Although chloracne is a presumptive herbicide disease, we propose to exclude it from the definition
of covered herbicide disease for purposes of this rule because claims and awards based on chloracne were not affected by any
of the Nehmer court orders. VA established a presumption of service connection for chloracne effective September 25, 1985,
and that presumption has remained in effect throughout the period relevant to the Nehmer litigation. In its May 3, 1989, order,
the district court invalidated the portion of VA's regulation providing that conditions other than chloracne were not shown
to be associated with herbicide exposure and it voided decisions made under that portion of the regulation. The court left
intact the provision establishing a presumption of service connection for chloracne and did not void any decisions involving
chloracne. Moreover, the Nehmer stipulation and order states that it applies to diseases service connected by VA "in
the future" under the Agent Orange Act of 1991, Public Law 102-4. Because chloracne had been presumptively service connected
since 1985, it was not affected by the stipulation and order.
Effective Date Rules
The
effective-date rules stated in the proposed regulation reflect paragraph 5 of the Nehmer stipulation and order. That paragraph
states separate rules governing the effective dates of awards granted upon readjudication of a claim where a prior denial
was voided by the May 3, 1989 Nehmer order and the effective dates of awards granted upon adjudication of a claim filed after
May 3, 1989.
With respect to the voided
decisions, the stipulation and order provides that the effective date of an award made upon readjudication of the claim will
be the later of the date the claim giving rise to the voided decision was filed (provided that the basis of the award is the
same basis upon which the original claim was filed) or the date the disability arose or the death occurred. The stipulation
and order states that the "basis" of the original claim refers to the disease or condition required, under provisions
of a VA procedural manual, to be coded in the VA rating decision on the claim. The stipulation and order further states that
the provisions of 38 U.S.C. 5110(b)(1) and (d)(1) will govern when applicable. Section 5110(b)(1) provides for a disability
compensation effective date corresponding to the day following the veteran's release from service if the veteran's application
is received within one year of that date. Section 5110(d)(1) provides for a DIC effective date corresponding to the first
day of the month in which death occurred if the claimant's application is received within one year from the date of death.
With respect
to claims filed after May 3, 1989, the stipulation and order provides that the effective date of benefits shall be the later
of the date VA received the claim asserting the basis upon which the claim was granted or the date the disability arose or
the death occurred.
We
propose to provide paragraphs separately explaining the application of these rules to disability compensation awards and DIC
awards. In view of the complexity of the Nehmer rules, we believe this level of detail will provide greater clarity.
Effective-Date
Rules for Disability Compensation
1. Claims by Nehmer Class Members Denied Between September 25, 1985 and May 3, 1989
Section 3.816(c)(1) states that, if a Nehmer class member is entitled to disability compensation for a covered herbicide
disease, and VA previously denied service connection for the same disease in a decision issued between September 25, 1985,
the effective date of the invalidated regulation, and May 3, 1989, the effective date will be the later of the date VA received
the claim on which the prior decision was based or the date the disability arose. This rule governs cases where a prior denial
was voided by the district court's May 3, 1989 order. In an order dated February 11, 1999, the district court in Nehmer held
that its 1989 order had voided claims rendered while former 38 CFR 3.311a(d) was in effect, provided that such claims denied
compensation for a disease
