Vietnam Veterans May Be Entitled to an Earlier Effective Date for Veterans Benefits Related to Agent Orange Exposure

How Do I Know If I Qualify For An Earlier Effective Date?

Part I: Did you serve in Vietnam and do you have a qualifying Agent Orange disability?

On May 14, 1991, the federal court of the Northern District of California issued an order, which set forth ways Vietnam veterans could receive veterans benefits for several specific disabilities related to Agent Orange exposure. This order stemmed from a case known as Nehmer v. U.S. Veterans Administration. If you served in Vietnam, you could be entitled to benefits as a result of the 1991 Nehmer Order.

In order to qualify for benefits under Nehmer, you had to have served in Vietnam. This means that you set foot in Vietnam or served on the inland waterways of Vietnam, even if it was for only a brief period of time.

Once it is clear you have served in Vietnam, the next question is whether or not you have a qualifying, presumptive disability for purposes of the Nehmer decision. The following is a list of these disabilities in Table 8-1:

• Chloracne
• Soft-tissue sarcoma (STS)
• Non-Hodkin’s Lymphoma
• Porphyria cutanea tarda
• Hodgkin’s disease
• Lung cancer
• Cancer of the larynx
• Cancer of the bronchus
• Cancer of the trachea
• Multiple myeloma
• Prostate cancer
• Acute and subacute peripheral neuropathy
• Type 2 diabetes
• Chronic lymphocytic leukemia
• Primary AL Amyloidosis
• Ischemic heart disease (Coronary Artery Disease)
• Chronic B-cell Leukemias (other than chronic lymphocytic leukemia)
• Parkinson’s disease

If you are in fact a Vietnam veteran with at least one of the conditions listed above, you may be service connected under the Nehmer decision after filing your claim. The VA recognizes such claims in three different ways:

1. You have submitted a disability compensation claim for one of the specified disabilities listed in Table 8-1;
2. You submitted a claim for a general condition not specifically identifying one of the disabilities listed in Table 8-1, but while your claim was pending you were diagnosed with a specific condition listed in Table 8-1 (i.e. you claimed heart condition and were diagnosed with ischemic heart disease) and a record of such diagnosis was placed in the VA claims file; or
3. You filed a claim for a disability not associated with Table 8-1 in any way, but you were diagnosed with a Table 8-1 disability (i.e. you claimed lumbar strain and were diagnosed with lung cancer) and such diagnosis was placed in the VA claims file.

If your case resembles any one of these three instances, the VA recognizes these as claims for purposes of the Nehmer decision and Agent Orange exposure.

Part II: Do you qualify for an earlier effective date for your Agent-Orange related disability?

If your case resembles any one of the above three instances recognized by the VA as a claim for purposes of the Nehmer decision and Agent Orange exposure, you may be entitled to an earlier effective date, which in some cases means a hefty back pay award.

In order to determine whether or not you qualify for an earlier effective date, the VA may first consider the date your claim was filed. In general, if your claim was filed after September 25, 1985, and before the publication date of the specific Table 8-1 disability, it is within the time period required by the VA for purposes of disability compensation under Nehmer. (If you did not file your claim within this time period, you may still qualify under exceptions not addressed in this article).

Generally speaking, the effective date is the date your claim was filed. However, your disability must be 10 percent disabling when the VA received your claim; otherwise, the effective date the VA awards would be the date your disability became 10 percent disabling or the day after your date of discharge. But whether the VA has actually given you the proper effective date is another question.

Here are a few examples:

You file a claim for service-connected disability on March 1, 1990, for prostate cancer (this was not listed on Table 8-1 until November 7, 1996) and VA denies service connection. On June 4, 2001, you file another claim for prostate cancer. The VA grants service connection and an effective date of June 4, 2001.

Has the VA provided the correct effective date? No, under Nehmer, your effective date for prostate cancer is the date you first filed the claim, which was March 1, 1990 (assuming your disability was 10 percent disabling at the time).

You file a claim for service-connected disability on July 9, 1986, for bilateral pes planus (flat feet). While your claim is pending, you are diagnosed with Parkinson’s disease, and a record of such diagnosis is included in your VA claims file. In 1987, VA denies service connection without addressing Parkinson’s disease. In September 2010, you find out that Parkinson’s has been added to the Table 8-1 list of presumptive disabilities and on September 28, 2010, you file a claim for service connection. In 2011, VA grants service connection for Parkinson’s effective date September 28, 2010.

Is that the correct effective date? No, under Nehmer the effective date for your claim of Parkinson’s disease goes back to the date you filed for service connection for bilateral pes planus because your diagnosis of Parkinson’s was in your VA claims file before VA issued a decision on your claim for bilateral pes planus.

If you served in Vietnam, please call the Berry Law. Veterans’ benefits law attorneys at the Berry Law are trained to assist you in determining whether you qualify for an earlier effective date under Nehmer for your Agent- Orange related disabilities. Please contact us today at 1.888.883.2483 and let us help you further develop your claims for veterans’ disability benefits.