works?
The attorneys at Hill & Ponton are here to support you with appealing a claim to get Agent Orange back pay benefits.
If you are intending to appeal a denied claim, you can contact us for an evaluation and we can help you with this process.
However, if you are considering filing an initial claim, or even if you are interested in learning about the appeals process, we offer a free ebook to get you started on the right foot!
The Road to VA Compensation Benefits will help break down the claims process from start to finish. Click the link below to learn more.
