3. Qualifying Claims by Nehmer Class Members Filed Within 1 Year After Separation From Service
We propose to state in § 3.816(c)(3)
that, if a claim referenced in paragraph (c)(1) or (c)(2) was received by VA within one year after the date of the veteran's
separation from service, the effective date of compensation will be the day following such separation. This would ensure that
the principle stated in 38 U.S.C. 5110(b)(1) is applied, as required by the Nehmer stipulation and order. We note that the
stipulation and order requires VA to apply section 5110(b)(1) to awards made upon readjudication of claims where a prior decision
was voided by the court's 1989 order, but not to awards made in claims pending on or filed after May 3, 1989. Nevertheless,
we propose to apply section 5110(b)(1) to claims pending on or filed after May 3, 1989, in order to ensure that the generally
applicable provisions of that statute are applied in a consistent manner.
4. Other Claims
We
propose to state in § 3.816(c)(4) that, if the requirements of paragraph (c)(1) or (c)(2) are not met, the effective
date of the award shall be determined in accordance with 38 CFR 3.114 and 3.400, the provisions generally governing the effective
dates of disability compensation. The United States Court of Appeals for Veterans Claims has held that the provisions of the
Nehmer stipulation and order do not apply where a prior claim was denied before September 25, 1985. See Williams v. Principi,
15 Vet. App. 189 (2001) (en banc).
Similarly, the stipulation and order does not apply in cases where the veteran's initial claim for a covered herbicide
disease was filed after the effective date of the regulations establishing a presumption of service connection for that disease.
Further, application of the Nehmer stipulation to such cases would ordinarily be detrimental to veterans. Under 38 CFR 3.114,
when disability compensation is awarded pursuant to a liberalizing regulation, the award may be made effective up to one year
prior to the date of the claim, but no earlier than the effective date of the liberalizing regulation. In contrast, the Nehmer
stipulation and order generally does not permit payment for any period prior to the date of the veteran's claim, except in
the limited circumstances described in 38 U.S.C. 5110(b)(1) and (d)(1) involving claims filed within one year of the date
of separation from service or the date of death.
Dependency and Indemnity Compensation
1. Claims by Nehmer Class Members Denied Between September 25, 1985 and May 3, 1989
Section 3.816(d)(1) states that, if a Nehmer class member is entitled to DIC for death caused by a covered herbicide
disease, and VA previously denied DIC for the death in a decision issued between September 25, 1985 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 death occurred.
This rule governs cases where a prior denial was voided by the district court's May 3, 1989 order. Because DIC claims do not
require assignment of disability ratings, decisions on DIC claims do not assign a diagnostic code corresponding to VA's rating
schedule and may not identify the disease causing death with the same specificity necessary to decisions concerning disability
compensation. Moreover, because the cause of death is usually established by the death certificate and medical records existing
at death, DIC claims filed at different times ordinarily will not involve different conditions, as often occurs with respect
to disability compensation claims. Accordingly, rather than requiring a specific finding that the prior denial of DIC expressly
referenced the same covered herbicide disease that provided the basis for the current DIC award, we propose to require only
that the prior decision issued between September 25, 1985 and May 3, 1989, have denied DIC for the same death.
2. Claims By Nehmer Class Members Pending on May 3, 1985 or Filed Between May 3, 1989 and the
Effective Date of the Authorizing Statute or Regulation
Proposed § 3.816(d)(2) states that, if the class member's claim for DIC for the death was either pending 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 disease causing the death, the effective date of DIC will be the later of the date VA received
such claim or the date the death occurred. For the reasons stated above with respect to disability compensation, we propose
to include claims filed before May 3, 1989, but still pending on that date, even though the Nehmer stipulation and order does
not expressly provide for such claims.
