UPDATE: As of January 2020, Blue Water claims are being processed.
Over the past couple of months, a number of our blogs have focused the changes coming in VA law, namely the changes for Blue Water Veterans of Vietnam. In February of this year, the Gray v. McDonald made its way to the United States Court of Appeals for Veteran’s Claims (CAVC) challenging the very literal line in the sand the VA has been drawing between Blue Water and Brown Water veterans. In Gray the veteran argued that for purposes of Agent Orange presumptions, DaNang Harbor should be should be considered an inland waterway. The CAVC agreed with this argument and stated that the VA’s distinction failed to identify any specific criteria the used to delineate the different bodies of water. The CAVC then remanded the case stating that the distinctions were arbitrary and capricious and gave instruction to “define inland waterways in a manner consistent with the regulation’s emphasis on the probability of exposure.” What does this mean for Blue Water Veterans?
With the forthcoming revisions, it is very likely that thousands of veterans who were previously denied the exposure for Agent Orange presumptive diseases may now have their claims granted. This in and of itself is a very good thing for veterans who have long been fighting with the VA to get the benefits they have earned and deserve. However, getting the presumption that they deserve is only part of the battle. Once the VA grants a disability, they are notorious for granting it with the wrong effective date. They are unlikely to catch this, and if they do, may not mention it if the claimant does not address it. Effective dates can be tricky at times, but with regard to Vietnam Veterans and Agent Orange exposure, issues can be somewhat simplified. Enter Nehmer.
It is important to first discuss what Nehmer is and what it can do for our Blue Water Veterans. Nehmer laws came about as a result of a class action lawsuit by Beverly Nehmer against the VA in 1986. The case forced the VA to admit that a number of cancers and diseases were related to Agent Orange exposure. The laws were relitigated a number of times. Finally, in 2005, the District Court declared that the 1991 order applies to claims for any disease the VA grants due to Agent Orange exposure. This ruling was codified in the Code of Federal Regulations as 38 C.F.R. § 3.816.
Nehmer requires that when the VA adds to the list of presumptive diseases, the VA examiners must automatically review the cases of Vietnam veterans and their survivors who were previously denied disability or death compensation for the newly-added condition. For Blue Water Veterans, this is not the most important part. What comes into play for our Blue Water Veterans are the retroactive benefits that Nehmer allows. The VA examiner must determine the effective date of the benefits as the date the receipt of the claim. Nehmer applies in two cases, either:
- A veteran who:
- Served in the Republic of Vietnam during the Vietnam Era, and
- Has a covered herbicide disease or,
- A surviving spouse, child, or parent of the deceased veteran who
- Served in the Republic of Vietnam during the Vietnam Era, and
- Died as a result of the covered disease.
For Blue Water Veterans, this means that if you were previously denied service connection for a covered disease because you did not qualify for the presumption, but are granted service connection for one of the covered herbicide diseases under the revised definitions of service in Vietnam, your claim should be granted an effective date of the original claim. Currently, the VA list of covered herbicide diseases includes:
- AL Amyloidosis
- Chronic B-cell Leukemias
- Chloracne
- Diabetes Mellitus Type 2
- Hodgkin’s Disease
- Ischemic Heart Disease
- Multiple Myeloma
- Non-Hodgkin’s Lymphoma
- Parkinson’s Disease
- Peripheral Neuropathy, Early-Onset
- Porphyria Cutanea Tarda
- Prostate Cancer
- Respiratory Cancers (includes lung cancer)
- Soft Tissue Sarcomas.
The Nehmer laws also provide benefits for dependents found nowhere else in the VA regulations. If the veteran dies before receiving his retroactive benefits or while the review is pending, the VA will award the unpaid benefits to the first beneficiary in existence in the following list:
- Spouse
- Child or children (in equal shares if more than one exists)
- Parents
- Or the veteran’s estate.
Nehmer is particularly relevant for Blue Water Veterans because it has the potential to grant thousands upon thousands of dollars in past due benefits to veterans who have previously been denied their due.
For example, a Blue Water Veteran is denied service connection for his Diabetes Mellitus Type 2 in 2008 because he was not entitled to the presumption of Agent Orange Exposure. However, the same veteran is entitled to the presumption under the forthcoming definition of exposure; the VA would grant his claim in 2015. Nehmer would then require that the VA review the veteran’s file looking for the first claim for that disease. If it was previously denied, the veteran would be entitled to the earlier effective date for his newly service connected disability, in this case, 2008. In this one example, that equates to seven years of back due benefits.
Putting a number to it, a 40% rating for DMII requires the veteran take insulin, have a restricted diet, and regulation of activities. A 40% rating with no children and no spouse is a payment of $587.36 per month. The veteran would be entitled to that per month after getting his rating. With Nehmer, the veteran is entitled to that per month back to the earlier effective date, seven years prior. For the sake of simplicity, we will say it was exactly seven years, eighty-four months. That means for the one disability, the veteran, who had previously been denied benefits, is entitled to $49,338.24.
I hope that this article has been informative and helps to show just what Nehmer can do for our Blue Water Veterans. Thank you for your service.
UPDATE: As of January 2020, Blue Water claims are being processed.
