AO Dates of Entitlement & Retro claims & The Nehmer

[thedrifter]

AO Dates of Entitlement & Retro claims & The Nehmer
Stipulation (38 CFR 3.816)

This was a recent change to a VA Manual... if you think in applies to you..
discuss it with YOUR Vet Svc Officer
also see VA Fast Letter April 12, 2004
http://www.nvlsp.org/what'snewinvetsbenefits.htm

http://www.nvlsp.org/Liesegang,et%20al%20(April%2012,%202004).htm


below comes from:
<http://www.warms.vba.va.gov/M21_1.html>http://www.warms.vba.va.gov/M21_1.html


M21-1, Part VI February 5, 2004
<http://www.warms.vba.va.gov/admin21/m21_1/part6/ch07.doc>http://www.warms.vba.va.gov/admin21/m21_1/part6/ch07.doc


M21-1, Part
VI
February 5, 2004

Change 110



(3) Dates of Entitlement. The diseases listed in 38 CFR 3.309(e) were
made subject to presumptive service connection on the dates shown below:



Effective Date
Disability




February 6, 1991* and ***
Chloracne or other acneform disease consistent with chloracne




February 6, 1991*
Soft-tissue sarcoma (other than osteosarcoma,

chondrosarcoma, Kaposi's sarcoma, or mesothelioma)




February 6, 1991**
Non-Hodgkin's lymphoma




February 3, 1994
Porphyria cutanea tarda, Hodgkin's disease




June 9, 1994
Respiratory cancers (cancer of the lung, bronchus, larynx, or
trachea), multiple myeloma



November 7, 1996


Prostate cancer, acute and subacute peripheral neuropathy




May 8, 2001
Diabetes mellitus (Type 2)




October 16, 2003***
Chronic lymphocytic leukemia




Unless an earlier effective date is determined pursuant to the Nehmer
Stipulation, the provisions pertaining to retroactive payment under 38 CFR
3.114(a) apply.



* originally September 25, 1985 under section 3.311a

** originally August 5, 1964 under section 3.313

*** not subject to the provisions of 38 CFR 3.816 (See 7.20d.)



(4) Conditions for which the Secretary has determined there is no positive
association with herbicide exposure. Under the Agent Orange Act of 1991,
the Secretary receives periodic reviews and summaries of the scientific
evidence concerning the association between exposure to herbicides and
diseases suspected to be associated with those exposures from the National
Academy of Sciences (NAS). To the extent possible, NAS determines: (1)
whether there is a statistical association between specific diseases and
herbicide exposure; (2) the increased risk of disease among individuals
exposed to herbicides in the Republic of Vietnam during the Vietnam Era;
and (3) whether there is a plausible biological mechanism or other evidence
that herbicide exposure causes specific diseases. Based on cumulative
scientific data reported by NAS since 1993, the Secretary has determined
that there is no positive association (i.e., the evidence for an
association does not equal or outweigh the evidence against an association)
between herbicide exposure and the following conditions:



· hepatobiliary cancers

· nasal and nasopharyngeal cancer

· bone cancers

· breast cancer

· cancers of the female reproductive system

· urinary bladder cancer

· renal cancer

· testicular cancer

· leukemia (other than chronic lymphocytic leukemia)

· reproductive effects (abnormal sperm parameters and infertility)

· Parkinson's disease

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· chronic persistent peripheral neuropathy

· lipid and lipoprotein disorders

· gastrointestinal and digestive disease (other than diabetes mellitus)

· immune system disorders

· circulatory disorders

· respiratory disorders (other than certain respiratory cancers)

· skin cancer

· cognitive and neuropsychiatric effects

· gastrointestinal tract tumors

· brain tumors

· amyloidosis



d. The Nehmer Stipulation (38 CFR 3.816)

(1) Background. Title 38 CFR 3.311a, which became
effective on September 25, 1985, was the first VA regulation to provide
guidance for the adjudication of claims based on dioxin exposure. In
February 1987, a class action entitled Nehmer v. United States Veterans
Administration, et al. was filed in the United States District Court for
the Northern District of California. On May 3, 1989, the district court
invalidated a portion of 38 CFR 3.311a. All denials on or after September
25, 1985 based on that regulation were voided, and a moratorium was placed
on further denials. The moratorium was lifted on February 15,
1994. Effective September 24, 2003, 38 CFR 3.816 was added to provide
guidance for awarding disability compensation and DIC benefits under the
Nehmer litigation.



(2) Nehmer Class Members. Nehmer class members under 38
CFR 3.816 include a veteran who served in the Republic of Vietnam during
the Vietnam era who has a covered herbicide disease, and the surviving
spouse, child, or parent of a deceased veteran who served in the Republic
of Vietnam during the Vietnam era and died from a covered herbicide disease.



(3) Covered Herbicide Disease. "Covered herbicide disease" under 38 CFR
3.816 means a disease for which VA has established a presumption of service
connection before October 1, 2002 under the Agent Orange Act of 1991, other
than chloracne. These diseases are



· Type 2 Diabetes (also known as type II diabetes mellitus or
adult-onset diabetes)

· Hodgkin's disease

· Multiple myeloma

· Non-Hodgkin's lymphoma

· Acute and Subacute peripheral neuropathy

· Porphyria cutanea tarda

· Prostate cancer

· Respiratory cancers (cancer of the lung, bronchus, larynx, or
trachea), and

· Soft-tissue sarcoma (as defined in 38 CFR 3.309(c)).



(4) Entitlement to Benefits. A Nehmer class member is entitled to
disability compensation or DIC benefits under 38 CFR 3.816 if a claim for
service-connected disability or death from a covered herbicide disease was
(1) denied in a decision issued between September 25, 1985 and May 3, 1989,
(2) pending on May 3, 1989 or, (3) received between May 3, 1989 and the
effective date of the regulation establishing a presumption of service
connection for the covered disease.



Note: Minor differences in the terminology used in the prior decision will
not preclude a finding, based on the record at the time of the prior
decision, that the prior decision denied compensation for the same covered
herbicide disease.



(5) Effective Date. The effective date of compensation benefits under 38
CFR 3.816 is the date of receipt of the claim on which the prior denial was
based or the date on which the disability arose, whichever is



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later. The effective date of an award of DIC benefits under 38 CFR 3.816
is the later of the date of receipt of the prior claim or the date of the
veteran's death.



Exceptions: If VA received the prior claim for compensation within one
year after the veteran's separation from service, the effective date of
compensation is governed by 38 CFR 3.400(b)(2). If the prior claim for DIC
was received within one year after the veteran's death, the effective date
of DIC is governed by 38 CFR 3.400(c).



Note: The provisions of 38 CFR 3.114(a) limiting effective dates to no
earlier than the date of a liberalizing law or issue do not apply to
benefits awarded under 38 CFR 3.816.



Example 1: The veteran's initial claim for lung cancer was received on
August 4, 1985 and denied on November 19, 1985. Medical evidence showed a
diagnosis of lung cancer in July 1985. In this case, the date of
entitlement to benefits under 38 CFR 3.816 would be from the date of claim,
August 4, 1985. If the claim had been denied prior to September 25, 1985,
it would be unaffected by the Nehmer Stipulation, and the effective date
would be governed by 38 CFR 3.114(a).



Example 2: The veteran's initial claim for service connection for lung
cancer was received on October 14, 1992 and denied on December 23,
1992. Medical evidence showed a diagnosis of lung cancer in September
1992. Since the claim was received before June 9, 1994, the effective date
of the presumption of service connection for lung cancer under 38 CFR
3.309(e), compensation benefits under 38 CFR 3.816 may be awarded from the
date of claim, October 14, 1992.


continued.........

[thedrifter]

Example 3: On November 3, 1986, a veteran with Vietnam service died from
Hodgkin's disease. His widow filed a claim for DIC on December 10, 1986,
alleging that his death was related to Agent Orange exposure. On February
12, 1987, entitlement to DIC benefits was denied. The effective date for
an award of DIC benefits would now be determined with reference to the date
of claim, December 10, 1986. Since, in this case, the date of claim is
within one year of the veteran's death, the date of eligibility would be
the first day of the month in which the veteran's death occurred as
required by 38 CFR 3.400(c)(2).



(6) Scope of Retroactive Payment Provisions



(a) No Requirement of a Claim That Specifically Mentions
Herbicide Exposure. In its February 11, 1999 order the district court held
that a Nehmer class member's compensation or DIC claim need only have
requested service connection for the condition in question to qualify as a
Nehmer claim. It is not necessary that the claim have asserted that the
condition was caused by herbicide exposure.



Example: A veteran with Vietnam service filed a claim in
1994, expressly alleging that his prostate cancer was caused by exposure to
ionizing radiation in service prior to his service in Vietnam. VA denied
the claim in 1995. The veteran reopened the claim in 1997, and service
connection was granted. On these facts, the effective date must relate
back to the 1994 claim, even though the veteran alleged a different basis
for service connection.



(b) Porphyria Cutanea Tarda (PCT). Title 38 CFR
3.311a(d), which was published on October 21, 1991, stated that sound
scientific and medical evidence did not establish a significant statistical
association between herbicide exposure and PCT. A denial of PCT under 38
CFR 3.311a after October 20, 1991, was valid and an earlier effective date
for benefits would not be assigned under 38 CFR 3.816. However, a claim
for PCT which was denied between September 24, 1985, and October 21, 1991,
would be considered for an earlier effective date under 38 CFR 3.816.



(c) Type 2 Diabetes Mellitus. Effective May 8, 2001,
Type 2 diabetes mellitus became subject to presumptive service connection
under 38 CFR 3.309(e). Retroactive benefits under the Nehmer review may be
warranted for claims for service connection for Type 2 diabetes filed or
denied during the period from September 25, 1985 to May 7, 2001. If a
prior claim did not involve service connection for Type 2 diabetes, it
generally would not provide a basis for an earlier effective
date. However, a lack of specificity in the initial claim may be clarified
by later submissions.

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Example 1: In January 1987, a veteran claimed
compensation for hyperglycemia. In developing the claim, VA obtained
medical records indicating that the veteran was diagnosed with Type 2
diabetes in February 1987. On these facts, it would be reasonable to treat
the January 1987 claim as a claim for service connection of Type 2
diabetes. Under 38 CFR 3.816, benefits may be paid retroactive to the
later of the date of that claim or the date the disability arose, as
determined by the facts of the case.



Example 2: In 1995, a veteran claimed compensation for
hyperglycemia. Medical records obtained by VA indicated the veteran did
not have Type 2 diabetes. In 2001, the veteran claimed compensation for
Type 2 diabetes, submitting evidence showing that the condition was
diagnosed in 1996. On these facts, the 1995 claim was not a claim for
service connection of Type 2 diabetes, as neither the application nor the
evidence of record suggested the presence of Type 2 diabetes.



(d) Payment to the Survivors or Estate of a Nehmer Class Member


1. Identifying Appropriate Payee. If a Nehmer class member
entitled under 38 CFR 3.816(c) and (d) dies before receiving the payment of
retroactive benefits, award the unpaid benefits to the first individual or
entity in existence in the following order: spouse; child or children
(divided into equal shares, if more than one child exists), regardless of
age or marital status; parents (divided in half, if both parents are
alive); estate.

Note 1: The survivor or estate of a Nehmer class member
is not required to file an application in order to receive the unpaid
benefits.



Note 2: The provisions of 38 U.S.C. 5121(a) limiting
payment of accrued benefits to amounts paid and due for a period not to
exceed two years prior do not apply to payments under 38 CFR 3.816.



2. If Appropriate Payee Cannot Be Identified. If a class
member is deceased and the claims file does not clearly identify an
eligible survivor, use all available information in the file to determine
an appropriate payee. For example, if the claims file identifies an
authorized representative or relative, this person should be contacted for
information on the existence of a surviving spouse, children, parents, or
estate. If this development does not identify an appropriate payee,
annotate the rating decision that it was not possible to locate any payee
eligible for Nehmer payment.


3. Developing for Other Survivors. Before awarding
benefits to an identified payee, ask the payee to state whether there are
any other survivors of the class member who may have an equal or greater
entitlement to payment under 38 CFR 3.816, unless the circumstances clearly
indicate that such a request is unnecessary. If, after the claim is
developed, the full amount of benefits is awarded to a payee, do not pay
any portion of the amount to any other individual, unless the payment
previously released can be recovered.

7.21 ASBESTOS-RELATED DISEASES

7.21 ASBESTOS-RELATED DISEASES

a. General

(1) Asbestos fiber masses have a tendency to break easily
into tiny dust particles that can float in the air, stick to clothes, and
may be inhaled or swallowed. Inhalation of asbestos fibers can produce
fibrosis and tumors. The most common disease is interstitial pulmonary
fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions
and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung
cancer, and cancers of the gastrointestinal tract. Cancers of the larynx
and pharynx as well as the urogenital system (except the prostate) are also
associated with asbestos exposure.



(2) Asbestos, a fibrous form of silicate mineral of varied chemical
composition and physical configuration, derives from serpentine and
amphibole ore bodies. The asbestos fibers are obtained from these minerals
after the rocks have been crushed. Africa has been the source of large
quantities of crocidolite and amosite. The main asbestos product now used
in the United States is chrysotile which consists of varied mixtures of
chrysotile, tremolite, actinolite, and anthophyllite fibers. The
biological actions of these fibers differ

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Change 110



in some respects. Chrysotile products have their initial effects on the
small airways of the lung, cause asbestosis more slowly, but result in lung
cancer more often. The African fibers have more initial effects on the
small blood vessels of the lung, the alveolar walls and the pleura, and
result in more mesothelioma. True chrysotile fibers are hollow and
extremely thin. All the other varieties of asbestos fibers are solid.



(3) Persons with asbestos exposure have an increased
incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and
urogenital cancer. The risk of developing bronchial cancer is increased in
current cigarette smokers who have had asbestos exposure. Mesotheliomas
are not associated with cigarette smoking. Lung cancer associated with
asbestos exposure originates in the lung parenchyma rather than the
bronchi. About 50 percent of persons with asbestosis eventually develop
lung cancer, about 17 percent develop mesothelioma, and about 10 percent
develop gastrointestinal and urogenital cancers.



All persons with significant asbestosis develop cor pulmonale and those who
do not die from cancer often die from heart failure secondary to cor pulmonale.

b. Occupational Exposure

(1) Some of the major occupations involving exposure to
asbestos include mining, milling, work in shipyards, insulation work,
demolition of old buildings, carpentry and construction, manufacture and
servicing of friction products such as clutch facings and brake linings,
manufacture and installation of roofing and flooring materials, asbestos
cement sheet and pipe products, military equipment, etc. Exposure to any
simple type of asbestos is unusual except in mines and mills where the raw
materials are produced.




continued.....

[thedrifter]

2) High exposure to asbestos and a high prevalence of
disease have been noted in insulation and shipyard workers. This is
significant considering that, during World War II, several million people
employed in U.S. shipyards and U.S. Navy veterans were exposed to
chrysotile products as well as amosite and crocidolite since these
varieties of African asbestos were used extensively in military ship
construction. Many of these people have only recently come to medical
attention because the latent period varies from 10 to 45 or more years
between first exposure and development of disease. Also of significance is
that the exposure to asbestos may be brief (as little as a month or two) or
indirect (bystander disease).

c. Diagnosis. The clinical diagnosis of asbestosis
requires a history of exposure and radiographic evidence of parenchymal
lung disease. Symptoms and signs may include dyspnea on exertion and
end-respiratory rales over the lower lobes. Clubbing of the fingers occurs
at late stages of the disease. Pulmonary function impairment and cor
pulmonale can be demonstrated by instrumental methods. Compensatory
emphysema may also be evident.


d. Guidelines

(1) When considering VA compensation claims, RVSRs must
determine whether or not military records demonstrate evidence of asbestos
exposure in service. RVSRs must also assure that development is
accomplished to determine whether or not there is preservice and/or
post-service evidence of occupational or other asbestos exposure. A
determination must then be made as to the relationship between asbestos
exposure and the claimed diseases, keeping in mind the latency and exposure
information noted above. As always, the reasonable doubt doctrine is for
consideration in such claims. If assistance is needed, contact the
Compensation and Pension Service Regulations Staff.

(2) Rate asbestosis under diagnostic code 6833 and pleural
effusions and fibrosis, and pleural plaques analogous to asbestosis. Rate
cancers under the diagnostic code for the appropriate body system. Rate

mesothelioma of pleura analogous to diagnostic code 6819 and mesothelioma
of peritoneum analogous to diagnostic code 7343.


Ellie