An Imperative Legal Rule in Agent Orange Cases: The Correct Application of Nehmer. 

By: Gregg G. Festa Jr., J.D. Candidate 

For Veterans of the Vietnam Era, the exposure to Agent Orange has resulted in a multitude of health complications, often in a high degree of severity.  As such, this has constituted a particularly high volume of veterans’ disability claims over the course of recent history. Unfortunately, many cases in the past have been denied by the Department of Veterans Affairs due to a lack of contemporary medical evidence to illustrate a casual relationship between claimed conditions and in-service exposure to the herbicide. 

However, in the recent course of medical study, factual data proves that there is a more than sufficient medical link between many illnesses and exposure to Agent Orange, that is so prevalent that VA acknowledges these conditions as presumptive. Some notable conditions include bladder cancer, diabetes mellitus type II, hypertension, and many others which can be found on the VA’s website here: 

Agent Orange Exposure And VA Disability Compensation | Veterans Affairs 

Due to this, Veterans’ Disability cases pertaining to Agent Orange Herbicide Exposure raise a particular legal component that factors into the consideration of retroactive compensation benefits. This legal component is the precedent set by Nehmer v. Department of Veterans Affairs  No. CV-86-6160 TEH (N.D. Cal.), which was a class action lawsuit brought against the VA challenging regulations pertaining to diseases associated with Agent Orange and VA claims that had been wrongfully denied. This lawsuit resulted in court-ordered provisions that have a major impact on the VA’s duties when evaluating claims and appeals that have been filed for conditions related to Agent Orange Exposure. We must preface with the fact that this only pertains to conditions that the VA has conceded to be presumptive.  This rule has been adopted as a legal remedy to provide maximum VA disability compensation for those wrongly exposed to Agent Orange with presumptively linked illnesses.

The components of this provision derive from the decision of the class action lawsuit. Pursuant to the court-ordered decision, the application of this precedent is now found under 38 CFR § 3.816.  As cited in 38 CFR § 3.816, statutory provisions pertain to the effective date for VA Disability Compensation, retroactive benefits, and eligibility for DIC claimants, and retroactive benefits of deceased beneficiaries to be paid to survivors or estates. Under these provisions, a VA Claim for disability benefits for a presumptive condition associated with Agent Orange exposure must be awarded to the date of the original claim, regardless of the date of appeal. Therefore, if you re-open a VA case pertaining to a matter, the date of award will be the date of the original claim, not the date of appeal. However, this only pertains to claims that were denied before legislation prompted the presumption of conditions associated with Agent Orange. For example, hypertension became recognized as a presumptive condition by the VA in 2021. If you were denied service connection for this condition prior to 2021, you can appeal that decision and it will be granted and back-dated to the date you filed your original claim for disability compensation. The VA must retroactively back pay past-due benefits. This rule is applicable for any presumptive condition that has been previously denied by the VA. Furthermore,  as defined in Section F of 38 CFR § 3.816, “If a Nehmer class member entitled to retroactive benefits pursuant to paragraphs (c)(1) through (c)(3) or (d)(1) through (d)(3) of this section dies prior to receiving payment of any such benefits, VA shall pay such unpaid retroactive benefits to the first individual or entity listed below that is in existence at the time of payment.” This also means that surviving spouses are entitled to retroactive benefits for wrongfully denied by the VA in Agent Orange cases. 

The provisions of Nehmer constitute a special review of all Agent Orange cases that the VA must comply with. Upon adjudication of a VA Claim that falls under the provision, the VA must evaluate the entirety of the claim history and establish the earliest date the claim was filed. Upon establishing that date, the VA must assign retroactive benefits sought on appeal to that date. If the VA assigns benefits to the date the appeal was filed, and not the date of the original application, they may have erred under the provisions of Nehmer. Additionally, if they do not issue correspondence to the claimant in an Agent Orange case that they will be conducting a review under Nehmer, they may be erroneous.  If you believe you are entitled to more disability benefits under this provision, our law firm is glad to assist and review your case.