payees. VA shall make reasonable efforts to identify the appropriate payee(s) under paragraph (f)(1) of this section based
on information in the veteran's claims file. If further information is needed to determine whether any appropriate payee exists
or whether there are any persons having equal or higher precedence than a known prospective payee, VA will request such information
from a survivor or authorized representative if the claims file provides sufficient contact information. Before releasing
payment to an identified payee, VA will ask the payee to state whether there are any other survivors of the class member who
may have equal or greater entitlement to payment under this section, unless the circumstances clearly indicate that such a
request is unnecessary. If, following such efforts, VA releases the full amount of unpaid benefits to a payee, VA may not
thereafter pay any portion of such benefits to any other individual, unless VA is able to recover the payment previously released.
(4) Bar to accrued benefit claims. Payment of benefits pursuant to paragraph (f)(1) of this section shall bar a later claim
by any individual for payment of all or any part of such benefits as accrued benefits under 38 U.S.C. 5121 and § 3.1000.
(g) Awards covered
by this section. This section applies only to awards of disability compensation or DIC for disability or death caused by a
disease listed in paragraph (b)(2) of this section.
VA’s Detailed Explanation of the New Regulation
A series of court orders in the class-action litigation in Nehmer v.
United States Department of Veterans Affairs, No. CV-86-6160 TEH (N.D. Cal.), requires VA to assign retroactive effective
dates for certain awards of disability compensation and DIC in a manner not provided for in any existing statute or regulation.
The court orders require that, when VA awards disability compensation or DIC pursuant to a regulatory presumption of service
connection under the Agent Orange Act of 1991, Pub. L. 102-4, VA must in certain cases make the award effective retroactive
to the date of the claimant's application or the date of a previously-denied application, even if such date is earlier than
the effective date of the regulation establishing the presumption. Current regulations, however, prohibit VA from making a
benefit award effective any earlier than the effective date of the regulation establishing the presumption. Because the conflict
between current statutes and regulations and the Nehmer court orders may create confusion, we propose to amend our regulations
to reflect the requirements of the Nehmer court orders.
In 1991, Congress enacted the Agent Orange Act of 1991, Pub. L. 102-4 (codified at 38 U.S.C. 1116 and in the notes to
that section). That Act established presumptions for chloracne, non-Hodgkins lymphoma, and soft-tissue sarcoma. It further
provided that VA would obtain reports from the National Academy of Sciences (NAS) every two years for a ten-year period, assessing
the available scientific evidence regarding the association between exposure to herbicides and the development of diseases
in humans. After receiving each report, VA must determine whether there is a "positive association" between herbicide
exposure and any of the diseases discussed in the report. If a positive association exists for any such disease, VA must issue
regulations to establish a presumption of service connection for that disease in veterans exposed to herbicides during service.
VA has established presumptions of service connection for seven additional diseases or categories of disease, which are listed
in 38 CFR 3.309(e).
The Agent Orange Act of 1991 provides that regulations issued pursuant to that act shall take effect on the date they
are issued. Under generally applicable effective-date rules in 38 U.S.C. 5110(g) and 38 CFR 3.114, when VA awards benefits
pursuant to a liberalizing regulation, the award may not be made effective any earlier than the effective date of the liberalizing
regulation. Under those provisions, awards based on presumptions of service connection established under the Agent Orange
Act of 1991 can be made effective no earlier than the date VA issued the regulation authorizing the presumption.
What Every Veteran Should Carry
No longer will you have to carry around your
DD Form 214 as proof of your military service. The Veteran ID Card will quickly establish you as a veteran, along with
other essential benefits. More...