that VA later recognized as being associated with herbicide exposure. The court held that it is irrelevant
whether the prior claim alleged that the disease was caused by herbicide exposure or whether the prior decision had referenced
former § 3.311a(d). Accordingly, the only requirements for retroactive payment to a class member under proposed §
3.816(c)(1) would be that the decision have been rendered between September 25, 1985 and May 3, 1989-the period when former
§ 3.311a(d) was in effect-and that the decision have denied service connection for the same covered herbicide disease
for which compensation has now been awarded.
Paragraph 5 of the Nehmer stipulation and order provides that the basis of the prior claim will be determined by reference
to the diseases or conditions coded in the prior rating decision as required by provisions of a VA procedural manual. In accordance
with the manual, VA rating decisions on claims for disability compensation ordinarily identify each claimed disease or injury
by name and by a diagnostic code found in VA's Schedule for Rating Disabilities, which is located in 38 CFR part 4. There
may be variations in both the terminology and diagnostic codes assigned to a particular disease depending on various aspects
of the disease or associated conditions. For example, disability due to cancer of the larynx may have been rated as either
a malignant neoplasm of the respiratory system (diagnostic code 6844) or residuals of a laryngectomy (diagnostic code 6819).
Similarly, soft-tissue sarcomas may be described using different terminology or different diagnostic codes depending upon
the body part or system primarily involved. Additionally, some diagnostic codes refer to broad classes of disease that encompass
both covered and non-covered diseases. For example, diagnostic code 6819 (Neoplasms, malignant, any specified part of respiratory
system exclusive of skin growths) may refer to either a covered disease (e.g., lung cancer) or a non-covered disease (e.g.,
We do not intend that minor, immaterial variations in terminology or diagnostic code would preclude application of the
Nehmer rules. However, it must be established that the prior decision involved the same disease for which compensation has
now been awarded, rather than a distinct condition arguably bearing some relation to the compensable disease because, for
example, it involves the same body part or system. Accordingly, we propose to state that a prior decision will be construed
as having denied compensation for the same disease if the prior decision denied compensation for a disease that reasonably
may be construed as the same covered herbicide disease for which compensation has been awarded. We further propose to state
that minor variations in the terminology used in the prior decision will not preclude a finding, based on the record at the
time of the prior decision, that the decision denied service connection for the same covered herbicide disease.
2. Claims by Nehmer Class Members Pending on May 3, 1989, or Filed Between May 3, 1989 and the Effective Date of the
Authorizing Statute or Regulation
Proposed § 3.816(c)(2) states that, if a class member is entitled to compensation for a covered herbicide disease
and the class member's claim for compensation for that same disease 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, the effective date of compensation will be the later of the date VA received such claim or the date the disability
arose. The Nehmer stipulation and order refers only to claims denied prior to May 3, 1989 and claims filed after that date.
It does not expressly provide effective dates for claims that were filed prior to May 3, 1989 but not yet adjudicated by that
date. Notwithstanding this apparent oversight, we propose to treat such claims in the same manner as claims filed after May
3, 1989, as no decision on a claim pending on May 3, 1989, could have been voided by the court order.
We propose to state that a claim will be considered a claim for compensation for a particular covered herbicide disease
if the claimant's application and other supporting statements and submissions may reasonably be viewed, under the standards
ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disability.
This will merely ensure that the generally applicable provisions of statute and regulation governing claims will apply in
determining whether and at what date a particular claim was filed for purposes of this rule.
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...