Share:

Nehmer v. The U.S. Department of Veterans Affairs

Reprinted from PN September 2011

Vietnam veterans and their survivors, who alleged VA had improperly denied their claims for service-connected compensation for disabilities allegedly caused by exposure to the herbicide Agent Orange (AO)

View Forum | Print Article | Font Size + / - | Back

The Nehmer v. The U.S. Department of Veterans Affairs court case originated in 1986 as a class-action lawsuit against VA by Vietnam veterans and their survivors, who alleged VA had improperly denied their claims for service-connected compensation for disabilities allegedly caused by exposure to the herbicide Agent Orange (AO) in service.

In 1989, the United States District Court for the Northern District of California (Court) ruled VA’s regulation was invalid because the causation standard it used was inconsistent with the intent of Congress. The Court invalidated VA’s regulation and voided all benefit denials made under it.

In May 1991, the Nehmer parties entered into a “Final Stipulation and Order” (Final Stipulation) outlining the actions to be taken in response to the Court’s decision. Among other things, the Final Stipulation provided that VA would readjudicate the claims where a prior denial was voided by the Court’s 1989 order and would initially adjudicate all similar claims filed subsequent to the Court’s order, and, if benefits were awarded upon such readjudication or adjudication, the effective date of the award would be the later of the date the claim was filed or the date the disability arose.

Ordinarily, if a claim is granted on the basis of a new regulation, the law states the effective date of the award may not be any earlier than the date on which the regulation went into effect. 

In a February 1999 decision, the Court clarified the scope of its 1989 decision. It voided all VA decisions issued while the invalid regulation was in effect and that denied service connection for a Vietnam veteran’s disease later found associated with herbicide exposure under new regulations. In December 2000, the Court provided further clarification when it concluded VA must pay the full retroactive benefit to the estates of deceased class members.

On October 13, 2009, VA announced Secretary Eric Shinseki’s decision to establish presumptive service-connection for three additional illnesses associated with exposure to herbicides used in Vietnam based on an independent study conducted by the Institute of Medicine: B-cell leukemias (such as hairy cell), Parkinson’s disease, and ischemic heart disease. A proposed rule adding these three conditions to VA’s list of presumptive diseases was published in the Federal Register on March 25, 2010 (75 Fed. Reg. 14,391).

As of September 20, 2010, approximately 145,000 Vietnam veterans and survivors were previously denied service-connection or filed new claims (number may include duplicates that will be removed from final total). All these claims must be adjudicated/readjudicated in order to comply with the Final Nehmer Stipulation.

Source: Department of Veterans Affairs, Veterans Benefits Administration, Nehmer Training Guide (February 10, 2011, revised). For more information, visit nvlsp.org.

 

To order the September 2011 PN, Click Here.
To Subscribe, Click Here.

Article Forum

PN Forum discussions are intended to provide a place for free-flowing exchange of information, opinions, and comments and are designed to provide an enjoyable and informative expression for all participants.
Please review our Forum Rules for complete details.

Login with username and password (Forgot Password?)
New Post

Nehmer v. The U.S. Department of Veterans Affairs

0 Comments


Be the first to comment on this article.
(Register or login to add comments.)