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Updated Nov 12, 2024

In This Section

 
This section contains the following topics:
 
Topic
Topic Name
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 1. General Information on the Nehmer Stipulation

 

Introduction

  
This topic contains general information on the Nehmer stipulation, including

Change Date

  
July 29, 2021

 

VIII.i.2.B.1.a.  Nehmer Stipulation Background

  
The historical version of 38 CFR 3.311a, which became effective on September 25, 1985, was the first Department of Veterans Affairs (VA) regulation to provide guidance for the adjudication of claims based on exposure to dioxin.
 
In February 1986, a class action suit entitled Nehmer v. United States Veterans Administration, No. C86-6160 THE (N.D. Cal.), was filed in the U.S. District Court for the Northern District of California. 
 
On May 3, 1989, the District Court invalidated a portion of the historical 38 CFR 3.311a.  All denials after September 24, 1985, that were based on 38 CFR 3.311a were voided, and a moratorium was placed on further denials.  The moratorium was lifted on February 15, 1994.
 
On September 24, 2003, a new regulation, 38 CFR 3.816, was added to provide guidance in the adjudication of claims under the Nehmer litigation.
 
Reference:  For more information on the Nehmer stipulation, see the Nehmer Training Guide.

VIII.i.2.B.1.b.  Nehmer Class Member Categories

  
Nehmer class members under 38 CFR 3.816 include a
  • Veteran who has a covered herbicide disease, and
  • surviving spouse, child, or parent of a deceased Veteran who died as the result of a covered herbicide disease.

VIII.i.2.B.1.c.  Definition:  Covered Herbicide Disease

  
A covered herbicide disease under 38 CFR 3.816 means a disease for which VA has established a presumption of SC under the Agent Orange Act of 1991. 
 
Exception:  Chloracne is not a covered herbicide disease under 38 CFR 3.816.
 
The covered herbicide diseases under 38 CFR 3.816 are
  • amyloid light-chain (AL) amyloidosis
  • ischemic heart disease, including, but not limited to,
    • acute, subacute, and old myocardial infarction
    • atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery
    • stable, unstable, and Prinzmetal’s angina, and
    • ischemic cardiomyopathy
  • all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia)
  • Parkinson’s disease
  • early-onset 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 (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma), as defined in 38 CFR 3.309(e)
  • Type 2 diabetes, also known as Type II diabetes mellitus or adult-onset diabetes
  • Parkinsonism
  • bladder cancer, and
  • hypothyroidism.

Note:  If it is unclear whether a diagnosis qualifies as one of the diseases listed in 38 CFR 3.309(e), request clarification from a qualified examiner.
 

VIII.i.2.B.1.d.  What Constitutes a Claim Under Nehmer

  
There is no requirement that a Nehmer class member file a new claim or a claim for an earlier effective date in order for VA to award a retroactive effective date under Nehmer when a new presumptive condition is added by a regulation. 
 
VA must search its records to find eligible claimants and award benefits, without action on the claimant’s part.
 
A claim meeting the eligibility requirements of Nehmer can be any of the following:
Important:  If, at the time of a prior decision on any compensation claim, VA had medical evidence containing a diagnosis of a now-covered condition (for example, IHD), then the condition is considered to have been part of the previously decided claim.
 
Notes:
  • An initial claim may lack specific details, which were clarified by later submissions.
  • Live pension claims must be treated as SC claims.
  • Death pension claims must be treated as DIC claims.
  • Prior to March 24, 2015, a claim for service-connected (SC) burial benefits must be treated as an informal DIC claim in certain circumstances. 
References:  For more information on
  • what constitutes a claim under Nehmer, see the Nehmer Training Guide, and
  • treating a claim for pension as a claim for disability compensation, see 38 CFR 3.151.

VIII.i.2.B.1.e.  Entitlement to Benefits Under 38 CFR 3.816

  
A Nehmer class member is entitled to compensation under 38 CFR 3.816 if
  • the evidence establishes a diagnosis of a covered herbicide disease, and
  • a claim for SC for a covered herbicide disease, or DIC based on death caused by a covered herbicide disease, was
    • denied in a decision issued between September 25, 1985, (or a date prior if the claim or legacy appeal was pending on that date) and the date VA published the final regulation acknowledging the covered herbicide disease
    • pending on the date of the final regulation
    • inferred between September 25, 1985, (or a date prior if the claim or legacy appeal was pending on that date) and the date VA published the final regulation, or
    • received between September 25, 1985, (or a date prior if the claim or legacy appeal was pending on that date) and the date VA published the final regulation.
Important: 
  • By definition, if a case falls under Nehmer, it means that the first claim (expressed or inferred by the evidence) of SC for the condition at issue was received before the condition was added to the list of herbicide-related disabilities and the effective date for the award of SC will also be before the condition was added to the list of herbicide-related disabilities.
  • If a claim of SC for the condition was received after the disease was added to the presumptive list, it is not a Nehmer case.  In those cases, refer to M21-1, Part VIII, Subpart i, 1.B.4.a for discussion of other potentially applicable effective date provisions.
References:  For more information on
 

2. Effective Date Determinations Under the Nehmer Stipulation

 

Introduction

  
This topic contains information on effective date determinations under the Nehmer stipulation, including

VIII.i.2.B.2.a.  Effective Dates of Awards of Disability Compensation Under 38 CFR 3.816

  
The effective date of disability compensation under 38 CFR 3.816 is the date of receipt of the claim on which the prior denial was based, or the date entitlement arose, whichever is later.
 
Exception:  If VA received the prior claim for compensation within one year after the Veteran’s separation from service, the effective date of compensation would be governed by 38 CFR 3.400(b)(2).
 
Important:  In addition to reviewing claims based on prior denial of a covered disease, review the claims folder for rating decisions that previously awarded SC to a Veteran for a covered disease on a basis other than Nehmer entitlement prior to the date of the regulation adding presumptive SC for that covered disease.  In such cases, consider entitlement to an earlier effective date in accordance with Nehmer.  Review the previous decision for evidence of an award of benefits for a covered disease
  • as secondary to an SC condition in which effective date provisions applicable to Nehmer cases were not considered
  • on the basis of aggravation of the previously non-service-connected covered disease by an existing SC disability in which effective date provisions applicable to Nehmer cases were not considered or in which entitlement to an increased evaluation is warranted on Nehmer grounds due to previous reduction based on the aggravation basis
  • on a direct basis in which effective date provisions applicable to Nehmer cases were not considered, and
  • under the retroactive provisions of 38 U.S.C. 1116A based on service in the qualifying offshore waters.

Notes: 

  • The provisions of 38 CFR 3.114(a), which limit effective dates to no earlier than the date of a liberalizing law or issue, do not apply to benefits awarded under 38 CFR 3.816.
  • Whatever the effective date, the actual payment of benefits commences on the first day of the following month in accordance with 38 CFR 3.31.
  • In all cases, the condition must have been present on the effective date from which SC is awarded.  An award of SC is not allowed prior to a confirmed diagnosis of the covered disease.

VIII.i.2.B.2.b.  Example 1 on Establishing a Retroactive Effective Date Under Nehmer:  Initial Claim Denied After September 25, 1985

  
Situation:  The Veteran’s initial claim for SC for lung cancer was received on August 4, 1985, and denied on November 19, 1985.  Medical evidence showed a diagnosis of lung cancer in July 1985.  The Veteran reopened his claim in March 2001. 
 
Result:  Establish SC for lung cancer effective the date the initial claim was received, August 4, 1985.
 
Rationale:  Since the initial claim for SC for a covered herbicide disease was denied after September 25, 1985, and the evidence establishes a diagnosis prior to the date the initial claim was received, SC may be established from the date the initial claim was received, per 38 CFR 3.816. 
 
Note:  If the claim had been denied, to include any legacy appeals, before September 25, 1985, it would be unaffected by the Nehmer stipulation, and the effective date would be governed by 38 CFR 3.114(a).

VIII.i.2.B.2.c.  Example 2 on Establishing a Retroactive Effective Date Under Nehmer:  Initial Claim Received Prior to the Effective Date of the Law Establishing a Presumption of SC

  
Situation:  The Veteran’s initial claim for SC for lung cancer was received on October 14, 1992, and denied on December 23, 1992.  Medical evidence showed a diagnosis of lung cancer in September 1992.  The Veteran reopened his claim in March 2001.
 
Result:  Establish SC for lung cancer effective the date the initial claim was received, October 14, 1992.
 
Rationale:  Since the claim was received prior to June 9, 1994, the effective date of the law establishing a presumption of SC for lung cancer under 38 CFR 3.309(e), and the evidence establishes a diagnosis prior to the date the initial claim was received, SC may be established from the date the initial claim was received, per 38 CFR 3.816.      

VIII.i.2.B.2.d.  Example 3 on Establishing a Retroactive Effective Date:  Claim for DIC Received Within One Year of the Veteran’s Death

  
Situation:  On November 3, 1986, a Veteran who served in the Republic of Vietnam (RVN) during the Vietnam era died from Hodgkin’s disease.  His surviving spouse’s claim for DIC benefits was received on December 10, 1986, and denied on February 12, 1987.  The surviving spouse reopened her claim on March 15, 1993.
 
Result:  Establish entitlement to DIC benefits from November 1, 1986, the first day of the month in which the Veteran died.
 
Rationale:  Since the claim for DIC benefits was received within one year of the Veteran’s death, the effective date is governed by 38 CFR 3.400(b)(2).

VIII.i.2.B.2.e.  Handling Claims for a Covered Disease That Do Not Specifically Mention Herbicide Exposure

  
Under a February 11, 1999, order by the District Court, a claim for disability compensation or DIC that is received from a Nehmer class member for a covered disease does not have to specifically mention herbicide exposure or assert that the condition was caused by exposure to herbicides in order to qualify as a Nehmer claim.

VIII.i.2.B.2.f.  Example:  Establishing an Effective Date for a Claim in Which Exposure to Herbicides Is Not Specifically Mentioned 

  
Situation:  A Veteran who served in the RVN during the Vietnam era filed a claim in 1994, expressly alleging that his prostate cancer was caused by exposure to ionizing radiation before the Veteran’s service in Vietnam.  VA denied the claim in 1995.  The Veteran reopened the claim in 1997 and SC was established on the basis of herbicide exposure. 
 
Result:  Based on these facts, the effective date must relate back to the 1994 claim, even though the Veteran alleged a different basis for SC.

VIII.i.2.B.2.g.  Handling Claims for Type 2 Diabetes Mellitus as Related to Herbicide Exposure

  
Effective May 8, 2001, Type 2 diabetes mellitus became subject to presumptive SC under 38 CFR 3.309(e).  Retroactive benefits under the Nehmer review may be warranted for claims filed or denied during the period September 25, 1985, to May 7, 2001.
 
If a prior claim did not involve SC for Type 2 diabetes mellitus, there generally exists no basis for assigning an earlier effective date.  However, a lack of specificity in the initial claim may be clarified by later submissions.

VIII.i.2.B.2.h.  Example 1:  Claim for SC for Type 2 Diabetes Mellitus

  
Situation:  In January 1987, a Veteran filed a claim for SC for hyperglycemia.  In developing the claim, VA obtained medical records indicating that the Veteran was diagnosed with Type 2 diabetes mellitus in February 1987. 
 
Result:  Based on these facts, it would be reasonable to treat the January 1987 claim as a claim for SC for Type 2 diabetes mellitus. 
 
Rationale:  Under Nehmer, benefits may be paid retroactive to the date the initial claim was received or the date the disability arose as determined by the facts of the case, whichever is later.

VIII.i.2.B.2.i.  Example 2:  Claim for SC for Type 2 Diabetes Mellitus

  
Situation:  In 1995, a Veteran filed a claim for SC for hyperglycemia.  Medical records obtained by VA indicated that the Veteran did not have Type 2 diabetes mellitus.  In 2001, the Veteran filed a second claim for SC for Type 2 diabetes mellitus, submitting evidence showing that the condition was diagnosed in 1996. 
 
Result:  Based on these facts, the 1995 claim is not considered a claim for SC for Type 2 diabetes mellitus.
 
Rationale:  Neither the claim nor the evidence of record (when the 1995 claim was processed) indicated the Veteran had been diagnosed with Type 2 diabetes mellitus.
 
 
 

3. Preparing a Rating Decision Under the Nehmer Stipulation

 

Introduction

  
This topic contains information on preparing a rating decision under the Nehmer stipulation, including

Change Date

  
July 29, 2021

 

VIII.i.2.B.3.a.  Rating Considerations in Nehmer Claims

  
When preparing a decision under the Nehmer stipulation consider the following:
  • All Nehmer decisions must follow the long-form narrative format as outlined in M21-1, Part V, Subpart iv, 1.A.7.
  • All Nehmer-related ratings must undergo a review by a Nehmer rating subject matter expert (SME).
  • Nehmer decisions will be stand-alone documents, as they will be reviewed without the claims folder by others as well as class counsel. 
    • Class counsel will not have the claims folder during their review; therefore, it is crucial all evidence pertinent to the presumptive condition(s) is listed and properly discussed in the decision.
    • Because Nehmer decisions are subject to review by other entities, including class counsel, it is also imperative that they only address Nehmer-related contentions/issues.
Reference:  For more information on preparing a rating decision, see M21-1, Part V, Subpart iv, 1.A.

VIII.i.2.B.3.b.  Information to Include in the Rating Decision for Any Nehmer Rating

  
When completing a rating decision under the Nehmer guidelines, include the following entry in the Evidence section:
 
All evidence contained in the claims file prior to [date], which is the earliest date a claim for Nehmer purposes was received in VA.
 
In the decision narrative, include the following:
 
The VA has conducted a de novo review of your entire claims file to determine the earliest date of claim per 38 Code of Federal Regulations 3.816 pertaining to awards under the Nehmer Court Order.  The evidence of record shows the earliest claim for Nehmer purposes was [cite controlling claim document] received by VA on [cite date of record].  No evidence in the record received prior to [cite date of record] relates to any claimed disability that could reasonably be construed as an Agent Orange-related disability affected by the Nehmer Court Order.

VIII.i.2.B.3.c.  Information to Include in the Rating Decision When Awarding Retroactive Benefits Under Nehmer

  
In all Nehmer claims in which the claimant is entitled to a retroactive award, insert the following language in the diagnosis text in the coded conclusion of the rating decision:  (Nehmer granted).
 
Example:  7005 Coronary Artery Disease (Nehmer granted)

VIII.i.2.B.3.d.  Consideration of Entitlement to a Rating for TDIU in Claims in Which Pension Was Previously Awarded

  
Consider entitlement to a rating for total disability based on individual unemployability (TDIU) in Nehmer claims in which Veterans Pension was previously awarded.  In making the determination of entitlement to TDIU, review the claims folder to determine if the Nehmer presumptive condition is the primary reason for the Veteran being unemployable/entitled to Veterans Pension.
 
TDIU should be awarded in the following instances without additional development:
  • Veterans who are currently in receipt of Veterans Pension are shown to be considered not gainfully employed on account of the Nehmer disability, and
  • Veterans who are currently in receipt of Social Security Administration benefits or Social Security disability for a Nehmer disability.

Important: 

  • If it is unclear whether or not the Veteran is gainfully employed, it is necessary to confirm his/her employment history prior to awarding a rating for TDIU.
  • ROs are not required to refer Nehmer cases to the Director, Compensation Service, prior to awarding TDIU for herbicide-related diseases under 38 CFR 4.16(b) that previously served as the bases for extra-schedular pension awards under 38 CFR 3.321(b)(2) and 38 CFR 4.17(b).

Reference:  For more information on TDIU, see

VIII.i.2.B.3.e.  Evaluations Previously Assigned for Pension Purposes

  
Evaluations assigned for pension purposes are binding, as described in 38 CFR 3.104, on subsequent decisions to award SC compensation for the same disability.  If granting SC retroactively under the Nehmer stipulation, do not grant a lower evaluation based on the same evidence used to assign the pension evaluation.

VIII.i.2.B.3.f.  Second Signature Requirement for Nehmer Rating Decisions

  
All Nehmer rating decisions require two signatures and must undergo a review by an SME prior to being processed.
 
Reference:  For more information on two-signature ratings, see M21-1, Part V, Subpart iv, 1.B.7.