UPDATE: As of January 2020, Blue Water claims are being processed.
With the pressure on the VA to reinterpret how they define inland waterways, Blue Water Vets may soon be able to receive the benefits they’ve always been entitled to. Getting presumptive service connection for Blue Water Vets would be a HUGE accomplishment after years of fighting with the VA over Agent Orange exposure, but we don’t want to stop there. Once the battle over exposure and service connection is won, Blue Water Vets must be aware of the fact that the VA will likely mess up their effective dates. Getting the effective date right is so important because the effective date directly impacts the amount of benefits a veteran receives. If the VA messes up the effective date of your award, you may be missing out on thousands of dollars.
Before getting into the special effective date rules for Agent Orange claims, it’s important to understand the VA’s general rule on effective dates. VA regulations state that the effective date shall be the date of receipt of a claim or the date entitlement arose, whichever is later. Usually, the effective date of a compensation award is the date of receipt of the application for benefits and no earlier.
As always there’s an exception to every rule, and the VA has multiple special effective date rules that apply in particular circumstances. A special set of effective date rules apply to some (but not all) of the Vietnam veterans awarded disability or death benefits as a result of the VA’s Agent Orange compensation regulations. The court case of Nehmer vs. United States Veterans Administration created these special rules which are much more favorable than the traditional effective date rules.
The Nehmer special effective dates do not apply to every Vietnam veteran’s claim. The following describes when the Nehmer special effective date rules apply:
- The special effective date rules apply to claims filed by eligible Vietnam veterans or their survivors.
- The rules DO NOT apply to veterans who were exposed to Agent Orange outside of Vietnam.
- The relevant claim must involve a disease on the list of Agent Orange presumptive conditions.
- The relevant claim must have been pending (not final) any time between September 25, 1985 and the date the VA published the regulation that added the disease to its Agent Orange presumptive list.
The special effective dates created by Nehmer can be hard to fully understand, but having a general sense of what these rules say will give a veteran a better chance of ensuring he receives the correct compensation. The following is a list of the special effective date rules that apply to Agent Orange claims:
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The effective date will be the date the VA received the veteran’s first claim for a disease that was pending at any point between September 9, 1985 and the date the VA amended its Agent Orange Presumptive List.
- If the disease was not at least 10% disabling on the date of the veteran’s claim, the effective date will be the date the evidence shows the disease met the criteria for at least a 10% rating.
- If the claim was received by the VA within one year of the veteran’s discharge, the effective date will be the day the following the date of discharge.
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In DIC claims, the effective date will be the date the VA received the first DIC or death pension claim that was pending at any point between September 25, 1985 and the date the VA amended its Agent Orange Presumptive List.
- If the DIC or death pension claim was filed within 1 year of the veteran’s death, the effective date will be the first day of the month of the veteran’s death.
- If a claim is made AFTER the VA adds a disease to its Agent Orange Presumptive List, the effective date will be the date the disease was added to the list, not the date of the claim.
These rules are probably best understood by looking at examples of their application. The following examples show how the Nehmer effective date rules are applied in different Agent Orange claims:
- Example 1: A Vietnam veteran is diagnosed with ischemic heart disease (IHD) in April 2002. He filed a disability claim with the VA in June 2002. At the time of his claim, the veteran’s symptoms would have qualified him for a 30% rating. The VA ultimately denied the June 2002 claim. Eight years later, the VA adds IHD to the Agent Orange Presumptive List. The VA must re-decide the veteran’s June 2002 claim. The effective date of this claim should be the date of the veteran’s first claim for IHD (June 2002). If the VA tries to say the effective date is the date of the re-decide claim (2010), they would be wrong.
- Example 2: The above example would also be true in a DIC claim. In this example, let’s say the veteran died from IHD in April 2002, and the veteran’s widow filed a DIC claim in July 2003 that was later denied by the RO. When IHD is added to the Agent Orange Presumptive List in 2010, the VA must re-decide the widow’s DIC claim, and should assign the date of the widow’s DIC claim (July 2003) as the effective date.
- Example 3: A Vietnam veteran dies of lung cancer in 1993. Lung cancer is added to the VA’s Agent Orange Presumptive List in 1994. The veteran’s widow files a DIC claim for the first time in 1995. When the VA grants the widow’s claim, the effective date should be in 1994 (the date of the regulation adding lung cancer to the presumptive list).
