VA Agent Orange Laws Explained

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As with any bureaucratic organization, the VA requires special rules to ensure that veterans’ claims for benefits are adjudicated properly and fairly. In addition, the VA also has been proven to require check-ups to make sure they are actually following the rules that they created in the first place.

Such a “special rule” would be the Nehmer laws. These rules are specifically directed toward Vietnam veterans who have Agent Orange-related illnesses.

How the Nehmer Laws Came About:

The Nehmer laws were the result of a class action lawsuit between Beverly Nehmer and the US Department of Veterans Affairs in 1986. Successfully litigated by the National Veterans Legal Services Program (NVLSP), this case forced the VA to acknowledge (beginning in 1990) that many types of cancer and other serious diseases are related to Agent Orange exposure.

This case was brought back to Court several times, as the attorneys from the NVLSP repeatedly caught the VA mis-adjudicating these types of claims even with the new rules in place. The NVSLP returned to the federal court in 1995, 2000, and 2004. The final rule, issued by the District Court in 2005, declared that the 1991 Court Order applies to claims for any disease the VA may service connect due to Agent Orange exposure until at least 2015, when the Agent Orange Act of 1991 was set to expire.  The final regulation was added to the Code of Federal Regulations in the form of 38 C.F.R. § 3.816.

What the Nehmer Laws State:

The Nehmer laws state that, when the VA adds to the list of presumptively service-connected as due to Agent Orange, the VA adjudicators are required to review automatically the cases of Vietnam veterans and their survivors who were previously denied disability or death compensation for newly-added condition.  Furthermore, in re-adjudicating claims under the Nehmer review, the VA is required to determine the effective date of the retroactive benefits as the date of the receipt of the claim.

The Nehmer laws only apply to Nehmer class members, which include:

  • Veteran who:
    • Served in the Republic of Vietnam during the Vietnam era, and
    • Has a covered herbicide disease
  • 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 a covered herbicide disease

The covered herbicide diseases under 38 C.F.R. § 3.816 are diseases for which VA has established a presumption of service connection before October 1, 2002, under the Agent Orange Act of 1991. They include the following:

  • acute and subacute peripheral neuropathy
  • Hodgkin’s disease
  • multiple myeloma
  • non-Hodgkin’s lymphoma
  • porphyria cutanea tarda
  • prostate cancer
  • respiratory cancers (cancer of the lung, bronchus, larynx, or trachea)
  • soft-tissue sarcoma, as defined in 38 C.F.R. § 3.309(c), and
  • Type 2 diabetes, also known as type II diabetes mellitus or adult-onset diabetes.

A Nehmer class member is entitled to compensation if a claim for service connection for a covered herbicide disease, or DIC was based on death caused by a covered herbicide disease, was:

  • Denied in a decision issued between September 25, 1985, and May 3, 1989
  • Pending on May 3, 1989
  • Received between:
    • May 3, 1989 and
    • The effective date of the regulation establishing a presumptive service connection for the covered disease

The Nehmer laws also have a special provision that is found nowhere else in VA regulations. In the case that a Nehmer class member dies before receiving the payment of retroactive benefits (while the case is still under a Nehmer review), the VA will award 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

The benefit of the Nehmer laws is that the VA is obligated to re-adjudicate claims when a new condition is added to the covered herbicide list. While a review of all claims related to this new condition is time-consuming and lengthy, it  provides Vietnam veterans with a new chance to obtain benefits that they deserve and often desperately need.

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  • Thank you to the firm of Hill & Ponton!! Brian Hill and his staff were able to get my 100% disability with the VA for my exposure to herbicides in Thailand. I have been fighting for this for many years and kept getting denied, after consulting with Hill & Ponton I decided to let them help me and it was the best decision I could have made. I found their professionalism to be outstanding.

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    North Carolina

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