(vii) Prostate cancer.
(viii)
Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea).
(ix) Soft-tissue sarcoma (as defined in § 3.309(e)).
(c) Effective date of disability compensation. If a Nehmer class member is entitled to disability compensation for a
covered herbicide disease, the effective date of the award will be as follows:
(1) If VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985
and May 3, 1989, the effective date of the award will be the later of the date VA received the claim on which the prior denial
was based or the date the disability arose, except as otherwise provided in paragraph (c)(3) of this [*50971] section. A prior
decision will be construed as having denied compensation for the same disease if the prior decision denied compensation for
a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded.
Minor differences in the terminology used in the prior decision will not preclude a finding, based on the record at the time
of the prior decision, that the prior decision denied compensation for the same covered herbicide disease.
(2) If the class member's claim for disability compensation for the covered herbicide disease 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 establishing
a presumption of service connection for the covered disease, the effective date of the award will be the later of the date
such claim was received by VA or the date the disability arose, except as otherwise provided in paragraph (c)(3) of this section.
A claim will be considered a claim for compensation for a particular covered herbicide disease if:
(i) The claimant's application and other supporting statements and submissions may reasonably be viewed, under the standards
ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disability;
or
(ii) VA issued a decision on the claim, between May 3, 1989 and the effective date of the statute or regulation establishing
a presumption of service connection for the covered disease, in which VA denied compensation for a disease that reasonably
may be construed as the same covered herbicide disease for which compensation has been awarded.
(3) If the class member's claim referred to in paragraph (c)(1) or (c)(2) of this section was received within one year
from the date of the class member's separation from service, the effective date of the award shall be the day following the
date of the class member's separation from active service.
(4) If the requirements of paragraph (c)(1) or (c)(2) of this section are not met, the effective date of the award shall
be determined in accordance with §§ 3.114 and 3.400.
(d) Effective date of dependency and indemnity compensation (DIC). If a Nehmer class member is entitled to DIC for a
death due to a covered herbicide disease, the effective date of the award will be as follows:
(1) If VA denied DIC for the death in a decision issued between September 25, 1985 and May 3, 1989, the effective date
of the award will be the later of the date VA received the claim on which such prior denial was based or the date the death
occurred, except as otherwise provided in paragraph (d)(3) of this section.
(2) If the class member's claim for DIC for the death 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 establishing a presumption of service connection
for the covered herbicide disease that caused the death, the effective date of the award will be the later of the date such
claim was received by VA or the date the death occurred, except as otherwise provided in paragraph (d)(3) of this section.
In accordance with § 3.152(b)(1), a claim by a surviving spouse or child for death pension will be considered a claim
for DIC. In all other cases, a claim will be considered a claim for DIC if the claimant's application and other supporting
statements and submissions may reasonably be viewed, under the standards ordinarily governing DIC claims, as indicating an
intent to apply for DIC. |
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