In 1996, VA received the second NAS report under the Agent Orange Act of 1991. Based on new information
contained in that report, VA issued regulations on November 7, 1996 establishing presumptions of service connection for prostate
cancer and acute and subacute peripheral neuropathy. In 2001, based on new information in a later NAS report, VA established
a presumption of service connection for type 2 diabetes effective July 9, 2001.
In 2000, the parties to the Nehmer case disagreed as to whether the retroactive-payment provisions of the Nehmer stipulation
and order applied to all eight diseases that were associated with herbicide exposure at that time (type 2 diabetes had not
yet been recognized) or only to the seven diseases that were presumptively service connected based on the Agent Orange Act
of 1991, Pub. L. 102-4, and the first NAS report under that statute. The plaintiffs argued that the stipulation required VA
to pay retroactive benefits for all diseases that are service connected at any time under the Agent Orange Act of 1991, Pub.
L. 102-4. VA argued that the stipulation required retroactive payment only for disease service connected based on the first
NAS report, and that the broader interpretation urged by the plaintiffs was contrary to the Agent Orange Act of 1991, Pub.
L. 102-4 and 38 U.S.C. 5110(g).
In a December
12, 2000 order, the district court held that the stipulation and order required VA to give retroactive effect to all regulations
issued under the Agent Orange Act of 1991, Pub. L. 102-4. VA appealed that order to the United States Court of Appeals for
the Ninth Circuit. On April 1, 2002, the Court of Appeals affirmed the district court's order.
Purpose of This Rule
We
propose to issue a new regulation, to be codified at 38 CFR 3.816, to explain the rules VA is required to apply as a result
of the court orders in the Nehmer case. Those rules are complex and are not reflected in any current statute or regulation.
Moreover, the public may have difficulty accessing and understanding the court orders establishing those rules. Accordingly,
we believe a regulation explaining the Nehmer rules is necessary to provide guidance to VA personnel as well as to VA claimants
and their representatives.
To the extent the rules required by the Nehmer court orders depart from the generally-applicable rules in 38 U.S.C.
5110(g) and 5121(a), they are judicially-created exceptions to those general rules. VA is required to comply with the Nehmer
court orders. In order to clarify the basis for this regulation, we propose to state, in § 3.816(a), that these rules
are required by the Nehmer court orders.
Definitions
The effective-date rules required
by the Nehmer court orders apply only to members of the plaintiff class certified by the district court in that case. In a
1987 order, the district court ruled that the Nehmer class would consist of all veterans and their survivors who have applied
for VA benefits for disability or death due to exposure in service to an herbicide containing dioxin or who would become eligible
in the future to apply for such benefits. Accordingly, any Vietnam veteran would potentially be a Nehmer class member, as
would any survivors of such veteran who would be eligible to apply for DIC. The effective-date provisions of this rule would
apply only to class members entitled to disability compensation or DIC for disability or death due to a disease associated
with herbicide exposure. Accordingly, for purposes of this rule, we propose to define a "Nehmer class member" as
a Vietnam veteran who has a covered herbicide disease, or a surviving spouse, child, or parent of a deceased Vietnam veteran
who died from a covered herbicide disease.
The effective-date
rules required by the Nehmer court orders apply only to benefits for disability or death caused by a disease for which VA
has established a presumption of service connection under the Agent Orange Act of 1991, Public Law 102-4. For purposes of
this rule, we propose to use the term "covered herbicide disease" and to define that term to mean a disease for
which the Secretary of Veterans Affairs has established a presumption of service connection before October 1, 2002 pursuant
to the Agent Orange Act of 1991, Public Law 102-4, excluding chloracne. As explained below in this notice, the effective-date
rules of the Nehmer stipulation and court orders apply only to diseases for which a presumption of service connection is established
under the authority granted by the Agent Orange Act of 1991, Public Law 102-4. Because the authority granted by that Act at
the time the stipulation was entered extended only until September 30, 2002, any presumptions established after that date
based on other legislative grants of rule-making authority are not within the scope of the Nehmer stipulation and court orders.
