BVA must consider Nehmer Effective Date rules
This case involves the special, and very powerful, Nehmer effective date rules. Mr. Greene, the veteran, sought an effective date for his service connected coronary artery disease.
He argued his effective date should go back to 2006, the first claim in which the VA developed evidence that he had one of the so-called "Agent Orange" presumptive conditions.
The BVA denied the earlier effective date, without ever considering the unique Nehmer effective date rules.
The appeal was resolved through a joint motion to remand, after the Secretary's attorney was forced to concede that the BVA erred in failing to consider the Nehmer effective date rules.
ISSUE ON APPEAL TO THE CAVC:
The Veteran served in the Republic of Vietnam during the Vietnam War and is a Nehmer class member.
Nehmer class members are entitled to a number of special effective date rules for conditions service connected as related to herbicide (including Agent Orange) exposure.
Did the BVA err when it failed to consider whether Mr. Greene's 2006 claim for service connection of his kidney condition included a claim to service connect coronary artery disease for effective date purposes.
RESOLUTION AT THE CAVC.
The OGC agreed that the BVA failed to consider Nehmer effective date rules.
This is a common BVA mistake. While there are several complicated Nehmer effective date rules, there is one that is clear.
It is called, among veterans advocates, the "Nehmer Footnote 1" effective date rule because it appears in Footnote 1 of the Nehmer Stipulations.
Here's the background of the Nehmer effective date rules.
The Veterans’ Dioxin and Radiation Exposure Compensation Standards Act (“Dioxin Act”) requires VA to provide compensation to Vietnam veterans exposed to herbicides containing dioxin who develop enumerated diseases. See Pub. L. 98-452, 98 Stat. 2725 (1984).
VA’s failures in implementing the Dioxin Act resulted in the Nehmer class action litigation. See Nehmer, 712 F. Supp. 1404.
As a result of that litigation, the parties entered into a final stipulation in May 1991 (Stipulation). See Final Stipulation and Order, Nehmer v. United States Veterans’ Admin., No. CV-86-6160 (N.D. Cal. May 14, 1991).
Those final stipulations were partially codified into regulations found at 38 C.F.R. §3.816.
It is the position of Attig | Steel that the totality of the Final Stipulation and Order was not included in the VA's regulations, and as a result, Nehmer class members have protections that extend beyond those regulations.
Here's how the Nehmer Footnote 1 effective date rule works:
A class member who previously filed a claim for a subsequently covered condition is entitled to an effective date as of the date that prior claim was filed or the date the disability began, whichever is later. See Nehmer Final Stipulation and Order at ¶ 5.; see also 38 C.F.R. § 3.816(c).
A claim is deemed to exist if, at the time of any prior decision, “VA had medical evidence containing a diagnosis of a now-covered condition.” VA Training Letter 10-04 (Nehmer Training Guide, at p. 19.)
The Nehmer Training Guide explains the question facing adjudicators succinctly:
“If a presumption of service connection for IHD [had] existed at the time of a prior RO decision on a different disability, would VA have inferred and granted [service connection] for IHD because it then had evidence of the disease?”
If so, then there was a claim for that condition for Nehmer effective date purposes.
In this case, the veteran filed a claim for service connection of his kidneys and lower back disability in April 2006. Medical records developed during that claim were replete with references to a diagnosis of and treatment for coronary artery disease.
By operation of Footnote 1 in the Nehmer Final Stipulation and Order, the denial of the claims to service connect the kidney and lower back conditions constituted a denial of service connection for coronary artery disease.
Because the BVA did not even discuss this powerful and well-known Nehmer effective date rule, the BVA erred, requiring its decision be vacated and sent back for the BVA to fix.
If you are a Nehmer class member, and feel like the VA gave you the wrong effective date, click here to have Attig | Steel take a look at your case.
OGC Attorney: Jonathan Z. Morris (link to attorney's bio on LinkedIn)
Veteran Representation at CAVC: Chris Attig (link to bio)
Board of Veterans Appeals Veterans Law Judge: Nathaniel J. Doan (link to attorney's bio on FederalPay.org)
Vets’ Rep at BVA: Illinois Department of Veterans Affairs
Date of BVA Decision: September 19, 2018
Date of CAVC Joint Motion to Remand: September 6, 2019