nehmer update and some retro benefits …© nvlsp 2012 1 nehmer update and some retro benefits you...

© NVLSP 2012 1

NEHMER UPDATE AND SOME

RETRO BENEFITS YOU MIGHT

NOT KNOW ABOUT:

DEA, HEALTHCARE REFUNDS,

& CHAMPVA

Presented by:

NVLSP

© NVLSP 2012 2

Requirements for Comp Based on AO Exposure (38 U.S.C. § 1116(a), 38 C.F.R §§ 3.307(a), 3.309(e))

Veterans qualify for presumptive SC of diseases related to AO exposure if they meet 2 or 3 reqs:

Service in Vietnam during the Vietnam era (or

other proof of AO exposure)

Have a disease (or its residuals) VA recognizes is linked to AO, and it is at least 10% disabling

Some non-cancer diseases must appear within a certain time after the vet left Vietnam or was exposed to AO.

© NVLSP 2012 3

Vietnam Service (38 C.F.R § 3.307(a)(6)(iii))

VA will presume a vet was exposed to AO if

he/she had active military, naval or air service

in the Republic of Vietnam at any point

between January 9, 1962 and May 7, 1975.

© NVLSP 2012 4

Nehmer Special Effective Date Rules: Applicability

The special ED rules apply to claims by

eligible Vietnam vets (those who served in

Vietnam at any time between 1/9/62 and

5/7/75) or their survivors.

The rules DO NOT apply to vets who were

exposed to AO outside of Vietnam.

The claim must involve a disease on the list

of AO presumptive conditions.

© NVLSP 2012 5

Nehmer Special Effective Date Rules: Applicability

The claim must have been pending any time

between 9/25/85 and date VA published the

regulation adding the disease to its AO Presumptive

List.

The claim counts if filed before 9/25/85, as long as

it was still pending on that date

© NVLSP 2012 6

Nehmer Special Effective Date Rules: Veteran’s Disability Compensation Claims

The ED will be date VA received 1st claim for disease that was pending at any point between 9/25/85 and the date VA amended its AO Presumptive List

If disease was not at least 10% disabling on the date of claim, the ED will be date the evid shows it met criteria for at least a 10% evaluation.

If claim was received by VA within 1 year of military discharge, then the ED will be day following the date of discharge.

© NVLSP 2012 7

Nehmer Special Effective Date Rules: DIC Claims

The ED will be date VA received 1st DIC or death

pension claim that was pending between 9/25/85

and date VA amended AO Presumptive List.

If that DIC or death pension claim was filed w/in 1

year of the vet’s death, the ED will be 1st day of

month of vet’s death.

© NVLSP 2012 8

What Constitutes a Nehmer Claim?

Anything that would constitute a claim for disability comp or DIC

under normal VA rules:

Any communication or action that demonstrates an intent to

apply for disability comp or DIC or a belief in entitlement

qualifies as a claim. For example, a written request for SC for

Parkinson’s disease.

“Inferred” claims (claims reasonably raised by the evid).

Death pension claims = DIC claims.

© NVLSP 2012 9


Claims under footnote 1 of the 1991 Nehmer Final Stipulation and Order – “Footnote 1 Claims”

If a disability was coded or should have been coded in RD

pursuant to a provision in the VA Adjudication Procedures Manual in effect at the time of the 1991 Final Stipulation and Order, there is a Nehmer claim.

A disability should have been coded in RD if it was “noted.” If during the dev of a claim for SC for Disability A, VA obtained a diagnosis of Disability B, then Disability B should have been coded in the RD for Disability A.

© NVLSP 2012 10


The ED of a Footnote 1 claim is the later of:

a) the date of the claim that gave rise to the rating

decision that coded or should have coded the

disability now on the AO Presumptive List, or

b) the date of diagnosis.

© NVLSP 2012 11


VA has instructed its adjudicators that the following also constitute Nehmer claims:

Claims for NSC disability pension based on a disease now on AO Presumptive List.

Notice of death of a vet = DIC claim.

A burial benefits claim, unless the claimant was sent a DIC app and it was not returned to VA

© NVLSP 2012 12

Special Rules about Beneficiaries

If a Vietnam vet claimant or DIC claimant dies after the publication date of VA reg adding the subject disease to the presumptive list, but before receiving retro benefits required by Nehmer, unpaid retro benefits are to be paid to the claimant’s survivors or estate in the following order:

Surviving spouse

Surviving children

Surviving parents

Estate of the Claimant

© NVLSP 2012 13

Status of Adjudication of Nehmer Claims Related to

IHD, Parkinson’s Disease, & Chronic B-Cell Leukemias

VA identified 149,945 cases for Nehmer review:

Incl ~96,000 vets or survivors who had claim for

compensation related to one of the 3 new presumptive

conditions denied on or after 9/25/85.

VA searched diagnostic codes (DCs) associated

with the diseases and matched list to VA/DoD’s

“in-country Vietnam file.”

© NVLSP 2012 14



List was over-inclusive because:

It incl all vets who served in SE Asia, not just

Vietnam.

Some DCs were used to analogously code a different

disease.

If on initial review, VA found vet did not have Vietnam

service or presumptive condition, claimant could

contest. If not, VA placed memo in claims file

disposing of case. By 12/27/11, VA dispensed with

11,101 cases this way.

© NVLSP 2012 15



List was under-inclusive, because it does not incl vets (or survivors) who were granted SC for one of the diseases after 9/25/85 (direct or secondary SC). They may be entitled to an even EED under Nehmer.

List was under-inclusive, because DIC claims may not have incl relevant DC.

If you discover a case that should have been reviewed under Nehmer, please contact NVLSP and request that VA review case under Nehmer.

© NVLSP 2012 16



List also incl ~54,000 vets or survivors who filed a new claim for SC for one of the 3 conditions between 10/13/09 (when VA announced it would add the diseases to the AO presumptive list) and 8/31/10 (when VA published the final rule adding the diseases).

© NVLSP 2012 17



As of 1/12/12:

496 Nehmer claims for live vets remained unadjudicated. Most involve complex issues.

~12,200 Nehmer claims involving deceased vets remained unadjudicated. VA often has difficulty identifying and locating proper payee.

© NVLSP 2012 18



About 75% of claims VA identified for

Nehmer review have been granted.

Over $2 billion in retro benefits have been

awarded.

© NVLSP 2012 19



To date, NVLSP has identified

errors in almost 500 Nehmer

decisions.

© NVLSP 2012 20



In general, the VA seems to be readudicating most claims accurately with respect to effective date.

However, in up to 20% of cases reviewed there is a specific type of error that the VA may have made in cases decided prior to March 2010.

© NVLSP 2012 21



There is a particular rule in Nehmer readjudications that applies when evid showing IHD, Parkinson’s disease, or a chronic B cell leukemia is received while another claim is pending We called it a “Footnote 1 claim” earlier when we

discussed effective date rules under Nehmer

Unlike inferred claims, the ED for these claims is not the date the evid was received by VA, but rather the date of the claim that was pending when the evidence was received.

© NVLSP 2012 22



For example, if a vet filed a claim for hearing loss in April 2006, and in July 2006 evidence of IHD was received at the RO – the effective date of the IHD should be April 2006.

In many of these cases, VA wrongly assigns the date it received medical evid showing one of the 3 new presumptive conditions as the ED of the claim, instead of the date of claim that was pending when it received the evid

In Feb 2011, VA clarified to its adjudicators the app of this rule, and instances of this error have decreased since then

© NVLSP 2012 23

Eligibility for Other Retroactive Benefits

Due to Nehmer Award

Retro Dependents’ Educational Assistance (DEA)

Refunds of VA Health Care Expenses

Refunds of Non-VA Health Care Expenses

Retro CHAMPVA

© NVLSP 2012 24

Retro Dependents’ Educational Assistance

Some vets’ dependents may be eligible for

retro Dependents’ Educational Assistance

(“DEA”) due to their Nehmer award.

© NVLSP 2012 25

Retro DEA

Retro DEA Benefits

Since survivor or dependent would not be eligible to

receive DEA until VA awards entitlement, most do

not file DEA application until VA awards SC for

cause of vet's death or a P&T rating.

© NVLSP 2012 26

Retro DEA

Survivor or dependent may be paid retro DEA for any period they were otherwise eligible, if they file DEA application (VA Form 22-5490) within one-year of VA decision that vet has/had a P&T SC disability or died from SC disability.

See 38 U.S.C. § 5113; Friedsam v. Nicholson, 19 Vet. App. 222 (2005).

© NVLSP 2012 27

Retro DEA

Application to Nehmer

Many children and spouses of vets may be

entitled to DEA as a result of the Nehmer

decision if VA found:

the vet had P&T SC disability; or

the vet's death was SC.

© NVLSP 2012 28

Retro DEA

If child or spouse participated in a qualifying

program of education while otherwise eligible,

they can now file an application for retro DEA

benefits.

© NVLSP 2012 29

Retro DEA

They must have met the eligibility criteria

previously discussed when they undertook the

educational program. In other words, they must

have been the appropriate age, etc., when they

participated in the program for which they are

seeking retro DEA.

The application must be filed within one year

of the date of VA’s Nehmer decision.

© NVLSP 2012 30


Vets who are SC for IHD, Parkinson’s

disease, and chronic B-cell leukemias under

Nehmer should be eligible for refunds of VA

co-pays for treatment of and medication for

these conditions made from the effective date

of SC to the present.

© NVLSP 2012 31


If the Nehmer decision raises vet's combined

SC evaluation to 50% or higher (placing them

in Priority Group 1), vet should be eligible for

refund of all VA co-pays made since the

effective date of that combined disability

rating.

© NVLSP 2012 32


vet should submit a claim in writing to VA stating:

“This is a claim for reimbursement of VA co-pays, deductibles, and/or any other reimbursable expenses paid by the vet and to which he/she may be entitled under 38 C.F.R. § 17.126 due to the award of service connection for [IHD/Parkinson’s disease/chronic B-cell leukemia].”

© NVLSP 2012 33

Refunds of Non-VA Health Care Expenses - § 1728

In most cases, reimbursement of medical

expenses incurred outside of VA healthcare

system for treatment of the newly SC

conditions is not permitted.

© NVLSP 2012 34

Refunds of Non-VA Health Care Expenses – § 1728

One possible exception is treatment of the now-SC

condition in a medical emergency, if VA or other

federal facilities were not feasibly available.

See 38 U.S.C. § 1728; 38 C.F.R §§ 17.120-132

© NVLSP 2012 35


Application for reimbursement must be filed

within 2 years of the date vet was notified of

decision awarding SC.

Application is VA Form 10-583, Claim for

Payment of Cost of Unauthorized Medical

Expenses.

© NVLSP 2012 36


Example: In 2004, vet suffered severe chest pains. He was not enrolled in VA healthcare and was brought to a private hospital. Hospital found he was having an MI and treated him. Hospital billed him $1,000. In a 7/1/11 rating decision and notice letter, VA awarded him SC for IHD effective 5/1/03. He is likely entitled to reimbursement of the $1,000, if he files a claim by 7/1/13, because:

he is now SC for IHD effective prior to treatment; and

VA or federal facility was not feasibly available because he was not enrolled in VA healthcare and not SC for IHD at the time; and

treatment was for a medical emergency.

© NVLSP 2012 37

Retro CHAMPVA

The following people are eligible for CHAMPVA

(relevant to Nehmer):

Spouse or child of vet with P&T SC disability.

Surviving spouse or child of vet who died from SC

disability or, at time of death, had P&T SC disability.

NOTE: spouse or child not eligible for CHAMPVA if:

Eligible for TRICARE, or

Eligible for Medicare Part A if over 65 (usually).

© NVLSP 2012 38

Retro CHAMPVA

An eligible spouse or child may be entitled to

retro CHAMPVA benefits as a result of a

Nehmer decision.

© NVLSP 2012 39

Retro CHAMPVA

The effective date of CHAMPVA eligibility is:

the effective date of the vet's P&T SC

disability; or

the date of the vet's death from an SC

disability.

© NVLSP 2012 40

Retro CHAMPVA

The beneficiary is entitled to CHAMPVA

benefits for covered med services that

occurred on or after the effective date of

eligibility.

nehmer update and some retro benefits …© nvlsp 2012 1 nehmer update and some retro benefits you...

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