Nehmer - Military Order of the Purple Heart

NEHMER UPDATE AND SOMERETRO BENEFITS YOU MIGHTNOT KNOW ABOUT:DEA, HEALTHCARE REFUNDS,& CHAMPVAPresented by:NVLSP© NVLSP 2012 1

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 diseasesrelated to AO exposure if they meet 2 or 3 reqs:• Service in Vietnam during the Vietnam era (orother proof of AO exposure)• Have a disease (or its residuals) VA recognizes islinked to AO, and it is at least 10% disabling• Some non-cancer diseases must appear within acertain time after the vet left Vietnam or wasexposed to AO.© NVLSP 2012 2

Vietnam Service(38 C.F.R § 3.307(a)(6)(iii))VA will presume a vet was exposed to AO ifhe/she had active military, naval or air servicein the Republic of Vietnam at any pointbetween January 9, 1962 and May 7, 1975.© NVLSP 2012 3

Nehmer Special Effective Date Rules: Applicability• The special ED rules apply to claims byeligible Vietnam vets (those who served inVietnam at any time between 1/9/62 and5/7/75) or their survivors.• The rules DO NOT apply to vets who wereexposed to AO outside of Vietnam.• The claim must involve a disease on the listof AO presumptive conditions.© NVLSP 2012 4

Nehmer Special Effective Date Rules: Applicability• The claim must have been pending any timebetween 9/25/85 and date VA published theregulation adding the disease to its AO PresumptiveList.The claim counts if filed before 9/25/85, as long asit was still pending on that date© NVLSP 2012 5

Nehmer Special Effective Date Rules:Veteran’s Disability Compensation ClaimsThe ED will be date VA received 1st claim for diseasethat was pending at any point between 9/25/85and the date VA amended its AO Presumptive List• If disease was not at least 10% disabling on thedate of claim, the ED will be date the evid shows itmet criteria for at least a 10% evaluation.• If claim was received by VA within 1 year ofmilitary discharge, then the ED will be dayfollowing the date of discharge.© NVLSP 2012 6

Nehmer Special Effective Date Rules:DIC Claims• The ED will be date VA received 1st DIC or deathpension claim that was pending between 9/25/85and date VA amended AO Presumptive List.• If that DIC or death pension claim was filed w/in 1year of the vet’s death, the ED will be 1st day ofmonth of vet’s death.© NVLSP 2012 7

What Constitutes a Nehmer Claim?Anything that would constitute a claim for disability comp or DICunder normal VA rules:• Any communication or action that demonstrates an intent toapply for disability comp or DIC or a belief in entitlementqualifies as a claim. For example, a written request for SC forParkinson’s disease.• “Inferred” claims (claims reasonably raised by the evid).• Death pension claims = DIC claims.© NVLSP 2012 8

What Constitutes a Nehmer Claim?Claims under footnote 1 of the 1991 Nehmer FinalStipulation and Order – “Footnote 1 Claims”• If a disability was coded or should have been coded in RDpursuant to a provision in the VA Adjudication ProceduresManual in effect at the time of the 1991 Final Stipulation andOrder, there is a Nehmer claim.• A disability should have been coded in RD if it was “noted.” Ifduring the dev of a claim for SC for Disability A, VA obtained adiagnosis of Disability B, then Disability B should have beencoded in the RD for Disability A.© NVLSP 2012 9

What Constitutes a Nehmer Claim?• The ED of a Footnote 1 claim is the later of:a) the date of the claim that gave rise to the ratingdecision that coded or should have coded thedisability now on the AO Presumptive List, orb) the date of diagnosis.© NVLSP 2012 10

What Constitutes a Nehmer Claim?VA has instructed its adjudicators that the followingalso constitute Nehmer claims:• Claims for NSC disability pension based on adisease now on AO Presumptive List.• Notice of death of a vet = DIC claim.• A burial benefits claim, unless the claimant wassent a DIC app and it was not returned to VA© NVLSP 2012 11

Special Rules about BeneficiariesIf a Vietnam vet claimant or DIC claimant dies after thepublication date of VA reg adding the subject disease to thepresumptive list, but before receiving retro benefits requiredby Nehmer, unpaid retro benefits are to be paid to theclaimant’s survivors or estate in the following order:• Surviving spouse• Surviving children• Surviving parents• Estate of the Claimant© NVLSP 2012 12

Status of Adjudication of Nehmer Claims Related toIHD, Parkinson’s Disease, & Chronic B-Cell LeukemiasVA identified 149,945 cases for Nehmer review:• Incl ~96,000 vets or survivors who had claim forcompensation related to one of the 3 new presumptiveconditions denied on or after 9/25/85. VA searched diagnostic codes (DCs) associatedwith the diseases and matched list to VA/DoD’s“in-country Vietnam file.”© NVLSP 2012 13

Status of Adjudication of Nehmer Claims Related toIHD, Parkinson’s Disease, & Chronic B-Cell LeukemiasList was over-inclusive because:• It incl all vets who served in SE Asia, not justVietnam.• Some DCs were used to analogously code a differentdisease.• If on initial review, VA found vet did not have Vietnamservice or presumptive condition, claimant couldcontest. If not, VA placed memo in claims filedisposing of case. By 12/27/11, VA dispensed with11,101 cases this way.© NVLSP 2012 14

Status of Adjudication of Nehmer Claims Related toIHD, Parkinson’s Disease, & Chronic B-Cell LeukemiasList was under-inclusive, because it does not incl vets (orsurvivors) who were granted SC for one of the diseasesafter 9/25/85 (direct or secondary SC). They may beentitled to an even EED under Nehmer.List was under-inclusive, because DIC claims may nothave incl relevant DC.If you discover a case that should have been reviewedunder Nehmer, please contact NVLSP and request thatVA review case under Nehmer.© NVLSP 2012 15

Status of Adjudication of Nehmer Claims Related toIHD, Parkinson’s Disease, & Chronic B-Cell LeukemiasList also incl ~54,000 vets or survivors who filed a newclaim for SC for one of the 3 conditions between 10/13/09(when VA announced it would add the diseases to the AOpresumptive list) and 8/31/10 (when VA published the finalrule adding the diseases).© NVLSP 2012 16

Status of Adjudication of Nehmer Claims Related toIHD, Parkinson’s Disease, & Chronic B-Cell LeukemiasAs of 1/12/12:• 496 Nehmer claims for live vets remainedunadjudicated. Most involve complex issues.• ~12,200 Nehmer claims involving deceasedvets remained unadjudicated. VA often hasdifficulty identifying and locating properpayee.© NVLSP 2012 17

Status of Adjudication of Nehmer Claims Related toIHD, Parkinson’s Disease, & Chronic B-Cell Leukemias• About 75% of claims VA identified forNehmer review have been granted.• Over $2 billion in retro benefits have beenawarded.© NVLSP 2012 18

Status of Adjudication of Nehmer Claims Related toIHD, Parkinson’s Disease, & Chronic B-Cell LeukemiasTo date, NVLSP has identifiederrors in almost 500 Nehmerdecisions.© NVLSP 2012 19

Status of Adjudication of Nehmer Claims Related toIHD, Parkinson’s Disease, & Chronic B-Cell Leukemias• In general, the VA seems to bereadudicating most claims accurately withrespect to effective date.• However, in up to 20% of cases reviewedthere is a specific type of error that the VAmay have made in cases decided prior toMarch 2010.© NVLSP 2012 20

Status of Adjudication of Nehmer Claims Related toIHD, Parkinson’s Disease, & Chronic B-Cell Leukemias• There is a particular rule in Nehmer readjudicationsthat applies when evid showing IHD, Parkinson’sdisease, or a chronic B cell leukemia is receivedwhile another claim is pendingWe called it a “Footnote 1 claim” earlier when wediscussed effective date rules under Nehmer• Unlike inferred claims, the ED for these claims isnot the date the evid was received by VA, butrather the date of the claim that was pending whenthe evidence was received.© NVLSP 2012 21

Status of Adjudication of Nehmer Claims Related toIHD, Parkinson’s Disease, & Chronic B-Cell Leukemias• For example, if a vet filed a claim for hearing loss in April2006, and in July 2006 evidence of IHD was received at theRO – the effective date of the IHD should be April 2006.• In many of these cases, VA wrongly assigns the date itreceived medical evid showing one of the 3 new presumptiveconditions as the ED of the claim, instead of the date of claimthat was pending when it received the evid• In Feb 2011, VA clarified to its adjudicators the app of thisrule, and instances of this error have decreased since then© NVLSP 2012 22

Eligibility for Other Retroactive BenefitsDue 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 23

Retro Dependents’ Educational AssistanceSome vets’ dependents may be eligible forretro Dependents’ Educational Assistance(“DEA”) due to their Nehmer award.© NVLSP 2012 24

Retro DEARetro DEA Benefits• Since survivor or dependent would not be eligible toreceive DEA until VA awards entitlement, most donot file DEA application until VA awards SC forcause of vet's death or a P&T rating.© NVLSP 2012 25

Retro DEA• Survivor or dependent may be paid retro DEA forany period they were otherwise eligible, if they fileDEA application (VA Form 22-5490) within oneyearof VA decision that vet has/had a P&T SCdisability or died from SC disability.See 38 U.S.C. § 5113; Friedsam v. Nicholson, 19Vet. App. 222 (2005).© NVLSP 2012 26

Retro DEAApplication to NehmerMany children and spouses of vets may beentitled to DEA as a result of the Nehmerdecision if VA found:• the vet had P&T SC disability; or• the vet's death was SC.© NVLSP 2012 27

Retro DEAIf child or spouse participated in a qualifyingprogram of education while otherwise eligible,they can now file an application for retro DEAbenefits.© NVLSP 2012 28

Retro DEAThey must have met the eligibility criteriapreviously discussed when they undertook theeducational program. In other words, they musthave been the appropriate age, etc., when theyparticipated in the program for which they areseeking retro DEA.The application must be filed within one yearof the date of VA’s Nehmer decision.© NVLSP 2012 29

Refunds of VA Health Care ExpensesVets who are SC for IHD, Parkinson’sdisease, and chronic B-cell leukemias underNehmer should be eligible for refunds of VAco-pays for treatment of and medication forthese conditions made from the effective dateof SC to the present.© NVLSP 2012 30

Refunds of VA Health Care ExpensesIf the Nehmer decision raises vet's combinedSC evaluation to 50% or higher (placing themin Priority Group 1), vet should be eligible forrefund of all VA co-pays made since theeffective date of that combined disabilityrating.© NVLSP 2012 31

Refunds of VA Health Care Expenses• 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 reimbursableexpenses paid by the vet and to which he/she maybe entitled under 38 C.F.R. § 17.126 due to theaward of service connection for [IHD/Parkinson’sdisease/chronic B-cell leukemia].”© NVLSP 2012 32

Refunds of Non-VA Health Care Expenses - § 1728In most cases, reimbursement of medicalexpenses incurred outside of VA healthcaresystem for treatment of the newly SCconditions is not permitted.© NVLSP 2012 33

Refunds of Non-VA Health Care Expenses – § 1728One possible exception is treatment of the now-SCcondition in a medical emergency, if VA or otherfederal facilities were not feasibly available.See 38 U.S.C. § 1728; 38 C.F.R §§ 17.120-132© NVLSP 2012 34

Refunds of Non-VA Health Care Expenses – § 1728Application for reimbursement must be filedwithin 2 years of the date vet was notified ofdecision awarding SC.Application is VA Form 10-583, Claim forPayment of Cost of Unauthorized MedicalExpenses.© NVLSP 2012 35

Refunds of Non-VA Health Care Expenses – § 1728Example: In 2004, vet suffered severe chest pains. He was notenrolled in VA healthcare and was brought to a private hospital.Hospital found he was having an MI and treated him. Hospital billedhim $1,000. In a 7/1/11 rating decision and notice letter, VAawarded him SC for IHD effective 5/1/03. He is likely entitled toreimbursement of the $1,000, if he files a claim by 7/1/13, because:he is now SC for IHD effective prior to treatment; andVA or federal facility was not feasibly available because hewas not enrolled in VA healthcare and not SC for IHD at thetime; andtreatment was for a medical emergency.© NVLSP 2012 36

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 SCdisability 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 37

Retro CHAMPVAAn eligible spouse or child may be entitled toretro CHAMPVA benefits as a result of aNehmer decision.© NVLSP 2012 38

Retro CHAMPVAThe effective date of CHAMPVA eligibility is:the effective date of the vet's P&T SCdisability; orthe date of the vet's death from an SCdisability.© NVLSP 2012 39

Retro CHAMPVAThe beneficiary is entitled to CHAMPVAbenefits for covered med services thatoccurred on or after the effective date ofeligibility.© NVLSP 2012 40

Questions?© NVLSP 2012 41