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Updated May 25, 2023

In This Section

 
This section contains the topic, “Authorization Under the Nehmer Stipulation.” 

 

 

1.  Authorization Under the Nehmer Stipulation

 
 

Introduction

 
This topic contains information on authorization actions under the Nehmer stipulation, including

Change Date

 
May 25, 2023

VIII.i.2.C.1.a.  Determining the Proper Survivor of a Nehmer Class Member for Payment Purposes

 
If a Nehmer class member entitled to retroactive benefits under 38 CFR 3.816(c) and (d) dies before receiving the payment of retroactive benefits, the Department of Veterans Affairs (VA) will, consistent with 38 CFR 3.816(f), award the unpaid benefits to the first individual or entity in existence at the time of payment in the following order:
  • spouse at the time of death, regardless of current marital status
  • child or children, divided into equal shares if more than one child exists, regardless of age or marital status
  • parents, with half of the retroactive benefits owed paid to each parent, regardless of dependency status, or
  • the class member’s estate. 
Note:  The survivor or estate of a Nehmer class member is not required to file an application in order to receive unpaid benefits.
 
Important:  Under the Nehmer claims process, if a Veteran dies while the claim is pending, the surviving spouse is automatically substituted as the claimant or payee by virtue of being a “class member” entitled to retroactive compensation.
 
Reference:  For more information on determining eligibility to retroactive payment under the Nehmer stipulation, see M21-1, Part VIII, Subpart i, 2.B.

VIII.i.2.C.1.b.  Identifying the Appropriate Survivor of a Nehmer Class Member

 
Review the entire claims folder to determine eligible survivor payees.  Some sources of this information include, but are not limited to,
  • benefit applications
  • statements from the Veteran
  • Compensation and Pension Record Interchange records
  • Share inquiries and corporate database review
  • claims-processing system notes
  • Participant Profile
  • CLEAR reports, and
  • contact with, if known or applicable,
    • authorized representatives of record
    • individuals who provided first notice of death, and
    • funeral homes that provided funeral/burial services.

VIII.i.2.C.1.c.  Actions to Take When the Appropriate Survivor of a Nehmer Class Member Cannot Be Located

 
Use the table below to determine the actions to take when the appropriate survivor of a deceased Nehmer class member cannot be located.
   
If …
Then …
the claims folder and/or system inquiries do not contain sufficient information to identify an eligible survivor
  • send a development letter to the last known address of the Veteran, requesting the names, addresses, and contact information of existing survivors or potentially eligible payees, and
  • wait 30 days for a response.
the claims folder identifies an authorized representative or relative
contact this person for information on the existence/address of a surviving spouse, child(ren), parent(s), or the executor/administrator of the class member’s estate.
  • VA has identified an eligible survivor
  • the survivor’s address is unknown, and
  • the survivor’s phone number is of record
attempt to contact the survivor by telephone to obtain an address.
  • VA has identified an eligible survivor
  • the survivor’s address is unknown, and
  • attempts to obtain the address from the survivor have been unsuccessful
  • send a development letter to the last known address of the Veteran and/or survivor, requesting the names, addresses, and contact information of existing survivors or potentially eligible payees, and
  • wait 30 days for a response.
all the above-discussed methods of developing to identify/locate an eligible survivor prove unsuccessful
  • enter a note in the claims-processing system, indicating that it was not possible to locate any payee eligible for payment under Nehmer, and
  • follow the required documentation procedures found in M21-1, Part VIII, Subpart i, 2.C.1.d.
 

VIII.i.2.C.1.d.  Requirement to Document Efforts Taken to Identify a Potential Payee

 
Document all efforts taken to identify a potential payee on VA Form 27-0820, Report of General Information, for inclusion in the claims folder. 
  • On the VA Form 27-0820, summarize the actions taken to identify a potential payee.
  • If retroactive benefits are not payable to the potential payee, describe on the form the reason(s) why. 
Important: 
  • Prepare a separate VA Form 27-0820 for each potential payee with whom contact is attempted or made.
  • Claims processors must take the actions described in this block, as the Nehmer court order mandates that VA notify class counsel for National Veterans Legal Services Program if VA is unable to identify a payee.

VIII.i.2.C.1.e.  Identifying Other Survivors of a Nehmer Class Member Before Awarding Benefits to an Identified Payee

 
Before awarding benefits to an identified payee, ask the payee to state whether or not there are any other survivors of the Nehmer class member who may have an equal or greater entitlement to unpaid benefits.
 
If it appears other survivors exist that may be eligible for unpaid benefits, send letters to all dependents of record, requesting their 
  • names
  • addresses, and
  • telephone numbers.

Notes:

  • If potential entitlement to burial benefits and/or Dependency Indemnity Compensation (DIC) exists, invite a claim by sending a survivor the proper prescribed claim form(s) identified in M21-1, Part II, Subpart iii, 1.A.1.a.
  • As noted in M21-1, Part XII, Subpart i, 4.B.1.h, a service-connected (SC) burial allowance may be awarded to a surviving spouse without a claim when DIC is otherwise granted.
Important: 
  • A rating decision must be completed even in cases where no payee has been identified.
  • Proof of a familial relationship to the Nehmer class member must be of record before VA may pay retroactive benefits to a survivor.  Undertake development to obtain birth certificates, marriage certificates, or other documentary proof of a familial relationship, as applicable.

VIII.i.2.C.1.f.  Considering Entitlement to Additional Allowances for a Surviving Spouse

 
When preparing an award of unpaid benefits to the surviving spouse of a deceased Nehmer class member, consider any additional allowances to which the surviving spouse may be entitled, including, but not limited to, an additional allowance 
  • for dependents
  • because the class member was totally disabled due to SC disabilities for a continuous period of at least eight years prior to death, and the surviving spouse was married to the class member during the same time period, and/or
  • because the surviving spouse requires the aid and attendance of another person.

VIII.i.2.C.1.g.  Awards to Nehmer Class Members Who Receive(d) MRP

  
Use the table below when taking award action under Nehmer on a Veteran who received military retired pay (MRP).
   
If awarding benefits under Nehmer to a(n) …
Then …
Veteran
  • surviving spouse
  • child
  • parent, or
  • estate of the deceased Veteran
follow the steps in the table below for benefits awarded under Nehmer.
  
Step
Action
1
Follow the steps in M21-1, Part XI, Subpart ii, 3.E.3.e, and when Step 6 applies, replace those procedures with the steps below.
2
Prepare an award line spreadsheet using the Nehmer AskDFAS CCP-ACCR template.
3
Send the completed spreadsheet via encrypted e-mail to the regional office’s designated Defense Finance and Accounting Service (DFAS) liaison.
4
Once reviewed for accuracy, the DFAS liaison submits a DFAS ticket as outlined in the AskDFAS Submission Guide and completes the following steps:
  • returns any award that would otherwise reflect a Pending Authorization status
  • establishes a standard tracked item for Military Retired Pay Information, and
  • reverts the claim status to Open.
5
Take final action on the claim when one of the following is received:
  • if warranted, an Audit Error Worksheet (AEW), or
  • notice that no AEW is forthcoming.
    
   

VIII.i.2.C.1.h.  Payment of DIC to the Surviving Spouse of a Veteran Who Died Prior to January 1, 1993

 
If a Veteran died prior to January 1, 1993, VA pays DIC to the surviving spouse based on whichever of the following provisions provides the greatest benefit:
  • 38 U.S.C. 1311(a)(3), which is based on the Veteran’s pay grade, or
  • 38 U.S.C. 1311(a)(1) and 38 U.S.C. 1311(a)(2), which is based on
    • the basic rate of DIC, and
    • any additional allowance payable due to the Veteran being
      • rated as totally disabled for at least eight continuous years prior to death, and
      • married to the surviving spouse for the same period of time.
Important: 
  • Grant entitlement to DIC when a disability for which VA granted service connection (SC) on a presumptive basis was the primary, secondary, or a contributory cause of death.
  • The pay grade of Veterans that died prior to January 1, 1993, must be verified with service documents.
  • Verification of a Veteran’s pay grade is not required when awarding DIC
    • to children or parents, or
    • if the Veteran died on or after January 1, 1993.

VIII.i.2.C.1.i.  Authorization Activity Responsibility to Determine the Effective Date of an Award of DIC

 
The authorization activity has sole jurisdiction in determining the effective date for DIC awards.
  
If VA receives a claim for DIC within one year of the Veteran’s death, the proper effective date for the corresponding award is the first day of the month of the Veteran’s death.  Otherwise, the proper effective date is the first of the month following the date VA received the claim.
  
Exception:  Per 38 CFR 3.816(d)(2), if a survivor’s claim for DIC was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation that established a presumption of SC for the covered herbicide disease that caused death, the effective date of entitlement is the later of the following dates:
  • the date VA received the claim (making the first of the month following the date VA received the claim the effective date of the corresponding award, after the application of 38 CFR 3.31), or
  • the date of the Veteran’s death (making the first day of the month of the Veteran’s death the effective date of the corresponding award, according to 38 CFR 3.816(d)(3)).

VIII.i.2.C.1.j.  Awards of Retroactive Benefits of $10,000 or More to Incompetent Beneficiaries

 
Carefully follow the procedures found in M21-1, Part X, Subpart ii, 6.E.1.f-j, upon identification of an award of retroactive benefits under the Nehmer court order that
  • is payable to an incompetent beneficiary (through a fiduciary or supervised direct pay), and
  • will equal or exceed $10,000.

VIII.i.2.C.1.k.  Applying a Retroactive Payment Under the Nehmer Court Order to a Debt

  
Prior to releasing a retroactive payment under the Nehmer court order, use the table below to determine whether it is appropriate to apply the payment to a debt.
 
If …
Then …
VA discharged the debt, either by
  • formally writing it off as uncollectable, or
  • failing to pursue the debt over an extended period of time
VA may not apply the retroactive payment to the debt, as it has waived its right to pursue collection of the debt.
  • the record shows VA has been pursuing the debt, regardless of whether VA has been successful, or
  • there is insufficient evidence to conclude the debt has been discharged
VA is obligated to collect the debt.
  • the Veteran is deceased
  • the debt was not recovered prior to the Veteran’s death, and
  • a claim was not filed against the Veteran’s estate within the required time period
VA may not apply the retroactive payment to the debt, as it may not impute a debt owed by one beneficiary to another beneficiary.
  • the Veteran is still alive, and
  • collection of the debt is not otherwise barred
review the DEDUCTION/RECEIVABLE/BALANCE DATA (M01) tab in Share and the Veteran’s claims folder to determine if there is an outstanding debt of record and, if so, send the claims folder to the finance activity prior to authorization of the award.
 
Note:  The finance activity will interact with the Debt Management Center to determine whether or not the debt is collectable.
 

VIII.i.2.C.1.l.  Annotating an Award of Retroactive Benefits Under the Nehmer Court Order

 
After generating an award of retroactive benefits under the Nehmer court order, claims processors must enter Nehmer retroactive payment based in the
  • Remarks section of the award print (in the Veterans Service Network), or
  • PRINT REMARKS dialog box (in the Veterans Benefits Management System – Awards).

VIII.i.2.C.1.m.  Second Signature Requirement for Award Actions Taken Under the Nehmer Court Order

 
All award actions taken and notices of decision prepared under the Nehmer court order require review by and the second signature of an authorizing subject matter expert prior to finalization.