If you are a Vietnam-Era veteran and have been awarded VA disability benefits for medical problems associated with Agent Orange, did the VA properly compute the effective date for your conditions? We raise this question because it is critically important. If the VA got the date wrong then you may have been seriously short-changed on your past-due benefits. The effective date rules for Agent Orange-related conditions are different than for other disabilities.
Normally in VA disability cases when new, more liberal rules are adopted which make it easier for a vet to get benefits, the effective date cannot be earlier than the effective date of the new regulation. Usually the effective date is the date that the rule is published. For example, say a vet files a disability claim 1998 and is denied benefits. Then on July 1, 2004 the VA adopts a new regulation. Let’s say the vet had reopened the denied claim in March 2004 and this time, because of the new, more liberal regulations, the claim is approved. Even though our vet reopened his claim in March the effective date for benefits cannot be earlier than the effective date of the new, more liberal rules. So, the effective benefits date is July 1, 2004.
But as I said the rules for Agent Orange-related cases are different. This is an outcome of the Nehmer case, a 1986 class-action lawsuit brought on behalf of Vietnam veterans exposed to the herbicide dioxin. In Nehmer the Court held that, when the VA issues a liberalizing rule that provides presumptive service-connection for a new condition, the VA is required to re-adjudicate cases in which VA previously denied veteran or survivor’s claims for benefits related to that new presumption.
Nehmer is once again a hot topic because the VA has recently liberalized its rules which establish that exposure to Agent Orange is the cause of Ischemic Heart Disease among Vietnam vets and is a presumptive condition.
Here’s how to determine the proper Nehmer effective date for your Agent Orange claim. If you filed a claim for Ischemic Heart Disease within one year of your discharge from the military, the effective date will be the day following your discharge. If you filed a claim for an Ischemic Heart Disease prior to the effective date of the new rules, and the VA denied that claim, the effective date is the later of the date the disability arose, or, the date the VA received your prior claim. If you did not file a claim for an Ischemic Heart Disease prior to the effective date of the new liberalizing rule, the VA’s general rules on effective dates apply.
Determining the proper effective date for Ischemic Heart Disease or any Agent Orange presumptive condition can get very confusing. It is always best to consult with an accredited veterans’ benefits attorney when trying to determine if and how Nehmer applies to your case. We are here to help you. Call us for a free appointment.
