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July 17, 2000


Director (00/21) 211A
All VBA Regional Offices and Centers Training Letter 00-06


SUBJECT: Training letter on diabetes mellitus and its complications

1. Enclosed is training material that includes both medical information and some rating guidelines on diabetes mellitus and its complications. This letter is not intended to make policy but to restate and clarify existing policy.

2. If you have any questions or comments about the content of this letter, or note any errors, please check the appropriate Calendar pages at: http://vbaw.vba.va.gov/bl/21/calendar/calendar.htm.


/S/

Robert J. Epley, Director
Compensation and Pension Service

Enclosure


*************************

Diabetes mellitus and its complications

What is diabetes mellitus (DM)?
Diabetes mellitus is a metabolic disorder in which the body is unable to use glucose (a type of sugar obtained from food) effectively. Hyperglycemia, an abnormally high level of blood sugar, results.

What does the pancreas have to do with diabetes?
Glucose is the main source of fuel for the body for energy and growth. There is a narrow range of blood glucose that is optimal—70 mg/dl to 110 mg/dl. Insulin and glucagon are hormones produced by the pancreas that regulate the level of blood glucose. Most of the pancreatic tissue produces enzymes that aid in digestion, but about 5% produces hormones instead. Insulin is produced in the pancreas by specialized cells called beta cells in the islets of Langerhans or pancreatic islets (groups of cells scattered throughout the pancreas), and glucagon is produced by alpha cells in the islets of Langerhans.

What is the action of insulin and glucagon?
After eating sugar or starch, the blood glucose level rises. This high blood glucose is the signal for the pancreas to release insulin, which then lowers the blood glucose by moving it out of the blood into cells. The blood glucose then falls to normal. Insulin helps convert glucose to glycogen, which is stored in the liver and muscles and released when glucose is needed, for example, during exercise. As the blood glucose falls, the amount of insulin secreted by the pancreas goes down.

Too much insulin causes hypoglycemia (low blood glucose level), and too little insulin produces hyperglycemia (high blood glucose level), an indication of diabetes mellitus.

Glucagon is produced in the opposite situation from insulin. When the blood glucose rises, no glucagon is secreted by the pancreas, but when blood glucose is low, glucagon is released. Glucagon makes the liver release stored glucose so that the blood glucose rises. Then the amount of glucagon secreted falls.

When does diabetes mellitus develop?
Diabetes mellitus arises in 2 situations that make the blood glucose rise and finally spill into the urine and make the cells of the body become starved for energy.
when the pancreas produces an inadequate amount of insulin
when the body cells do not respond effectively to the insulin that is produced in normal amounts.

What is diabetes insipidus?
Diabetes insipidus is a condition with a name similar to diabetes mellitus, but it is unrelated. It is due to a pituitary gland disorder and is characterized by extreme thirst and the excretion of large amounts of very dilute urine.
The urine is “insipid” or tasteless, in comparison with the sweet, sugar-filled urine of diabetes mellitus (mellitus = sweet as honey).

When the term "diabetes" alone is used, it refers to diabetes mellitus.

How common is diabetes?
In the U.S., 16 million people have diabetes mellitus, and about half of those do not know they have it. About 160,000 Americans die from diabetes each year.

There is variation in the incidence of diabetes among different ethnic groups. About 5-6% of whites have diabetes; 12-15% of African-Americans have it; 20% of Hispanics have it; and 35% (and up to 65% in some tribes) of Native Americans have it. The disease is very rare in undeveloped countries.

What causes diabetes?
The causes of diabetes are not known. Insulin-dependent diabetes may be more than one disease and may have many causes—hereditary factors, viruses, etc. Noninsulin-dependent diabetes is associated with obesity and with the development of resistance of the body to the action of insulin.

Risk factors for diabetes are:
a family history of diabetes.
sedentary lifestyle
central (truncal) obesity
being a member of a high-risk ethnic population
having delivered a baby > 9 lb. or having had gestational diabetes
age >45.

What are the different types of diabetes mellitus (DM)?
There are 3 common types of diabetes:
1. Type 1 (or type I) diabetes mellitus, formerly called juvenile or brittle or insulin-dependent diabetes (IDDM).
2. Type 2 (or Type II) diabetes mellitus, formerly called noninsulin-dependent or adult-onset diabetes (NIDDM).
3. Gestational diabetes mellitus (GDM).
Type I
An autoimmune disorder - the immune system body attacks and destroys beta cells in the pancreas, so the pancreas makes too little or no insulin.
Usually appears suddenly.
Most common under age 30 and more common in whites than in nonwhites.
Treatment is daily insulin, a planned diet, and regular exercise.

Type 2
Makes up 90 to 95% of diabetes.
The pancreas makes some insulin, sometimes too much, but it is not effective because the cells are resistant to insulin.
Usually gradual in onset.
Occurs most often over age 40-45 and is commonly associated with obesity, especially central obesity.
The treatment is diet, exercise, oral medication, and sometimes insulin.

Gestational diabetes (GDM)
Occurs during pregnancy and usually disappears when the pregnancy ends.
A woman who has had gestational diabetes is at increased risk for later developing Type 2 diabetes.

Other types may occur:
Diabetes may result from many other causes, such as other endocrine diseases, drugs, infections, genetic syndromes, etc.

How is diabetes diagnosed?
In 1997, the Expert Committee on the Diagnosis and Classification of Diabetes Mellitus named 3 ways to diagnose diabetes:
1. Symptoms of diabetes (such as polyuria, polydipsia, and unexplained weight loss) plus casual plasma glucose greater than 200 mg/dL (11.1 mmol/L). Casual means any time of day, without regard to meals.
2. Fasting plasma glucose (FPG) greater than 126 mg/dL (7.0 mmol/L). Fasting is defined as no caloric intake for at least 8 hours.
3. Glucose greater than 200 mg/dL (11.1 mmol/L) after a 75-g glucose load. This is not recommended for routine clinical use.
* Any of these is sufficient for diagnosis but should be confirmed by repeat testing on a separate day.

What is impaired glucose tolerance?
Impaired glucose tolerance (IGT) is a category that refers to those with fasting plasma glucose greater than 110 but less than 126. This group is at increased risk for diabetes.

What are the signs and symptoms of early diabetes?
• Type I DM usually presents with symptomatic hyperglycemia or diabetic ketoacidosis (DKA).

• Type II DM frequently is diagnosed on a routine medical examination, but may present with symptomatic hyperglycemia or hyperglycemic hyperosmolar nonketotic coma (NKHHC). Some patients are not diagnosed until they are found to have a late complication of diabetes.

What laboratory tests are often used to monitor DM?
Fasting or random (casual) plasma glucose.
Lipid testing - total cholesterol, HDL and LDL cholesterol, triglycerides.
Serum creatinine.
Urinalysis for glucose, ketones, protein, sediment, urine culture if indicated.
Test for microalbuminuria.
Electrocardiogram.
Hemoglobin A1c (HbA1C)

What is hemoglobin A1c?
Hemoglobin A1c (HbA1C) is the part of red blood cells that carries oxygen to the cells and that also binds to glucose. It is also known as glycosylated hemoglobin (GHb). The higher the level of blood sugar, the more sugar attaches to red blood cells and therefore the higher the level of HbA1c.

The hemoglobin A1C test measures the percentage of HbA1C that is linked to glucose. The glucose stays joined to the cell for the duration of the cell’s life (about 4 months), so the test can help track the average blood glucose levels over the past 60-90 days and monitor the effectiveness of treatment.

6% is considered normal. The goal of treatment is a level of less than 7%, the level that has been shown to have fewer complications than with a level of 8% or higher. Levels of 9-12% may be seen in diabetics. Levels greater than 8% may indicate a change in treatment is needed.

What is symptomatic hyperglycemia?
Symptomatic hyperglycemia generally occurs when excessive blood sugar occurs and is excreted in the urine (glucosuria). It results in dehydration as the kidneys try to flush out the extra glucose. Findings include:
polyuria (excessive urination, especially at night)
polydipsia (excessive thirst)
polyphagia (excessive hunger)
weight loss
May also be blurred vision, fatigue, nausea, dry mouth, dry or itchy skin, poor wound healing, impotence, or recurrent infections, such as vaginal candidiasis (yeast) and swimmer’s ear.

What are the acute complications of diabetes?
Acute complications of diabetes include both hyperglycemia and hypoglycemia.
Hyperglycemic diabetic emergencies include diabetic ketoacidosis (DKA) and hyperosmolic non-ketotic coma (NKHHC).

What is nonketotic hyperosmolar hyperglycemic coma (NKHHC)?
NKHHC is a serious complication of Type 2 DM resulting from very high blood glucose (600-2400 mg/dL) with dehydration. It often follows an infection, stroke, myocardial infarction, or surgery, often when there is some problem that interferes with adequate oral hydration (fluid intake by mouth). Sometimes it is due to medications.

In one-third of patients, it is the first indication of diabetes. It is often seen in elderly nursing home residents and may be associated with renal insufficiency, congestive heart failure, or recent discontinuation of insulin or oral hypoglycemic agents.

The mortality rate may be up to 50%. Symptoms include polyuria, polydipsia, evidence of severe dehydration, nausea, weakness, lethargy, tachycardia, hypotension, vision problems, confusion, delirium, convulsions, seizures, and ultimately coma (in about 10%). These symptoms may develop over a period of days or weeks.

What is diabetic ketoacidosis (DKA)?
DKA develops gradually when the blood glucose level rises and there is insufficient insulin to deal with it. This may happen because of stress, acute illness, eating too much, not taking enough insulin, etc. It is much more common in Type 1 DM.

The lack of insulin results in starvation of the body’s cells, so they lack energy and start to break down fat for fuel. This results in the production of ketones in the blood, a condition called ketoacidosis. This may result in coma if not treated rapidly.

Symptoms may include: fatigue, nausea and vomiting, weight loss, blurred vision, polydipsia, polyuria, abdominal pain, and altered mental status.

Treatment often requires hospitalization and includes fluid and electrolyte replacement and insulin. The mortality rate of DKA is less than 5%.

What is hypoglycemia?
Hypoglycemia is too low blood glucose (below 70). It is the most common complication of the treatment of diabetes. It may occur because of eating too little food after taking diabetes medications, excessive exercise, alcohol intake, or medication. It is more common in those on insulin.

When the blood sugar is 60 or below, it affects the brain, leading to weakness, nervousness, shaking, hunger, drowsiness, sweating, tachycardia, headache, confusion, irritability etc., and finally to seizures or loss of consciousness (insulin shock).

The treatment of hypoglycemia is immediate intake of a source of glucose such as fruit juice, sugar, non-diet soda, or glucose tablets.

What are the chronic complications of diabetes?
The chronic complications of diabetes can affect many different parts of the body—eyes, heart, feet, nervous system, kidneys. On average, complications become evident about 15-20 years after the diagnosis of DM. However, some people never develop complications, and others develop them much earlier, and even have them at the time of diagnosis. About 40% develop complications at some time.

Complications are often divided into several categories.
Microvascular complications (small blood vessel damage)
• retinopathy - eye
• neuropathy - nerves
• nephropathy - kidney
Macrovascular Complications (large blood vessel damage)
• heart problems
• hypertension
• peripheral vascular disease
• stroke
Other Complications
• infections
• impotence
• pregnancy complications
• foot problems
• skin problems

What is diabetic nephropathy?
Diabetic nephropathy is deterioration of the kidneys due to diabetes. It occurs in 30-50% of insulin-dependent diabetics and 10-15% of non insulin-dependent diabetics. There is often a clinical syndrome of albuminuria, hypertension, background retinopathy, and a history of diabetes for more than 10 years.

What is the typical course of diabetic nephropathy?
Diabetic nephropathy is often divided into 5 stages:
I. Silent stage. Diabetic nephropathy may be silent for 10-15 years, although it is damaging the nephrons of the kidney during that time.

II. Microalbuminuria. Persistent proteinuria (protein in the urine), specifically albuminuria (albumin, a type of protein, in the urine), in the range of 30-300 mg/24 h, which is known as microalbuminuria, is the earliest stage of diabetic nephropathy. These trace amounts of albumin leak through the damaged filtering structures of the kidneys. These patients will likely progress to clinical albuminuria.

Normal albumin excretion is 15 to 30 mg/day. Detecting microalbuminuria requires a special test. It is not found on a routine urinalysis because more than 550 mg/day must be excreted for it to show up on routine testing, which is the level called macroalbuminuria or macroproteinuria. Untreated hypertension accelerates renal disease, and increased hypertension occurs in patients with microalbuminuria.


III. Clinical albuminuria or proteinuria. Clinical diabetic nephropathy is said to be present when a patient who has had diabetes for more than five years and has evidence of diabetic retinopathy develops clinically apparent albuminuria (>300 mg per 24 hours) and has no evidence of any other cause of kidney disease. The level can be as much as 2000-4000 mg/day. When albuminuria develops, there is a high likelihood of developing end-stage renal disease within 3 to 20 years.

IV. Renal insufficiency (decreased renal function) - indicated by a rising blood creatinine. About 4 years after the onset of clinical diabetic nephropathy, the serum creatinine level rises to 2 mg/dL or greater. Within an additional 3 years, about half of patients will have developed ESRD.

V. End stage renal disease (ESRD) - usually when creatinine level reaches between 3 and 8. Likely to need kidney transplantation or hemodialysis.

What are some tests for renal disease?
• creatinine - a waste product from the normal breakdown of muscle. It builds up in the blood when the kidneys are damaged and unable to remove it from blood and excrete it. Normal levels vary, but a common normal range is 0.6 to 1.2 mg/dl. One estimate of renal function is that a creatinine level of 2.0 mg/dl means there is only 50% of normal renal function remaining and 4.0 mg/dl means 25% of normal function remains.
• creatinine clearance test - indicates how fast creatinine is removed from the blood. The normal creatinine clearance rate in men is 97 to 137 ml/min. and in women is 88 to 128 ml/min.
• blood urea nitrogen (BUN) - a waste product of protein that builds up in the blood when the kidneys are damaged and unable to remove it from the blood. Normal is 7 to 20 mg./dL. of blood. It is less specific for renal disease than creatinine because it can be elevated in dehydration and heart failure.
• proteinuria - protein in the urine that occurs when damaged kidneys fail to separate the protein from the waste products.
• renal imaging - ultrasound, computed tomography (CAT scan), and magnetic resonance imaging (MRI), mainly to find tumors or urinary tract obstruction.
• renal biopsy.
• renal angiogram - when renal hypertension is suspected.

What things accelerate diabetic nephropathy?
hypertension
neurogenic bladder
urinary tract infection and obstruction
drugs toxic to the kidney, such as NSAIDS.

What is the treatment of diabetic nephropathy?:
Albuminuria and renal disease may be prevented or delayed by the use of ACE inhibitors, providing tight glucose control, treating hypertension, low protein diet, and control of blood lipids, but treatment will not reverse renal disease.

Hemodialysis or kidney transplant may be needed in late stages. Patients with diabetes tend to start dialysis earlier (at a lower creatinine level) than others because they develop symptoms sooner than non-diabetics.

What are the cardiovascular complications?
Atherosclerosis occurs earlier and is more severe than in the general population, but the reason is unknown. Problems may develop in the legs, with peripheral arterial disease with intermittent claudication, ulcers that don’t heal, sometimes progressing to gangrene; heart, with coronary artery disease, cardiomyopathy, or congestive heart failure; and brain, with cerebrovascular accident (stroke).

Arteriosclerotic heart disease: Coronary artery disease is the major cause of death in diabetics. Angina and myocardial infarction may be silent until they result in unexpected left heart failure. (88% of asymptomatic diabetics undergoing coronary angiography as part of screening before kidney transplant had significant coronary disease.) Another cardiac complication is cardiomyopathy without coronary artery disease.

Diabetics have the same risk factors for arteriosclerotic heart disease as the general population—smoking, hypertension, elevated blood lipids, obesity—but diabetes greatly increases the risk. The risk of death following a myocardial infarction is 40-50% in diabetics, and 25 to 30% in non-diabetics. Unlike other complications, good blood glucose control will not prevent the development of heart disease.

Half of all diabetics have hypertension, but it is not ordinarily due to the diabetes—except when it results from diabetic nephropathy.

What is diabetic neuropathy?
Diabetic neuropathy is a group of disturbances that occur frequently in diabetics that can affect many parts of the nervous system. The peripheral nerves go out from the brain and spinal cord to muscles, skin, and internal organs. Peripheral neuropathy may be asymptomatic until a serious complication, such as foot ulcer or cardiac arrhythmia, develops.

The cause of diabetic neuropathy is not known, but may be due to a disturbance of nerve metabolism or ischemia (inadequate blood supply) of the nerves. Risk factors that contribute are increasing age, male sex, increasing height, long duration of diabetes, poor glucose control, hypertension, alcohol consumption, and smoking.

Examinations for diabetic neuropathy assess muscle strength, deep tendon reflexes, and sense of touch (temperature, pinprick or pressure sensation, vibratory sensation, position sense). Different functions are affected in different individuals, and symptoms may be out of proportion to the findings on examination. Diagnostic criteria are based on some combination of symptoms, focused neurologic examination, nerve conduction studies, and special quantitative sensory tests, but some tests are difficult and time consuming, and not all are ordinarily done.

Treatment consists of strictly controlling blood glucose and treating symptoms.

There are several different classifications of diabetic neuropathy. One groups it into 3 categories:
• Distal symmetrical polyneuropathy.
• Focal neuropathy.
• Autonomic neuropathy.

Distal symmetric polyneuropathy
This is the most common type of diabetic neuropathy. It is primarily sensory. It can affect the feet, legs, hands, and arms. It is characterized by peripheral neuropathy that is usually bilateral and symmetrical. It typically begins insidiously in the toes and progresses up the legs. It then affects the fingertips and later the chest and abdomen. It always starts distally and moves proximally.

About 12% of diabetics have it at the time of diagnosis of diabetes, and almost 60% have it after 25 years of diabetes.

Symptoms vary, but may include
paresthesias - numbness and tingling
hyperesthesias - increased sensitivity—to touch, etc.
hypesthesia (or hypoesthesia) - decreased sensitivity—to touch, etc.
loss of sensation
pain - often burning, may be lancinating or lightning, may be severe
and debilitating, often worse at night
dysesthesia - unusual and unpleasant sensation, sometimes extremely
painful, after normal stimulation
muscle weakness.
The findings are typically in a stocking-glove distribution. Ankle jerks are usually decreased or absent. The same patient may show both pain and insensitivity to pain.

Complications include:
abnormalities of gait (sensory ataxia - loss of balance and poor
muscle coordination due to loss of position sense)
Charcot joints (neuropathic osteo-arthropathy), which includes
degenerative changes, instability, and possibly fragmentation of
bones, particularly in the joints of the feet and ankle.
neuropathic ulcers of the feet. May lead to gangrene and amputation.
injuries and burns - may be unnoticed and become infected.

Mononeuropathy (focal)
Mononeuropathy is less common than polyneuropathy. It involves isolated neuropathy of a single nerve, often with paralysis of the 3rd ,4th, or 6th cranial nerve (eye muscle nerves), with the 3rd being most common, or the 7th cranial nerve, on one side. It can also affect peripheral nerves, causing a sudden wrist or foot drop. Compression neuropathies, such as carpal tunnel syndrome, may also occur. Mononeuropathy may improve spontaneously after weeks to months and is believed to be due to nerve infarction.

Radiculopathy (focal)
Neuropathy of a spinal nerve root may occur, producing pain over the distribution of one or more spinal nerves, usually on the chest wall or abdomen. It also causes sensory loss. Like mononeuropathy, the lesion is usually self-limited.

Autonomic neuropathy
The autonomic nervous system includes sympathetic and parasympathetic nerves that supply heart muscle, smooth muscle (such as the muscle lining walls of arteries and the digestive tract), and glands, all organs that work without our conscious control. Neuropathy of the autonomic nervous system can have broad effects on the cardiovascular, digestive, and genitourinary systems, and on the sweat glands.

Cardiovascular autonomic neuropathy: Among the effects are decreased cardiac sensation so that angina or the pain of myocardial infarction goes unnoticed until congestive heart failure develops.

Another potential cardiovascular problem is orthostatic (postural) hypotension (low blood pressure) with syncope (fainting). Cardiorespiratory arrest and sudden death have been reported.

Urinary tract autonomic neuropathy: Can cause incomplete bladder emptying, with stasis of the urine predisposing to infection of the bladder and kidneys. Incontinence is possible because of decreased sensation or difficulty controlling urination. Chronic catheterization may be necessary.

Digestive tract autonomic neuropathy: May cause bloating, nausea, vomiting, diarrhea (especially at night), weight loss, constipation, difficulty swallowing, or loss of bowel control.

Delayed gastric emptying (sometimes with a dumping syndrome) may occur due to vagus nerve involvement. When severe, it is called gastroparesis (literally, paralysis of the stomach). It may cause nausea, vomiting, early satiety (feeling of fullness in the stomach), bloating, abdominal pain, weight loss. If longstanding, bezoars (masses of hardened food) may develop and obstruct the stomach. It is treated by diabetes treatment, drugs, and at times a feeding tube or parenteral nutrition.

Sweat gland autonomic neuropathy: May cause problems with regulation of body temperature or excess sweating (often at night or during meals).

Sexual dysfunction includes impotence and retrograde ejaculation, usually irreversible. Impotence occurs in 50 to 60% of men with diabetes. It is believed to be due to nerve damage and decreased circulation, but may stem from medications used to treat DM.

What are the foot complications?
Diabetics are at risk for foot problems if they have distal symmetrical polyneuropathy and/or peripheral vascular disease with poor circulation. There are 42 muscles, 26 bones and 29 joints in the foot that may be damaged due to diabetes.

Ulcers are a common foot problem. They may be due to abnormal pressure resulting from neuropathy or poor fitting shoes, combined with a lack of sensitivity to pain. They may be preceded by a callus. Injuries of which the patient is unaware are common. Osteomyelitis and gangrene may follow.

Amputations are 15 times more common in people with diabetes than in those without it. Peripheral neuropathy, peripheral vascular disease, and infection are all contributory causes. Amputation of one lower extremity predisposes to amputation of the other because of increased stress on the opposite leg, resulting in ulcers, infection, etc.

What are the skin complications?
In addition to infections (for example, Candida, dermatophytes, and bacterial infections) and ulcers, there are several specific conditions that may affect diabetics.

• Necrobiosis lipoidica diabeticorum - plaque-like yellow to brown lesions over the anterior tibial surfaces of the legs that may ulcerate. It develops over months and may last years. The cause is unknown.
• Diabetic dermopathy ("shin spots") - small plaques with a raised border, also usually over the anterior tibial surfaces that may also ulcerate. Cause is unknown.
• Bullosis diabeticorum - blisters spontaneously appearing on the hands or feet that heal in 2-5 weeks, sometimes with scarring and atrophy.
• At the site of insulin injections, fatty tissue may atrophy, or the skin may thicken with an accumulation of fat resembling a lipoma.

What are the eye complications?
The most common eye problems in diabetics are:
Diabetic retinopathy - impairment or loss of vision due to damage to the blood vessels of the retina.
Cataract--clouding or opaqueness of the lens of the eye.
Glaucoma--increased fluid pressure in the eye. Causes loss of visual fields due to optic nerve damage.

How common are diabetic eye complications?
Diabetes is the leading cause of adult blindness. About 2% of people with Type 2 DM suffer total loss of vision.

Who is likely to get diabetic eye complications?
Anyone with diabetes may get eye complications, but they are more likely the longer someone has had diabetes. Almost half of diabetics will develop diabetic retinopathy during their lifetime.

Two early warning signs of retinopathy are microalbuminuria and decreased dark adaptation. Diabetic eye disease is associated with poor control of blood glucose and blood pressure.

What causes eye damage?
This is largely due to blood vessel damage from high blood sugars:
Leakage (hemorrhage): from damage to capillaries.
Blood vessel blockage: partial or total, decreases blood supply.

What is the retina?
The retina is a very thin light-sensitive tissue at the back of the eye. When light enters the eye, the retina changes the light into nerve signals and sends them along the optic nerve to the brain to make vision possible.

What are the types of retinopathy?
The 2 main types of retinopathy are:
background, or simple retinopathy (BDR)
proliferative retinopathy
preproliferative retinopathy is sometimes listed as a 3rd type

What is the course of retinopathy?
Retinopathy affects the small blood vessels of the eye. It begins as background retinopathy (BDR), which is an early stage of damage that can be diagnosed before vision is impaired by an examination of the eyegrounds by ophthalmoscopic examination. The characteristics of background retinopathy are:
• Microaneurysms - the earliest visible changes, due to weakened blood vessel walls causing the vessels to bulge. They look like scattered red spots in the retina. They may leak blood (hemorrhages) or fluid (exudates) into the surrounding tissue.
• Hemorrhages - bleeding into the retinal layers from damaged blood vessels. Only a problem when bleeding occurs in or near the macula.
• Hard Exudates - proteins and lipids also leak out of the blood into the retina through damaged blood vessels. They look like hard white or yellow areas around leaking capillaries. Only a problem if the macula is involved.

About 80% of people who have had diabetes for over 20 years have some background diabetic retinopathy, but 75-80% of those never develop serious vision problems. However, BDR can progress to macular edema or proliferative retinopathy.

Macular edema can occur if the microaneurysms, hemorrhage, and exudates of BDR occur within the macula, which is the central 5% of the retina most critical to vision. Macular edema may lead to blurred vision, and there may be progressive visual loss and inability to focus clearly. This may occur at any stage of retinopathy.

Some call the following changes preproliferative diabetic retinopathy:
• Intraretinal Microvascular Abnormalities (IRMA): - irregularly-dilated blood vessels in a localized area of the retina.
• Cotton Wool Spots: - white areas in the retina where blood vessels are blocked, and localized areas of nerves have been damaged.

Proliferative retinopathy: occurs when small, fragile, abnormal new blood vessels develop and grow out of control across the eye. This is called neovascularization. It may be associated with retinal detachment or hemorrhage, which can cause blindness.

The new vessels grow out into the vitreous gel (the clear jelly-like substance that fills the middle of the eyeball) and are very prone to bleeding, especially with a sudden motion or rise in blood pressure. Until they bleed, someone is unlikely to know they have eye problems. Hemorrhage can cause blurred vision or temporary blindness.

If extensive or repeated bleeding occurs, fibrous tissue or scarring can form near the retina. Since the retina is so thin, being made up of only a few layers of cells, scarring can pull or detach the retina away from the back of the eye. Retinal detachment may be noted as wavy lines or a curtain-like effect that appears in one area of vision. It may result in permanent visual impairment.

How is proliferative diabetic retinopathy treated?
• Laser surgery can reduce the risk of visual loss from proliferative diabetic retinopathy by 60%. It is used to seal or shrink the abnormal blood vessels. Can also reduce visual loss from macular edema by 50%.
• Vitrectomy surgery (removal of the clear vitreous gel in the eye and replacement with a salt solution) may restore useful vision when retinopathy is too advanced for laser surgery—e.g., those who have vitreous hemorrhage or scarring with retinal detachment.

How common are cataracts in diabetics?
Diabetics are twice as likely to get a cataract as a person who does not have the disease, and they develop at an earlier age in people with diabetes.

What are the types of cataracts that diabetics get?
Senile cataract - the most common type. Almost exclusively in those > age 60. The underlying damage begins decades earlier. Diabetes raises the risk about 40%.

Vitrectomy - In one study, 63% of eyes that had had a vitrectomy developed cataracts compared to only 4% in the non-vitrectomised eye.

Sugar cataract - mostly young adults with poor control of Type I DM. Can grow rapidly with complete loss of vision in as little as 3 days.

How common is open-angle glaucoma in diabetics?
Open-angle glaucoma is 1.4 to 2 times more common in the diabetic population. The older a person is and the longer a person has had diabetes, the greater the risk of glaucoma. It results from high fluid pressure within the eye. As the pressure increases, it can compress the optic nerve and the blood vessels that nourish the retina and cause a slow loss of peripheral vision and eventual blindness.

Treatment may include medications, laser, or other forms of surgery.

What are some miscellaneous complications?
Vaginal and oral thrush or moniliasis - may be troublesome during periods of high blood glucose and urine spillage of glucose.

Other infections
Hyperglycemia causes the white blood cells of the immune system to function poorly. In addition, all of the body's fluids have higher levels of sugar and nutrients, which make them more inviting for bacteria to grow and multiply. Therefore, with poorly controlled diabetes, there is a higher risk of infection, and often the infections are more serious and harder to cure. Urinary tract and vaginal infections are particularly common.

Four unusual infections appear to have a specific relationship with diabetes.
• Malignant external otitis, a bacterial infection in older patients that causes severe ear pain, necrosis of the external auditory canal, fever, and sometimes paralysis of the facial nerve. Other cranial nerves may be involved, and there may be osteomyelitis of the base of the skull.
• Nasopharyngeal mucormycosis, a rare and serious fungal infection that usually develops during or following an episode of diabetic ketoacidosis. Has sudden onset with periorbital edema, pain, bloody nasal discharge, and increased lacrimation (tearing). The nasal mucosa and underlying tissues become black and necrotic. Can extend into the orbit or base of the skull. Serious neurologic complications may occur. If untreated, death usually occurs in a week to 10 days.
• Emphysematous cholecystitis begins as an attack of biliary colic which rapidly progresses. Probably due to small vessel ischemic disease. Recognized by X-rays that show gas in or around the gall bladder. Gangrene of the gallbladder is 30 times more frequent than in the usual cholecystitis.
• Emphysematous pyelonephritis is also recognized on X-rays by seeing gas in the kidney area. Antibiotic therapy is usually ineffective, and nephrectomy may be required. Mortality rates of 80% have been reported.

Pregnancy Complications of DM
• Gestational diabetes occurs in 4% of women. They have an increased risk of developing diabetes later in life.
• Twice as likely to have a large baby than women without diabetes.
• Cesarean sections are three to four times more likely.

Can complications be prevented?
A large 10-year clinical study (The Diabetes Control and Complications Trial (DCCT)) assessed the effects of intensive therapy on the long-term complications of diabetes. It showed that strict control of blood sugar by intensive management slowed the onset and progression of eye, kidney, and nerve diseases caused by diabetes. Specifically, it showed:
• 76% reduced risk of retinopathy
• 50% reduced risk of clinical nephropathy
• 60% reduced risk of neuropathy

The chief adverse event associated with intensive therapy was a two-to-threefold increase in severe hypoglycemia.

These results do not necessarily apply to type 2 diabetics. In fact, concern has been raised that insulin treatment in type 2 patients may accelerate macrovascular disease.

What role does insulin have in diabetes management?
The pancreas of type 1 DM patients makes no insulin or insufficient insulin, so daily injections of insulin, usually multiple, are necessary. The exact types, amounts, and timing of the insulin injections are individually determined, and food intake must be matched to this.

Some people with type 1 DM require an insulin pump for adequate glucose control. It delivers small amounts of insulin throughout the day, through a needle, usually inserted in the abdominal wall. The amount is tailored to the individual’s activities and mealtimes and requires close monitoring of blood glucose. Brittle diabetics are type I DM patients who exhibit frequent, rapid swings in glucose levels without apparent cause.

Patients with type 2 DM may also need insulin if they do not respond well to diet, exercise, and oral medications.

Types of insulin include mostly genetically engineered human insulin, porcine (from pigs) insulin, and bovine (from cows) insulin. Insulin is injected subcutaneously (under the skin) with disposable insulin syringes or a multiple-dose insulin injection device or insulin pen.

The duration of insulin is another way it is classified. There are short-acting (rapid-acting), intermediate-acting, and long-acting types, based on the rate of insulin absorption from the injection site.
Rapid-acting insulins
Regular insulin, the only insulin preparation that can be given IV, works for two to four hours.
Lispro insulin works for about 2 hours.
Semilente insulin is a slightly slower rapid-acting insulin.
Intermediate-acting insulin
NPH (neutral protamine Hagedorn).
Lente.
Long-acting
PZI (protamine zinc insulin).
Ultralente.

Mixtures of insulin preparations with different onsets and durations of action are frequently given in a single injection.

In the DCCT study, type I DM patients received an average total dose of about 40 U insulin a day. Type II DM patients are insulin resistant and may require much more insulin. The dose is adjusted to maintain preprandial (before a meal) plasma glucose between 80 and 150 mg/dL (4.44 and 8.33 mmol/L).

What are the most frequent complications of insulin treatment?
• Hypoglycemia is the major complication. It may occur because of an error in insulin dosage, taking in too little food or missing a meal, excessive alcohol, or unplanned exercise. Sometimes it occurs without apparent cause.
• Weight gain. Obesity itself is an insulin-resistant state that contributes to a cycle of worsening insulin resistance, increasing insulin requirements, and further weight gain.
• Generalized insulin allergy can occur when treatment is discontinued and restarted after a lapse of months or years. Symptoms may include urticaria, angioedema, pruritus, bronchospasm, and, in some cases, circulatory collapse.
• Insulin resistance is an insulin requirement of 200 U/day or more.
• Local fat atrophy or hypertrophy at injection sites.

What role does diet play in treatment?
All insulin-treated patients require detailed diet management, including a prescription for their total daily caloric intake; guidelines for proportions of carbohydrate, fat, and protein in their diets; and instruction on distributing calories among individual meals and snacks.

In obese type 2 DM patients, the aims of diet management are losing weight and controlling hyperglycemia.

What role do oral medications have in type 2 DM?
If improvement in hyperglycemia is not achieved by a diet to achieve weight reduction in type II DM patients, a drug (an oral hypoglycemic agent) will be used.

Oral hypoglycemic agents are not useful in type I DM patients. They are unable to prevent symptomatic hyperglycemia or DKA in such patients.

The following categories of drugs are now available:
• Sulfonylureas - action is to stimulate the pancreatic beta cells to produce more insulin.
• Biguanides - action is to slow the ability of the liver to produce and release too much glucose.
• Glucoside inhibitors - action is to slow the digestion of some carbohydrates (starches).
• Thiazolidinediones - action is to make the muscle cells more sensitive to insulin.
• Meglitinides - action is to stimulate the pancreas to produce more insulin.

Sulfonylureas
First-generation sulfonylureas:
Tolbutamide (Orinase)
Acetohexamide (Dymelor)
Tolazamide (Tolinase)
Chloropropamide (Diabinese)

Second-generation sulfonylureas (more recently developed and about 100 times more potent than the first generation drugs):
Glipizide (Glucotrol)
Glyburide (Diabeta, Micronase)

Sulfonylureas have been available since the 1950’s but don’t work in 40% of type 2 diabetics. Because of progressive resistance after 1-2 years of use, they may have to be used with insulin.

Side effects/complications of sulfonylureas:
hypoglycemia - can be severe and may last or recur for days after treatment is stopped.
weight gain.
upset stomach.
skin rash or itching.

Biguanides
Metformin (Glucophage) - approved 1995.
Promotes weight loss and can improve blood fat and cholesterol levels. It does not result in hypoglycemia.

Side effects/complications of biguanides:
• digestive side effects - may be transient.
• contraindicated with kidney and liver diseases or alcoholism.
• may produce metallic taste in mouth.
• occasionally, weakness, fatigue, dizziness, shortness of breath.

Glucoside inhibitors (or alpha glucoside inhibitors)
Acarbose (Precose) - approved 1995.
Mitaglol (Glyset) - approved 1996.
Do not cause hypoglycemia.

Side effects/complications of glucoside inhibitors:
Gas, bloating, and diarrhea - often transient

Meglitinides
Repaglinide (prandin) - approved 1997.

Side effects/complications of meglitinides
hypoglycemia
weight gain

Thiazolidinediones
Pioglitazone (Actos) - approved 1999.
Rosaglitazone (Avendia) - approved 1999.
Troglitazone (Rezulin) - approved 1997, withdrawn 2000.
In March 2000, the U.S. Food and Drug Administration ordered an immediate recall of troglitazone (Rezulin) after it was linked to 28 deaths and cases of liver failure. It has been withdrawn from the market.

Side effects/complications of thiazolidinediones
symptoms of upper respiratory tract infection
headache
sinusitis
muscle pain
tooth disorder
sore throat.
weight gain
edema
anemia.

What are the benefits of treatment?
• Decreased risk of DKA or NKHHC.
• Less blurred vision and less risk of polyuria, polydipsia, fatigue, weight loss, vaginitis, etc.
• Greatly decreased risk of development or progression of diabetic retinopathy, nephropathy, and neuropathy.
• Improvement in blood lipids.

How is diabetes rated?
10% requires 1 criterion
diet.
20% requires 2 criteria
oral drugs and diet or
insulin and diet.
40% requires 3 criteria
insulin
diet
regulation of activity.
60% requires 5 criteria, one of which provides alternatives
insulin
diet
regulation of activity
(a) episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or (b) twice a month visits to a diabetic care provider
complications that would not be compensable if separately evaluated.
100% requires 5 criteria, 2 of which provide alternatives
more than one daily injection of insulin
restricted diet
regulation of activities
(a) episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or (b) weekly visits to a diabetic care provider
(a) progressive loss of weight and strength or (b) complications that would be compensable if separately evaluated.

Why are frequency of hospitalizations and visits to a diabetic care provider part of the evaluation criteria?
Frequency of health care visits and contacts and hospitalizations are used as criteria because they are an indicator of diabetic control and the severity of complications.
∗ Some patients require hospitalization for initiation or change of therapy.
∗ When starting insulin treatment or having a major change in insulin program, a patient may need to be in contact with their health care providers as often as daily.
∗ Patients beginning treatment with oral drugs may need to be in contact as often as weekly.
∗ Frequent contact may be required if undergoing intensive insulin therapy, are not meeting blood glucose or blood pressure goals, or have evidence of progressive microvascular or macrovascular complications.

What is different about examinations for DM?
Examinations for diabetes are generally more complex and time consuming than the average examination. Sometimes a complication is overlooked or fails to be reported by an examiner in the flood of medical findings.

In some cases, several medical specialty exams may be called for, although a general medical exam should be sufficient in most cases, except for vision and hearing problems, or unusually complex situations.

Failure of a rater, for whatever reason, to address all of the existing complications of diabetes is one of the common rating errors.

How are complications rated?
Complications of compensable degree are rated separately unless used to support a 100% evaluation. Therefore, many diabetic ratings will have to be evaluated under the eye, cardiovascular, genitourinary, musculoskeletal, neurologic, and other systems.

Cardiovascular complications are rated as discussed in the cardiovascular training - coronary artery disease, cardiomyopathy, peripheral atherosclerosis, amputation, etc. Strokes require rating in the neurologic system and sometimes genitourinary, digestive, and respiratory systems.

Diabetic eye diseases are rated as glaucoma, cataract, or retinopathy based on visual acuity, visual field loss, or diplopia, depending on the specific findings.

There is a wide range of possible ratings for diabetic nephropathy. It will be rated as renal dysfunction if renal function is affected, but as voiding dysfunction if there is incontinence from autonomic nephropathy. If chronic pyelonephritis is the problem, rating as urinary tract infection may be appropriate. Many may need to be rated as kidney transplant, hemodialysis, or nephrectomy.

Diabetic neuropathy has an even broader range of possible ratings. The effects may not be limited to paresthesias of the extremities that could be rated under 8521, for example, but may involve virtually any body system, since the entire nervous system except the brain may be involved. Therefore, there may be findings of the digestive system, cardiovascular system, genitourinary system, musculoskeletal system, etc., that need rating. Neuropathic joints, for example, may be rated as fracture or arthritis or instability.

Residuals of infections are another source of potentially great variation in rating. They range from osteomyelitis to stroke and cranial nerve paralysis, hearing loss, destruction of sinuses, foot ulcers, or gangrenous gall bladder.

On top of all this, there is the bilateral factor, the amputation rule, pyramiding, unemployability, and SMC to consider, since seldom is there a single issue to consider in diabetics once complications begin.

It’s safe to say that if you can rate diabetes well, you can rate almost anything well!

What are some Internet sources of information on diabetes?
http://www.niddk.nih.gov/...th/diabetes/diabetes.htm
Excellent comprehensive website from NIH.

http://www.medscape.com/
Extensive information, fairly technical, has search capability.

http://www.retinopathy.org/info02.htm
Clear information on diabetic eye disease.

http://www.intmed.mcw.edu...e/nephropathy/sld001.htm
Slide program with notes on nephropathy.

http://telemedicine.org/dm/dmupdate.htm
Atlas of skin diseases with color photographs of diabetic skin lesions.

http://www.nei.nih.gov/publications/retinopathy.htm
Diabetic eye disease in user-friendly language.

http://pharminfo.com/dise...tes/diab_info.html#drugs
Detailed technical information about drug treatment of diabetes.

October 24, 2002

Director (00/21) 211A
All VBA Regional Offices and Centers Training Letter 02-04


SUBJECT: Training letter on intervertebral disc syndrome

1. Enclosed is training material that includes both medical information and an explanation of the revised evaluation criteria for intervertebral disc syndrome.

2. A revised examination worksheet for diseases of the spine is also enclosed and should be used immediately (by faxing or mailing to medical facilities when requesting an examination), pending incorporation into the AMIE system. You will be notified when a patch incorporating the revised spine worksheet is made available for installation at medical facilities.

3. If you have any questions or comments about the content of this letter, or note any errors, please check the appropriate Calendar pages at: http://vbaw.vba.va.g...ar/calendar.htm.


/s/
Ronald J. Henke, Director
Compensation and Pension Service

Enclosure


Training Letter for Intervertebral Disc Syndrome

1. What is Intervertebral Disc Syndrome (IVDS)?

Definition: IVDS is a group of signs and symptoms resulting from displacement of an intervertebral disc or disc fragments at any level of the spine. There are usually pain and other signs and symptoms at or near the site of the disc, and there may be pain referred to more remote areas, plus neurologic abnormalities due to irritation or pressure on adjacent nerves or nerve roots.

Other names: IVDS may also be referred to as slipped, herniated, ruptured, prolapsed, bulging, or protruded disc, degenerative disc disease (DDD), sciatica, discogenic pain syndrome, herniated nucleus pulposus, pinched nerve, etc. There may be some differences, but these terms are not well-defined and are often used interchangeably.

Components: IVDS commonly includes back pain and sciatica (pain along the course of the sciatic nerve) in the case of lumbar disc disease, and neck plus arm or hand pain in the case of cervical disc disease. It may also include scoliosis, paravertebral muscle spasm, limitation of motion of the spine, tenderness over the spine, limitation of straight leg raising, and neurologic findings corresponding to the level of the disc. If the disc compresses the cauda equina (the collection of nerve roots extending from the lower end of the spinal cord), bowel or bladder sphincter functions or sexual function may also be affected.

Frequency of location:
• Lumbar IVDS accounts for 62% of all disc disease.
All but 10% of lumbar IVDS is at the L4-L5 or L5-S1 level.
• Cervical IVDS accounts for 36% of all disc disease.
The C6-C7 level is the most common, and the C5-C6 level the next most common level for cervical IVDS.
• IVDS is uncommon in the thoracic area, where the spine is less mobile.

1. What is the pertinent anatomy for IVDS?

Two anatomic areas are of importance in IVDS: the spine itself and the area(s) innervated by any nerves that are affected due to compression of the nerve roots, spinal nerves, or spinal cord by a displaced disc or disc fragments.
Spine
• The vertebral column is made up of 33 bony vertebrae: 7 cervical, 12 thoracic, 5 lumbar, 5 sacral (fused into one bone, the sacrum), and 4 coccygeal (fused into one bone, the coccyx).
• The vertebral bodies are separated from one another by intervertebral discs, which are spongy circular cushions made up of cartilage and fibrous tissue. Each disc consists of a tough outer ring called the annulus fibrosis and an inner softer, jelly-like, core called the nucleus pulposus. The upper and lower surfaces of a disc are the cartilaginous endplates.
• Discs, or intervertebral discs, are named according to the number of the vertebrae above and below. Therefore, the disc between the second and third lumbar vertebrae is called the L2-L3 disc, and the disc between the fifth lumbar and first sacral vertebrae is called the L5-S1 disc.

Nerves
• Each segment of the spinal cord gives off a ventral or anterior motor nerve root and a dorsal or posterior sensory nerve root. These two roots join to form a spinal nerve at each segment of the spine. The nerve roots themselves may be damaged by disc disease, but they are particularly vulnerable to pressure from disc disease at the point at which the two roots unite. Irritation or compression of a nerve root by disc disease may lead to pain and other symptoms.

• Nerve root damage from any cause is called radiculopathy. Radiculitis means inflammation of a nerve root and is sometimes used interchangeably with radiculopathy. Radicular refers to the nerve root (or radicle) of a nerve.

• Disc disease may affect either the nerve root that is above the level of the disc or the one below, or both, depending on the site and extent of the disc herniation. This means that an L4-L5 herniated disc, for example, may cause radicular pain and other findings in the area innervated by the L4 spinal nerve, the L5 spinal nerve, or both. Therefore, clinical findings due to IVDS at any given level may vary from individual to individual.

3. What causes IVDS?

With aging, the disc tends to dry out and shrink, causing the annulus fibrosis to deteriorate and bulge outward. This is a bulging disc. With continued degeneration due to mechanical stress, wear and tear, or trauma, the annulus may tear and allow the nucleus pulposus to extrude or rupture through the tear into the spinal canal. This is a ruptured or herniated disc.

With advancing age, degenerative disc disease (DDD) is very common. However, not everyone with DDD is symptomatic. Most symptomatic lumbar disc disease occurs between ages 40-55. Cervical disc disease is more common at an older age. A person who had one disc herniation is at increased risk for another.

Risk factors for IVDS include genetic factors, being a male, having a smoking history, and having a job that involves heavy lifting, bending and twisting into awkward positions, or prolonged whole body vibration. Occupations at risk include long distance truck drivers, soccer players, golf players, and competitive weight lifters.



1. What are the signs and symptoms of IVDS?

The signs and symptoms depend on the level of the spine where the disc is located, the specific location of the disc herniation or protrusion (anterior, posterior, or central), and whether spinal nerve roots, spinal nerves, or the spinal cord are affected.
Although specific nerve roots supply motor branches to certain muscles and sensory branches to certain areas of the skin (or dermatomes), two or more nerve roots may overlap in function.

a. Onset of symptoms varies, but commonly begins either as gradual, progressive back pain; sudden back pain after significant trauma; or back pain after minor trauma.

b. Lumbar IVDS
Pain
• Back pain may be the primary symptom, but pain in the distribution of the irritated or compressed nerve root may also be primary. However, some people have no back pain at all.
• There may also be "referred" pain in the buttocks, sacroiliac joints, and thighs. Referred pain is pain perceived in an area of the body that is far away from the site of pathology.
• May be sciatica, which is sharp, burning, or stabbing pain radiating from the low back down the posterior thigh and posterolateral lower leg, and possibly into the side of the foot. It is due to S1 or L5 radiculopathy.
• Pain is worse when sitting and standing than when lying down, and coughing, sneezing, bending, or heavy lifting may aggravate the pain.

Sensory abnormality - The exact area of numbness or other abnormal sensations, if any, is determined by the particular nerve root affected, and may be in the inner ankle, the great toe, the heel, the outer ankle, the outer leg, or a combination.

Motor abnormality - Weakness or paralysis depends on the particular nerve root affected, and may affect ankle upward or downward motion or dorsiflexion of the great toe on the affected side.

Reflexes - There may be abnormal deep tendon reflexes of knee (patellar) or ankle (Achilles tendon).

Other - There may be bowel or bladder or sexual dysfunction. This is most common with cauda equina syndrome, which is compression of the collection of nerves below the termination of the spinal cord.

Neurological findings - All signs and symptoms not directly in the local area of the back at the disc level, such as motor loss (weakness, paralysis, muscle atrophy), sensory loss (numbness, pain, tingling or other abnormal sensations of the leg or foot), abnormal reflexes, and bowel, bladder, or sexual impairment) represent neurological findings.

Orthopedic findings - Signs and symptoms related to the back at or near the level of the disc, such as pain, tenderness, muscle spasm, limitation of motion, scoliosis, etc., represent orthopedic, but not neurologic, findings.

Common, but not universally present, findings for most frequent levels of lumbar IVDS
• L4-5 IVDS may include pain in posterior or posterolateral thigh radiating to top of foot; weakness of dorsiflexion of the great toe or the ankle; sensory change of great toe, numbness and pain of dorsal surface of lower leg and foot. No reflex abnormalities.

• L5-S1 IVDS may include pain along posterior thigh with radiation to heel, and lateral calf, lateral aspect of foot; weakness or absence of ankle plantar flexion) and eversion of foot; sensory loss of lateral foot and heel; and decreased or absent Achilles (ankle jerk) reflex.

a. Cervical IVDS
Pain
• Neck pain
• Pain radiating down the arm (brachialgia). The pain may be sharp, burning, stinging, or stabbing in the arm, elbow, wrist or fingers, depending on the disc site. It is the upper extremity equivalent of sciatica in the lower extremity.
• May be referred pain in the upper middle of the back.

Sensory abnormality - May be numbness, burning, or weakness in the arm and hand.

Motor abnormality - If there is pressure on the spinal cord, there may be weakness in the legs, shock-like pain down the spine, numbness, or poor coordination.

Other - Headache is common. Cervical problems tend to be less debilitating than lumbar problems.

Common, but not universally present, findings for most frequent levels of cervical IVDS
• C5-C6 IVDS may include weakness of elbow flexion and wrist extension and sensory loss of lateral forearm, thumb, and lateral part of index finger.

• C6-C7 IVDS may include pain in the lateral forearm, thumb, and index finger; weakness of elbow and wrist extension; sensory loss of the long finger; and a decreased triceps reflex.

d. Nerve root tension signs
• Straight leg raising (SLR) test is done by gently lifting the relaxed, extended lower extremity to approximately 90 degrees, with the patient lying supine. This stretches the sciatic nerve and reproduces sciatic pain. The normal limit without pain when there is no sciatic nerve abnormality is between 60 and 120 degrees, depending on the patient's age, habitus, and physical condition. The amount of pain-free flexion is less important than variation between the legs. SLR, while sensitive, is non-specific because it may be limited or painful because of tight hamstring muscles, sacro-iliac joint pathology, or radiculitis.
• Lasegue's sign is worsening of the pain in a SLR test by dorsiflexing the foot.

e. Characteristics of nerve root compression.
• The hallmark is pain. This may be associated with abnormal sensations
(paresthesias) such as tingling or increased sensitivity, or with sensory loss in a dermatomal distribution.
• There may be weakness of muscles innervated by the nerve root.

f. Signs to identify nonorganic back pain that may accompany back problems, and that may indicate the need to consider psychological factors.

Waddell signs are 8 reliable and reproducible signs that suggest nonstructural problems in individuals with back pain. Some patients with physical back problems may have one or two positive Waddell signs on the basis of anxiety or the desire to please the examiner. However, three or more positive signs have a greater predictive value that psychological factors also need to be considered.
• Superficial (skin) tenderness on light palpation.
Positive when the skin is tender to light touch.
• Nonanatomic pain or tenderness
Positive when there is pain or tenderness extending over a wide area involving more than one structure unless there is a reasonable explanation.
• Axial loading that increases pain
Positive if pressing down on the top of the head of a standing patient produces low back pain. It could cause neck pain but should not cause low back pain.
• Rotation
Positive if passive rotation of shoulders and pelvis to 30 degrees in a standing position causes back pain.
• Distracted straight-leg raise
Patient may complain of pain or limitation of motion in a normal SLR test but not when examiner extends the knee with the patient seated, while examining the foot, etc. Such inconsistency is a positive sign.
• Regional sensory change
Positive if does not correspond to a neuroanatomic or dermatomal distribution, e.g., "stocking" or global distribution of numbness.
• Regional weakness
With true muscle weakness, there should be a smooth, non-jerky motion when range of motion is resisted. Positive if there is a sudden letting go of the muscle with "cogwheeling," "give-way," or "breakaway" weakness.
• Overreaction
Positive if there is inconsistent hypersensitivity to light touch or an exaggerated, nonreproducible response, such as excessive grimacing, tremors, etc. But cultural and individual differences, as well as observer bias, must be taken into consideration.

Other
• McBride's test: Patient stands on one leg while raising the opposite knee to the chest. Because the knee is bent, no sciatic stretch occurs, and the spine is flexed, which removes pressure, so this should lessen low back pain. A reported increase in pain, or a refusal to do the test, is a positive sign.
• Burn's test: Patient is asked to kneel on a chair and touch the floor. Since the knees are bent, patients with true back pain or sciatica should be able to do the test without much difficulty. Those with nonorganic back pain usually cannot.

g. Deep tendon reflexes (DTR’s)
Various grading scales are used to assess DTR's. Here is one commonly used scale:
0: absent reflex
1+: low normal, or hyporeflexive (or seen only with reinforcement)
2+: normal
3+: brisk
4+: very brisk, or hyperreflexive, with nonsustained clonus (i.e., repetitive vibratory movements)
5+: sustained clonus

• DTR’s under this scale are considered normal if they are 1+, 2+, or 3+ unless they are asymmetric (not the same on both left and right sides) or there is a dramatic difference between the arms and the legs.
• Reflexes rated as 0, 4+, or 5+ are usually considered abnormal.
• Reinforcement consists of having patients clench their teeth, or for lower extremity reflexes, hook together their flexed fingers and pull apart.

Another DTR rating scale runs from zero to four, with zero being absent, 1 being hypoactive, 2 being normal, 3 being slightly hyperactive, and 4 being maximally hyperactive with clonus.

1. How is IVDS diagnosed?

a. Clinical findings are always a significant factor in diagnosis because neurodiagnostic imaging studies show positive findings in at least one-third of patients who are free of symptoms.
b. X rays: Can demonstrate bony alignment and may show decreased disc height, but do not show a disc fragment compressing a nerve. Have limited value because degenerative changes are age-related and are equally present in asymptomatic and symptomatic persons. However, they help rule out tumors, infections, and fractures.
c. Magnetic Resonance Imaging (MRI): Is the gold standard for visualizing a herniated disc. It can show annular tears and other anatomic details. Does not require an injection.
d. Computed Tomography/ Myelogram (CT Myelogram): A myelogram is an x-ray taken after contrast material is injected into the spinal canal to outline the spinal cord and nerves. Herniated disc fragments or bone spurs compressing the nerves are well visualized but it is inferior to MRI in soft tissue detail. Largely replaced by MRI, which does not require injection.
e. Electromyogram and Nerve Conduction Studies (EMG/NCS): Done in selected cases to assess function of a compressed nerve.
f. Discography: Injection of contrast material directly into a disc. Usually done with CT.

1. How is IVDS treated?

Conservative therapy - the first line of treatment unless there is severe nerve involvement. May include any or all of the following:
• limited bed rest (2-7 days generally, but rarely up to 2 to 4 weeks)
• education on proper body mechanics
• physical therapy, such as ultrasound, heat or ice, massage, conditioning, and exercise programs
• traction
• electric nerve stimulation
• trigger point injections
• weight control
• lumbosacral back support - braces or corsets
• medications, such as analgesics, anti-inflammatory drugs, and muscle relaxants

Most patients recover within four weeks of onset of symptoms, regardless of type of treatment. Sciatica resolves in 75% of patients within six months. When conservative therapy fails (which occurs in about 10%), surgery may be needed.

Indications for surgery:
• progressive neurologic deficit
• profound neurologic deficit
• severe and disabling pain refractory to 4 to 6 weeks of conservative treatment.
• cauda equina syndrome

Common types of surgery
• Laminectomy: traditional surgery performed for lumbar IVDS to relieve pressure on one or more nerve roots. The posterior arch of the spine (lamina) is removed to create more space for the nerve root, in order to relieve compression. Part of the disc may be removed, as may bony spurs and scar tissue.

• Laminotomy: newer, less invasive type of surgery for lumbar IVDS, in which only the small area of the lamina directly surrounding the affected disk, instead of the whole back of the lamina, is removed. This keeps the spine more stable.

• Anterior cervical decompression, with or without fusion: surgery for cervical IVDS, in which the disc material is removed and the spine may be fused at the level of the abnormal disc.

After successful surgery, 80-85% of patients do extremely well and are able to return to work in about six weeks. Small areas of leg numbness may remain. Mild flare-ups of sciatic type pain occasionally develop.

1. How is IVDS rated?

a. IVDS that is primarily disabling because of periods of acute symptoms that require bedrest according to the cumulative amount of time over the course of a year that the patient is incapacitated, i.e., requires bed rest and treatment by a physician, is evaluated at 60 percent if there are incapacitating episodes of at least six weeks total duration during the past 12 months; at 40 percent if there are incapacitating episodes of at least four but less than six weeks total duration during the past 12 months; at 20 percent if there are incapacitating episodes of at least two but less than four weeks total duration during the past 12 months; and at 10 percent if there are incapacitating episodes of at least one but less than two weeks total duration during the past 12 months.

b. IVDS that is disabling primarily because of chronic orthopedic manifestations (e.g., painful muscle spasm or limitation of motion), chronic neurologic manifestations (e.g., footdrop, muscle weakness or atrophy, or sensory loss), or a combination of both, is evaluated by assigning separate evaluations for the orthopedic and neurologic manifestations, using diagnostic code 5293 hyphenated with the appropriate orthopedic (musculoskeletal) or neurologic code.

c. When IVDS is disabling both because of incapacitating episodes and persistent orthopedic or neurologic manifestations, whichever alternative method of evaluation results in a higher evaluation is used.

d. The great majority of cases will be more favorably evaluated under the method in "b".

e. To determine which method results in the higher evaluation:
• Calculate the percentage evaluation based on the cumulative amount of time over the course of the past 12 months that the patient is incapacitated, and combine with the evaluation for all other service-connected disabilities.
• Calculate the percentage evaluation based on the orthopedic and neurologic manifestations, and combine with the evaluation for all other service-connected disabilities.
• Compare the two overall evaluations, and assign an evaluation for IVDS based on the method that results in the higher evaluation.

f. Sciatic nerve functions.
• Made up of nerve roots L4, L5, S1, S2, and S3.
• Supplies the muscles of the back of the knee and lower leg and sensation to the back of the thigh, part of the lower leg, and the sole of the foot.
• Incomplete damage may appear identical to damage to one of its branches (tibial or common peroneal nerve).
• Sensory abnormalities may include sensory changes of the back of the calf or the sole of the foot, such as numbness, tingling, burning, pins and needles sensation, other abnormal sensations, and any level of pain up to excruciating pain.
• Motor loss may include weakness of the knee or foot leading to difficulty walking, weakness or loss of knee flexion, and weakness or loss of foot inversion and plantar flexion.
• Reflexes may be abnormal, with weak or absent ankle-jerk reflex.

g. Common peroneal nerve functions:
• Derived from nerve roots L4, L5, S1, and S2.
• Sensory abnormalities may be loss of sensation, numbness, or tingling of the anterolateral lower leg and dorsum of foot & toes.
• Motor loss may include weakness or loss of dorsiflexion and eversion of foot, loss of extension of toes, and possibly footdrop.

h. When selecting which code to use in a particular case of lumbar IVDS, note that common peroneal nerve function is limited to the lower leg and foot, while the sciatic nerve can affect the knee and even higher areas of the leg. Remember that sensory loss only should be rated at the mild, or at most, the moderate degree of peripheral nerve paralysis (See 38 CFR 4.124a in the paragraph introducing "Diseases of the Peripheral Nerves".)

1. How do the new evaluation criteria for IVDS compare to the old ones?

The former evaluation criteria for IVDS (DC 5293) included a 60-percent evaluation for persistent sciatic neuropathy or other neurologic findings, with little intermittent relief; a 40-percent evaluation for severe recurring attacks; a 20-percent evaluation for moderate recurring attacks; a 10-percent evaluation for a mild condition; and a zero-percent evaluation for the postoperative, cured condition.

These required a subjective determination as to whether the condition is "mild," "moderate," or "severe" and raised questions as to when a 60-percent evaluation was warranted on the basis of neurologic manifestations. There was also uncertainty about whether IVDS with neurologic manifestations could be evaluated higher or lower than 60 percent. This subjectivity has been removed.

Alternative criteria allow evaluation under the method most beneficial to the veteran, and the revised criteria can all be applied to either the pre-operative or post-operative state.

2. What are some problems related to examinations for IVDS?

Unless done by an orthopedic or neurologic specialist, examinations for IVDS have often been less than adequate, but nonetheless have been accepted for rating purposes. The neurological component of the examination (assessing motor loss, sensory loss, and reflexes) in particular has often been incomplete or lacking. However, it is not necessary for rating purposes that all examinations for IVDS be conducted by a specialist.

A revised spine examination worksheet is included with this letter. Note the detailed information and examination findings that it calls for.

3. Is there a revised spine examination worksheet?

A revised examination worksheet for the spine is included with this letter. It is now being programmed into AMIE. Until that is completed, you should fax the revised worksheet to examiners.

4. What are some problems related to rating IVDS?

a. Some raters seem unaware of what the possible neurological findings in IVDS are.

Example: A veteran was evaluated at 40% for lumbar IVDS. A reexamination showed decreased sensation of the arch of the foot and decreased strength of plantar flexion and dorsiflexion of the foot. The rating continued 40% "in the absence of neurological findings". However, decreased sensation of the foot and muscle weakness of the foot are both neurological abnormalities, and the rating should have taken that into account.

In the same case, a later examination showed deep tendon reflexes, motor strength, and sensation normal (meaning there were no longer any abnormal neurological findings). The diagnosis was osteoarthritis with chronic pain syndrome. However, the rating following that examination erroneously increased the evaluation to 60% because "there were findings of neurological pathology".

This letter discusses many neurological findings that may be seen with IVDS at various levels. In general, neurological abnormalities consist of:
• motor abnormalities, such as muscle weakness, paralysis, and atrophy;
• sensory abnormalities, such as numbness, tingling, and pain (in areas other than the area of the neck or back at or near the disc site)
• abnormal reflexes, depending on the site of the IVDS.
• SLR and Lasegue’s sign may confirm sciatic nerve involvement.

b. Raters do not always insist on an adequate examination.

Example: One veteran was suspected by the examiner of malingering. An inadequate examination, which was the only examination of record, was performed. It did not include any of the tests described under #4d or f. Nevertheless, the veteran was assigned 60%.

Example: WWII POW had DDD diagnosis. Examination showed lumbar spine flexion of 60 degrees, left and right bending of 20 degrees. Neurological examination was called "grossly normal". However, a separate examination for cold injury residuals found sensory and motor neuropathy of lower extremities. This discrepancy called for reconciliation of the strikingly different neurologic findings, and an opinion as to whether the findings are all due to cold injury or whether any may be due to DDD, but this was not requested. DDD was rated at 40% without further examination.

c. Overevaluations

Some raters have overevaluated IVDS by assigning 60% under diagnostic code 5293 and a separate 40% or 60% for sciatic or common peroneal nerve dysfunction based in part on the same signs and symptoms. This represents pyramiding (per § 4.14), since some of the same signs and symptoms (leg or foot weakness or sensory loss) were used to support two separate evaluations. The revised evaluation criteria, where the (orthopedic) neck or back problems and the (neurologic) sensory or motor abnormalities remote from the disc site are evaluated separately should eliminate this problem.

Example: Vietnam veteran had low back pain radiating down his right leg. He had 2 back surgeries but had recurrence of the same pain. He was rated at 40%. Later, the evaluation for the back was increased to 60%, and 40% was assigned for peripheral neuropathy of each leg based on an exam that showed lumbar flexion to 40 degrees, right and left lateral flexion to 15, and extension to 15; 50% decrease in sensation (pinprick and light touch) from knees to toes; and motor strength of both legs of 4+/5. 40% for each leg seems appropriate for the neuropathy, but the same findings can not also be used to support an increase under 5293. The leg pain, weakness, and sensory changes should be used to support the evaluation of one or the other, but not both.

Example: DDD was diagnosed in service. One year later, the veteran was rated at 60% following post op surgery for DDD at 2 levels. After an auto accident many years later, the rating was increased to 60% for the back, 60% for the bladder, and 60% for footdrop (under 8520). This veteran declined to leave his wheelchair for the exam, so his back was not actually examined. There seems no justification to continue the 60% evaluation for the back and add 60% for the leg without an adequate examination. This represents both pyramiding and failure to require an adequate examination.

12.What are some important rating points under the revised evaluation criteria?

• First, the alternative methods of evaluation must always be considered and the method more favorable to the veteran (after combining all evaluations for SC conditions) applied.

• Second, insisting upon a comprehensive and adequate examination that follows the examination worksheet guidelines and includes assessments of both the back or neck area and a neurologic assessment of affected extremities (and other areas, such as bladder, when indicated) is the best way to assure that an evaluation accurately reflects the veteran's disability. Accepting an examination that is less than complete may shortchange the veteran and make the evaluation inaccurate.

• Third, the neurologic and orthopedic evaluation criteria used must be carefully selected to make sure they are the most appropriate. (Both the neurologic and spine sections of the rating schedule are in the process of being revised, so the available evaluation criteria will be changing.)

Example: Veteran was diagnosed with L4-L5 IVDS in service based on an MRI. His initial post-service examination noted history of intermittent, but severe, sharp low back pain with radiation down the back of the left leg and more persistent milder low back pain. He had also noted some left foot burning and numbness. His records documented 12 days of prescribed bedrest and treatment for his back during the past 12 months.

On examination he had 75 degrees of forward flexion of the lumbar spine, 30 degrees of extension, 25 degrees of left and right rotation, and 25 degrees of left and right lateral flexion. He had tenderness to deep palpation at the L4-L5 level and slight paraspinous muscle spasm in the lower lumbar area. His deep tendon reflexes showed 1+ ankle reflex on the left and 2+ on the right. He had mild weakness of dorsiflexion of the left great toe and numbness of the great toe and part of the top of the foot. His gait was essentially normal. His SLR test was positive at 40 degrees on the left and at 60 degrees on the right. Lasegue’s sign was positive on the left but negative on the right. The examiner estimated, based on the veteran’s history, that back motion was essentially lost during the periods when bedrest was required, because of pain and muscle spasm. The veteran said the acute episodes of back and leg pain appeared suddenly and eased off after 2 to 3 days of bedrest, analgesics, and muscle relaxants. The diagnosis was IVDS at L4-L5 with left sciatic neuropathy. He was also service-connected for arteriosclerotic heart disease evaluated at 30%, bilateral hearing loss evaluated at 20%, and a tender scar on his right arm evaluated at 10%.

Evaluating on the basis of incapacitating episodes, the evaluation would be 10% (12 days is at least one week but less than two weeks during the past 12 months). Combining that with the evaluations for other conditions would result in a combined evaluation of 60%.

Separately evaluating the orthopedic and neurologic manifestations, the limitation of motion of the back is currently mild, but since he has had several episodes during the past year when the pain was severe, and limitation of motion was estimated to be severe during those episodes, a 20% evaluation would be more appropriate. His neurological problems of sciatic pain, mild toe weakness, and minor sensory loss of the toe and foot represent moderate, incomplete paralysis of the sciatic nerve (8520), for a 20% evaluation. Combining these 2 evaluations with his other SC conditions combines to 70%.

Most beneficial evaluation: Therefore, in this case, as will be true in the majority of cases, separately evaluating the chronic orthopedic and neurological evaluations is the method most beneficial to the veteran, and should be the basis of evaluation.

Compensation and Pension Examination

SPINE (CERVICAL, THORACIC, AND LUMBAR)

Name: SSN:

Date of Exam: C-number:

Place of Exam:

A. Review of Medical Records: Report whether done or not.

B. Present Medical History (Subjective Complaints):
1. Report complaints of pain (including any radiation), stiffness, weakness, etc.
a. Onset
b. Location and distribution
c. Duration
d. Characteristics, quality, description
e. Intensity
1. Describe treatment - type, dose, frequency, response, side effects.
2. If there are periods of flare-up:
a. State their severity, frequency, and duration.
b. Name the precipitating and alleviating factors.
c. Describe any additional limitation of motion or functional impairment during the flare-up.
1. Describe associated features or symptoms (e.g., weight loss, fevers, malaise, dizziness, visual disturbances, numbness, weakness, bladder complaints, bowel complaints, erectile dysfunction).
2. Describe walking and assistive devices.
a. Walk unaided? Use of a cane, crutches, walker?
b. Use of orthosis (brace)?
c. How far and how long can the veteran walk?
d. Unsteadiness? Falls?
1. Describe details of any trauma or injury, including dates, and direction and magnitude of forces.
2. Describe details of any surgery, including dates.
3. Functional Assessment - Describe effects of the condition(s) on the veteran's mobility (e.g., walking, transfers, bed activities), activities of daily living (i.e., eating, grooming, bathing, toileting, dressing), usual occupation, recreational activities, driving.

C. Physical Examination (Objective Findings):
Address each of the following as appropriate to the condition being examined and fully describe current findings:
1. Inspection: spine, limbs, posture and gait, position of the head, curvatures of the spine, symmetry in appearance, symmetry and rhythm of spinal motion.
2. Range of motion
a. Using a goniometer, measure the range of motion, and show each measured range of motion (flexion, extension, etc.) separately rather than as a continuum. Measure active range of motion, and passive range of motion if active range of motion is not normal.
b. State the normal range of motion when providing spine range of motion. For example, state forward flexion of the lumbar spine is 80 out of 90 degrees, and backward extension is 20 out of 35 degrees. (See Chapter 11 of Clinician's Guide for more detailed discussion of spine range of motion.)
c. If the range of motion is affected by factors other than spinal injury or disease, such as the claimant's body habitus, provide an estimated normal range of motion for that particular individual.
d. If the spine is painful on motion, state at what point in the range of motion pain begins and ends.
e. State to what extent (if any), expressed in degrees if possible, the range of motion is additionally limited by pain, fatigue, weakness, or lack of endurance following repetitive use or during flare-ups. If more than one of these is present, state, if possible, which has the major functional impact.
1. Describe objective evidence of painful motion, spasm, weakness, tenderness, etc.
2. Describe any postural abnormalities, fixed deformity (ankylosis), or abnormality of musculature of back.
3. Neurological examination
a. Sensory examination, to include sacral segments.
b. Motor examination (atrophy, circumferential measurements, tone, and strength).
c. Reflexes (deep tendon, cutaneous, and pathologic).
d. Rectal examination (sensation, tone, volitional control, and reflexes).
e. Lasegue's sign.
f. If the neurologic effects are not encompassed by this part of the examination (e.g., if there are bladder problems), follow appropriate worksheet for the body system affected.
1. For vertebral fractures, report the percentage of loss of height, if any, of the vertebral body.
2. Non-organic physical signs (e.g., Waddell tests, others).

D. For intervertebral disc syndrome
1. Conduct and report a separate history and physical examination for each segment of the spine (cervical, thoracic, lumbar) affected by disc disease.
2. Conduct a complete history and physical examination of each affected spinal segment, whether or not there has been surgery, as described above under B and C.
3. Conduct a thorough neurologic history and examination, as described in C5, of all areas innervated by each affected spinal segment. Specify the peripheral nerve(s) affected. Include an evaluation of effects, if any, on bowel or bladder functioning.
4. Describe as precisely as possible, in number of days, the duration of each incapacitating episode during the past 12-month period. An incapacitating episode, for disability evaluation purposes, is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.

E. Diagnostic and Clinical Tests:
1. Imaging studies, when indicated.
2. Electrodiagnostic tests, when indicated.
3. Clinical laboratory tests, when indicated.
4. Isotope scans, when indicated.
5. Include results of all diagnostic and clinical tests conducted in the examination report.

F. Diagnosis:

Signature:

February 4, 2010
Director (00/21) In Reply Refer To: 211A
All VA Regional Offices Training Letter 10-01
SUBJ: Adjudicating Claims Based on Service in the Gulf War and Southwest Asia

Purpose

Compensation and Pension (C&P) Service is providing the following information and guidelines in order to promote regional office awareness, consistency, and fairness in the handling of disability claims from Veterans with service in Southwest Asia.
Background

The United States military presence in Southwest Asia began in 1990 with Operations Desert Shield and Desert Storm. Troops remain in the theater of operations and currently support Operations Enduring Freedom and Iraqi Freedom.

After the initial Operations Desert Shield and Desert Storm, Congress set forth statutory directives, codified at 38 U.S.C. § 1117, upon which the regulations at 38 C.F.R. § 3.317 are based. These laws address a range of chronic disabilities reported by Veterans who served in Southwest Asia that do not correspond to recognized categories of diseases. The directives and regulations defined such disabilities as “undiagnosed illnesses”; however, subsequent amendments to 38 U.S.C. § 1117 expanded the definition of a chronic disability to include certain diagnosed illnesses with inconclusive etiologies.

These statutory and regulatory provisions apply to any Veteran who served in Southwest Asia, even though their establishment arose from Operations Desert Shield and Desert Storm. As such, adjudication of disability claims for certain diagnosed chronic illnesses from Veterans who served in Southwest Asia differs from procedures for other disability claims.

Questions

Questions can be e-mailed to VAVBAWAS/CO/211/ENVIRO.
/s/
Bradley G. Mayes,
Director
Compensation and Pension Service
******************

Adjudicating Claims Based on Service in the Gulf War and in Southwest Asia

I. Introduction

History of Disability Patterns Associated with Gulf War and Southwest Asia Service

The first Gulf War of 1990-1991, sometimes referred to as the Persian Gulf War, resulted in the liberation of Kuwait from the hostile military forces of Iraq. Operations Desert Shield and Desert Storm involved nearly 700,000 United States service personnel. The initial military operation was successful and relatively short-lived, but led to a continuing presence of United States military personnel in Southwest Asia, and ultimately to the current Gulf War’s Operation Enduring Freedom in Afghanistan and Operation Iraqi Freedom in Iraq.

Following cessation of initial Gulf War military operations in 1991, Veterans of this conflict began to report patterns of chronic debilitating medical symptoms. They typically included some combination of chronic headaches, cognitive difficulties, widespread bodily pain, unexplained fatigue, chronic diarrhea, skin rashes, respiratory problems, and other abnormalities. These symptoms did not correspond easily to recognized categories of diseases and presented a problem for health care diagnoses and treatment procedures, as well as for regional office decision makers attempting to adjudicate claims for disability compensation. Because the problem involved a significant percentage of Gulf War Veterans, estimated at 25 percent, the Department of Veterans Affairs (VA) initiated studies seeking to explain these chronic illness patterns.

Numerous scientific studies have been conducted, including a series by the National Academy of Sciences’ Institute of Medicine (IOM) and a recent study by the Research Advisory Committee on Gulf War Veterans’ Illnesses (RAC). The goal of these studies has been to explain disability patterns associated with Gulf War service in terms of the potential health hazards experienced in the Southwest Asian environment. Among the environmental hazards linked to service during the initial Gulf War are: smoke and particles from over 750 Kuwaiti oil well fires; widespread pesticide and insecticide use, including personal flea collars; infectious diseases indigenous to the area, such as leishmaniasis; fumes from solvents and fuels; ingestion of pyridostigmine bromide tablets on a daily basis, as a nerve gas antidote; the combined effect of multiple vaccines administered upon deployment; and inhalation of ultra fine-grain sand particles. Although IOM studies have produced inconclusive results regarding the specific effects of the environmental hazards on Gulf War Veterans’ health, the RAC study indicates that service in Southwest Asia may be associated with disturbances of the brain and central nervous system, including dysfunctions of the autonomic nervous system, neuromuscular system, neuroendocrine system, and sensory systems, as well as the immune system.
Although most studies have focused on the initial Gulf War, information is accumulating that indicates environmental hazards may also be widespread in the current theater of Gulf War operations and may contribute to the disability patterns typically associated with Southwest Asia service.

Gulf War Legislation and Regulations

In 1994, Congress enacted the “Persian Gulf War Veterans’ Benefits Act,” which is codified at 38 U.S.C. § 1117. This legislation sought to promote research on the medical disability patterns associated with Gulf War service and to provide compensation for “disabilities resulting from illnesses that cannot now be diagnosed or defined, and for which other causes cannot be identified.” Through this legislation, the term “undiagnosed illnesses” was introduced and incorporated into VA regulations at 38 C.F.R. § 3.317.

As more research was conducted and more knowledge of the disability patterns associated with Gulf War and Southwest Asia service accumulated, Congress amended § 1117 in 2001 by expanding the associated disabilities to include “medically unexplained chronic multisymptom illnesses.” The Congressional Joint Explanatory Statement accompanying this statutory amendment described the new terminology as “a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.” This language was subsequently incorporated into the revised VA regulations at § 3.317. The result of this change was to include both “undiagnosed illnesses” and certain “diagnosed illnesses” under the overarching heading of “a qualifying chronic disability.” Examples of qualifying chronic disabilities were identified by Congress and incorporated into VA regulations. These included chronic fatigue syndrome, irritable bowl syndrome, and fibromyalgia.

Although these three chronic disabilities were intended by Congress to serve as examples, the amended regulation indicated that they were the only disability patterns available for consideration as medically unexplained chronic multisymptom illnesses. Because military personnel continue to operate in Southwest Asia and continue to be exposed to potential environmental hazards, including some not experienced during the initial 1990-1991 Gulf war, C&P Service has determined that an adjustment to the regulation is in order. Therefore, § 3.317 will be amended to clarify that the three currently listed medically unexplained chronic multisymptom illnesses are only examples and are not exclusive. This will allow medical examiners more latitude in evaluating disability patterns based on service in Southwest Asia.

II. Adjudication Guidelines for Regional Offices

Qualifying Veterans

Although the initial directives for adjudicating disability patterns associated with Gulf War service were intended to assist Veterans of the 1990-1991 Persian Gulf War, they remain in effect today and must be applied to all veterans with Southwest Asia service. The regulatory definition of a “Persian Gulf Veteran” provided in § 3.317 includes service in a large area of Southwest Asia, but does not include Afghanistan. Considering the importance of current U.S. military operations in Afghanistan and its environmental similarity to all other regions of Southwest Asia, C&P Service has determined that Veterans with service in Afghanistan fall under all laws related to Gulf War and Southwest Asia service. A regulatory amendment to make this official is forthcoming.

Types of Claims Involved

Disability claims based on Gulf War and Southwest Asia service are generally filed directly by the Veteran. Many were filed in the years following the initial 1990-1991 Gulf War and the rate of filing from these Veterans has diminished. However, such filings continue to occur because of the chronic nature of the disability patterns. Additionally, current evidence indicates that environmental hazards similar to those faced during the initial Gulf War, as well as new potential hazards, are faced by troops currently serving in Iraq and Afghanistan. Therefore, regional office personnel must be aware that a variety of disabilities may affect any Veteran with Southwest Asia service. This means that a thorough review of medical evidence associated with claims from these Veterans is necessary to identify any signs and symptoms potentially associated with Southwest Asia service that are not directly claimed.

Threshold Requirements for Service Connection

Veterans with objective indications of a qualifying chronic disability associated with service in Southwest Asia may be service connected only if the disability became manifest during military service in Southwest Asia or to a degree of 10 percent or more, not later than December 31, 2011. This date will likely be extended by Congressional action. In addition, to establish the chronic nature of the disability, it must exist for at least 6 months or exhibit intermittent episodes of improvement and worsening over at least a 6-month period.

Service connection will not be granted if there is affirmative evidence that the qualifying chronic disability:
(1) was not incurred during active military service,
(2) was caused by intervening conditions or events occurring between the Veteran’s last service in Southwest Asia and the onset of the illness, or
(3) is the result of the Veteran’s own willful misconduct or the abuse of alcohol or drugs.

Qualifying Chronic Disabilities Associated with Service in Southwest Asia

Qualifying chronic disabilities include two distinct categories: (1) “undiagnosed illness” and (2) “medically unexplained chronic multisymptom illness.” The first category, by definition, cannot be associated with a diagnosis. However, the second category refers to diagnosed illnesses that are without conclusive pathophysiology or etiology and are characterized by a cluster of signs and symptoms featuring fatigue, pain, disability out of proportion to physical findings, and inconsistent laboratory findings. Examples of unexplained chronic multisymptom illnesses are provided in § 1117. They include, but are not limited to: (1) chronic fatigue syndrome; (2) fibromyalgia; and (3) irritable bowel syndrome. Service connection is appropriate for any of these when diagnosed.

Although medically unexplained chronic multisymptom illnesses may be diagnosed, and are therefore different from undiagnosed illnesses, if the diagnosis is partially understood in terms of etiology or pathophysiology, then it will not be considered medically unexplained. This caveat represents the intention of Congress to exclude from § 1117 certain readily diagnosable illnesses such as diabetes and multiple sclerosis, which are considered to be of partially understood etiology. The issue of whether a Veteran’s particular chronic multisymptom disability pattern is without a conclusive etiology, or represents a disability pattern with a partially understood etiology, must be determined on a case-by case basis and will require a medical opinion.

Signs and Symptoms of Qualifying Chronic Disabilities

Signs and symptoms that may be manifestations of both undiagnosed illnesses or medically unexplained chronic multi-symptom illnesses include, but are not limited to: (1) fatigue,
(2) signs or symptoms involving skin,
(3) headache,
(4) muscle pain,
(5) joint pain,
(6) neurological signs or symptoms,
(7) neuropsychological signs or symptoms,
( signs or symptoms involving the upper or lower respiratory system,
(9) sleep disturbances,
(10) gastrointestinal signs or symptoms,
(11) cardiovascular signs or symptoms,
(12) abnormal weight loss, and
(13) menstrual disorders.

Development in Claims based on Service in Southwest Asia

Development procedures are covered in M21-1MR at Part IV, Subpart ii, Chapter 1, Section E. The procedures are generally the same as those for any disability claimed by the Veteran or reasonably raised by the regional office. However, as stated previously, C&P Service is amending § 3.317 to clarify that chronic fatigue syndrome, irritable bowl syndrome, and fibromyalgia are not the only disability patterns that can be considered as medically unexplained chronic multisymptom illnesses. Therefore, until the amended regulation becomes final, regional office personnel will be required to hold any claim where the medical evidence shows a disability pattern that is not one of the three currently identified. These claims can be held under end product (EP) code 698 until the amended regulation is finalized. Initial development can proceed normally because the determination that a Southwest Asia Veteran’s particular disability pattern is a previously unidentified medically unexplained chronic multisymptom illness cannot be made until after a VA medical examination has been conducted and a medical opinion rendered.

This Training Letter highlights and clarifies the development procedures most closely associated with service in Southwest Asia. They include:
(1) procuring service treatment records, all relevant private medical records, and Gulf War Registry examination results, if applicable;
(2) acquiring relevant non-medical and lay evidence;
(3) verifying service in Southwest Asia;
(4) identifying the specific nature of the disability; and
(5) requesting a VA medical examination.

Special efforts and inquiries may be necessary when procuring medical evidence in these claims because of the difficulties involved with determining whether or not a diagnosis has been established. Also, non-medical and lay statements take on greater importance. Therefore, extended development may be necessary and consideration must be given to evidence such as any time lost from work and any attempts by the Veteran to seek medical treatment for the disability pattern. Consideration must also be given to lay statements describing the Veteran’s disability pattern from persons in a position to know the Veteran. Such statements may constitute probative evidence by describing changes in the Veteran’s appearance, physical abilities, and mental or emotional status.

Rating Procedures

Rating procedures are covered in M21-1MR at Part IV, Subpart ii, Chapter 2, Section D. When service connection is in order, consideration must be given to assigning a diagnostic code that represents the greatest degree of disability. There may be instances where a chronic undiagnosed illness or diagnosed multi-system illness affect distinct body systems. In such a case, a determination should be made that is most consistent with the evidence and most beneficial to the Veteran.

A special hyphenated analogous diagnostic code system has been developed by VA to track disability claims based on Gulf War and Southwest Asia service. The system involves use of two four-digit number sets separated by a hyphen to identify a qualifying chronic disability. The first four-digit number set starts with the numbers “88,” and is followed by the first two numbers of the body system diagnostic code most closely associated with the disability pattern. If, for example, a disability pattern involves the bronchial pulmonary system, which begins its diagnostic code numbers with 66, the first four-digit number set would be 8866. The second four-digit number set would be the actual diagnostic code that most closely describes the Veteran’s disability pattern. In this example, the Veteran may have signs and symptoms resembling bronchial asthma and so diagnostic code 6602 for bronchial asthma would be used.

When the two four-digit number sets are combined, the hyphenated analogous diagnostic code would be 8866-6602. A more detailed explanation of this system is provided in M21-1MR. Once the disability pattern has been associated with a diagnostic code, the criteria in that code should be used to assign a rating percentage based on the level of disability experienced by the Veteran.

This analogous diagnostic code number system has its historical roots in the disabilities that emerged following the 1990-1991 Gulf War. At the time, the associated disabilities were referred to as “undiagnosed illnesses.” The term has remained in common usage despite legislative changes that added diagnosed medically unexplained chronic multisymptom illnesses as a distinct category of qualifying disease. Therefore, regional office personnel must be aware that this number system applies to all qualifying chronic disability claims associated with service in Southwest Asia during the Gulf War, not just those where an undiagnosed illness is involved.

Any claim made directly by a Veteran, or developed by the regional office based on the Veteran’s records, which involves a diagnosed medically unexplained chronic multi-symptom illness must also be rated using this number coding system.

VA Medical Examination Requests

Because of the non-specific etiology of disability patterns, special considerations must be given to the initial evidence associated with these claims and the issue of when to request a VA medical examination. Regarding the issue of establishing a Veteran’s current disability, which generally serves as the basis for requesting the VA examination, one of two scenarios may occur. Either there is evidence that the Veteran has previously sought medical treatment for the disability pattern and has been “diagnosed” with a condition or there is no evidence that the Veteran has previously been medically treated for the disability pattern.

If a Veteran has previously sought treatment for a multi-symptom illness from a private physician, it is not likely that a resulting medical report will describe the Veteran’s disability pattern as an “undiagnosed illness.” Medical personnel in general and physicians in particular are trained to produce a diagnosis as the basis for treatment. Therefore, a “diagnosis” may appear in the Veteran’s private medical report. However, such a diagnosis is not grounds for denying the claim because medically unexplained chronic multi-symptom illnesses are diagnosable. Regional office personnel must consider the nature of the diagnosis and the disability description provided in the medical report. If the diagnosis involves one of the chronic multi-symptom illnesses described in § 3.317, service connection is appropriate and a VA examination may be necessary to determine severity in order to assign a disability rating. Even if the disability pattern differs from one of the identified chronic multi-symptom illnesses, as would be the case with signs and symptoms of certain respiratory conditions, consideration must still be given to requesting a VA examination. In such a case, it is appropriate to proceed with a VA examination to determine if the condition can be characterized as a disability pattern with an inconclusive etiology. It should also be kept in mind that when medical evidence shows a definite diagnosed condition for a Veteran with Southwest Asia service, that diagnosed condition could have been incurred or aggravated during service and would therefore be subject to service connection on a direct basis outside the provisions of § 3.317.

If there is no medical evidence that the Veteran has previously been treated for the disability pattern and the only significant evidence is the Veteran’s lay statement describing the disability pattern, a VA examination is still warranted. Case law from the Court of Appeals for Veterans Claims (CAVC), interpreting 38 CFR § 3.159(c)(4), establishes a relatively low threshold for requesting VA medical examinations. In McLendon v. Nicholson, 20 Vet.App. 79 (2006), the Court identified four criteria that, when met, require VA to provide a medical examination. In summary, they are: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence that a qualifying in-service event occurred, (3) an indication that the disability may be associated with the Veteran’s service, and (4) insufficient competent medical evidence on file for a decision on the claim.

Regarding Gulf War Illness claims and the first criterion, CAVC has repeatedly held that statements describing visible injuries and pain provided by the Veteran serve as competent evidence for the existence of such injuries and pain. In McLendon, the Court specifically stated that the Veteran “is fully competent to testify to any pain he may have suffered.” Therefore, in claims based on service in Southwest Asia, the Veteran’s lay description of the pain or other signs and symptoms of the disability pattern is competent evidence sufficient to establish a current disability or persistent or recurrent symptoms of a disability. Regarding the second criterion, once service in Southwest Asia is verified, occurrence of the qualifying in-service event is established. The third criterion is a low threshold that involves establishing an indication that the disability pattern may be associated with the Veteran’s period of service. This criterion is met by virtue of the Veteran’s service in Southwest Asia and a statement of a current disability pattern, particularly when such a pattern is consistent with those set forth in § 3.317. The final criterion is met when the regional office does not have sufficient evidence on file to generate a rating decision. This would almost always be the case in these claims because the VA medical examination report is the most likely means for determining whether service connection can be granted under § 3.317.

When requesting VA medical examinations, send the claims file to the examiner, specify that the examiner is to conduct a general medical examination and any required specialty examinations, and include the following italicized language with the request.

Upon exam completion, rating personnel should be aware that VA examiners have been provided with the following language along with the examination request. The language identifies four possible disability patterns that may appear in the examination reports. If the examiner has determined the Veteran’s disability pattern to be either (1) an undiagnosed illness or (2) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, including but not limited to, chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome, then service connection must be granted based on § 3.317. If the examiner has determined the Veteran’s disability pattern to be either (3) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis, then service connection cannot be granted under § 3.317 and may only be granted if the medical evidence is sufficient to establish service connection on a direct basis.

Notice to Examiners Regarding Gulf-War Related Disability Claims

Examiner,
VA statutes and regulations provide for service connecting certain chronic disability patterns based on exposure to environmental hazards experienced during military service in Southwest Asia. The environmental hazards may have included: exposure to smoke and particles from oil well fires; exposure to pesticides and insecticides; exposure to indigenous infectious diseases; exposure to solvent and fuel fumes; ingestion of pyridostigmine bromide tablets, as a nerve gas antidote; the combined effect of multiple vaccines administered upon deployment; and inhalation of ultra fine-grain sand particles. In addition, there may have been exposure to smoke and particles from military installation “burn pit” fires that incinerated a wide range of toxic waste materials.

The chronic disability patterns associated with these Southwest Asia environmental hazards have two distinct outcomes. One is referred to as “undiagnosed illnesses” and the other as “diagnosed medically unexplained chronic multisymptom illnesses” that are without conclusive pathophysiology or etiology. Examples of these medically unexplained chronic multi-symptom illnesses include, but are not limited to: (1) chronic fatigue syndrome, (2) fibromyalgia, and (3) irritable bowel syndrome. Diseases of “partially explained etiology”, such a diabetes or multiple sclerosis, are not considered by VA to be in the category of medically unexplained chronic multisymptom illnesses.

Additionally, signs and symptoms that may be manifestations of both undiagnosed illnesses or diagnosed medically unexplained chronic multi-symptom illnesses include, but are not limited to:
(1) fatigue;
(2) signs or symptoms involving the skin;
(3) headache;
(4) muscle pain;
(5) joint pain;
(6) neurological signs or symptoms;
(7) neuropsychological signs or symptoms;
( signs or symptoms involving the upper or lower respiratory system;
(9) sleep disturbances;
(10) gastrointestinal signs or symptoms;
(11) cardiovascular signs or symptoms;
(12) abnormal weight loss; and
(13) menstrual disorders.

Please examine and evaluate this Veteran with Southwest Asia service for any chronic disability pattern. Please review the claims file as part of your evaluation and state that it was reviewed. The Veteran has claimed a disability pattern related to (insert symptoms described by Veteran).

Please provide a medical statement explaining whether the Veteran’s disability pattern is: (1) an undiagnosed illness,
(2) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology,
(3) a diagnosable chronic multisymptom illness with a partially explained etiology, or
(4) a disease with a clear and specific etiology and diagnosis.

If, after examining the Veteran and reviewing the claims file, you determine that the Veteran’s disability pattern is either (3) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis, then please provide a medical opinion, with supporting rational, as to whether it is “at least as likely as not” that the disability pattern or diagnosed disease is related to a specific exposure event experienced by the Veteran during service in Southwest Asia

Please NOTE: I have left the Table of Contents page numbers as is, but the page numbers are not of use in this reply since it is all one document. I have also changed some of the paragraphing-type stuff, since it is a very long document and didn’t need to have a bunch of very shortened paragraphs.

Training Letter 10-04
Training Guide for the readjudication of Claims for Ischemic Heart Disease (IHD), Parkinson‟s Disease (PD), Hairy Cell Leukemia (HCL) and other Chronic B-cell Leukemias, and other Diseases Under Nehmer


DEPARTMENT OF VETERANS AFFAIRS
Veterans Benefits Administration
Washington, DC 20420
June 14, 2010


Director (00/21) In Reply Refer To: 211A
All VA Regional Offices Training Letter 10-04


SUBJ: Training Guide for the readjudication of Claims for Ischemic Heart Disease (IHD), Parkinson‟s Disease (PD), Hairy Cell Leukemia (HCL) and other Chronic B-cell Leukemias, and other Diseases Under Nehmer

BACKGROUND INFORMATION

On October 13th, 2009, Secretary Shinseki announced his intent to establish presumptive service connection for IHD, PD, and HCL for Veterans who served in the Republic of Vietnam. This decision was based on the Institute of Medicine‟s seventh biennial update, “Veterans and Agent Orange: Committee to Review the Health Effects in Vietnam Veterans and Exposure to Herbicides.” Under the court order of the U.S. District Court for the Northern District of California (the “Court”) in Nehmer v. U.S. Department of Veterans Affairs, 712 F. Supp. 1404, 1409 (N.D. Cal. 1989), VA must readjudicate previously denied claims for IHD, PD, or HCL filed by Nehmer class members (Vietnam Veterans and their survivors) and provide retroactive benefits pursuant to 38 C.F.R § 3.816. This requirement involves claims filed or denied from September 25, 1985, to the effective date of VA‟s final regulation establishing a presumption of service connection for the disease claimed. Such claims may not be finally adjudicated until VA‟s regulation change at 38 C.F.R. § 3.309(e) is final, which will add these three diseases to the list of diseases associated with herbicide exposure.

ACCOUNTABILITY

Resource Centers, who are responsible for the readjudication of Nehmer claims, must strictly comply with the instructions set forth in this letter and the attached Training Guide. It is critical that Nehmer claims be handled expeditiously and correctly. The processing of Nehmer claims requires VA to operate under court- imposed deadlines. Failure to comply with instructions could result in court- ordered sanctions against VA and/or VA officials.






Regulatory Guidance

A proposed regulation was recently published in the Federal Register Vol. 75,
14391 (March 25, 2010) that would amend 38 C.F.R. § 3.309(e) by adding IHD,
PD, and HCL to the list of diseases presumptively associated with exposure to
herbicides in Vietnam. Publication of the final rule is expected in the near future.

Whom to Contact for Help

If you have questions or need additional information, e-mail your inquiry to the
Q&A mailbox at VAVBAWAS/CO/NEHMER.



/S/
Bradley G. Mayes
Director
Compensation and Pension Service

Enclosures:
Nehmer Training Guide

************************

DEPARTMENT OF VETERANS AFFAIRS

Veterans Benefits Administration (VBA)

Nehmer Training Guide

June 14, 2010
Revised

Table of Contents

Background Information ............................................................................................... 1
Accountability ............................................................................................................... 1
Purpose and Objectives ............................................................................................... 7
Background ................................................................................................................... 7
References ..................................................................................................................... 8
Nehmer vs. Traditional Claims Processing ................................................................. 9
Comparison Chart ............................................................................................................. 9
Nehmer vs. 38 C.F.R. § 3.114(a) ......................................................................................12
New Presumptive Conditions ..................................................................................... 13
Definition of Ischemic Heart Disease ..............................................................................13
Definition of Chronic B-Cell Leukemia ...........................................................................13
Definition of Parkinson’s Disease ...................................................................................14
Readjudication Requirements under the Nehmer Court Order ............................... 15
Class Members under the Nehmer Court Order ....................................................... 15
Eligibility Requirements for Retroactive Payment Purposes .................................. 15
Effective Dates for Rating Purposes ......................................................................... 16
Service in the Republic of Vietnam ............................................................................ 16
Claims for Benefits ...................................................................................................... 17
Examples of Claims .........................................................................................................19
Diagnosis of Presumptive Disabilities ...................................................................... 21
Nehmer Database ........................................................................................................ 22
End Product Control ................................................................................................... 22
Claims Folder Review ................................................................................................. 23
Development ................................................................................................................ 23
Medical Evidence .............................................................................................................24
Example .............................................................................................................................24
Service ..............................................................................................................................24
Dependency ......................................................................................................................25
Continuous Cohabitation ................................................................................................26
Common Law Marriage ....................................................................................................26
Payee ................................................................................................................................26
Military Pay .......................................................................................................................26
Burial.................................................................................................................................27
Rating ........................................................................................................................... 27
Memorandum for the Record ..........................................................................................27
Examples of Memorandums for the Record: ......................................................................28

Confirmed and Continued Rating ...................................................................................29
Examples ...........................................................................................................................30
Coded Ratings ..................................................................................................................30
Total Disability Based on Individual Unemployability (TDIU) ..............................................30
Claims for Service Connection .......................................................................................30
Evidence and Evidentiary Basis .........................................................................................31
Coding and Assigning a Percentage ..................................................................................32
Special Monthly Compensation ..........................................................................................32
Effective Date .....................................................................................................................32
Claims for Service-Connected Death ..............................................................................32
Evidence ............................................................................................................................33
Issue(s), Decision(s), and Reasons for Decision ................................................................33
Effective Date .....................................................................................................................33
Dependents Educational Assistance (DEA) - Chapter 35 ...................................................34
Claims for Service Connection and Service-Connected Death ....................................34
Coding Considerations .......................................................................................................34
Issue(s), Decision(s), and Reasons for Decision ................................................................34
Authorization ............................................................................................................... 34
Live Veterans Claims .......................................................................................................35
Dependents........................................................................................................................35
Kicker / Public Law 101-508 ...............................................................................................35
Liesegang, et al v. Secretary of Veterans Affairs ................................................................35
Withholding for Military Pay ................................................................................................36
DIC Claims ........................................................................................................................36
Additional Allowances ........................................................................................................36
Death Prior to December 31, 1992 .....................................................................................37
Withholding for SBP Payments ..........................................................................................37
Remarriage of the Surviving Spouse ..................................................................................37
Month of Death Payment....................................................................................................37
Burial Claims ....................................................................................................................38
Burial Claims Prior to the Current December 1, 2001, Rate ...............................................38
Prior Payments of NSC Burial ............................................................................................38
Retroactive Benefits ........................................................................................................38
Award Annotation ............................................................................................................38
Notification Letter ............................................................................................................39
Sending Documents to OGC ...........................................................................................39
Appendices .................................................................................................................. 40
Appendix 1 – List of Presumptive Conditions in 38 C.F.R. § 3.816 ...............................41
Appendix 2 – Information on Vietnam Naval Operations ..............................................42
Appendix 3 – Naval and Coast Guard Development ......................................................45
Appendix 4 – List of APOs for Verification of RVN Service ..........................................47
Appendix 5 – Workflow for Processing Nehmer Claims ...............................................48
Appendix 6 – Contact Information for Processing Nehmer Claims ..............................49
Appendix 7 – Example Rating Decisions .......................................................................50

Appendix 8 – VA Examination Templates ......................................................................72
Appendix 9 – Rating Schedule ........................................................................................79
Appendix 10 – Example Notification Letters ..................................................................80
Appendix 11 – The Cardiovascular System in 38 C.F.R § 4.100 (Prior to January 12,
1998)..................................................................................................................................93
Appendix 12 – MAP-D Notification/Development Paragraphs for Nehmer ................ 101
Appendix 13 – Nehmer Reajudication Review Worksheet .......................................... 103
Appendix 14 – Nehmer Data Collection for New AO Presumptions Database........... 114
Appendix 15 – Footnote 1: Need for Amendment to 38 C.F.R. § 3.816 Regarding
Nehmer Claims ............................................................................................................... 116
Appendix 16 – VSR and SVSR Responsibilities........................................................... 121
Training Case Scenarios .......................................................................................... 122
VSR Scenario 1 .............................................................................................................. 123
VSR Scenario 2 .............................................................................................................. 124
VSR Scenario 3 .............................................................................................................. 125
VSR Scenario 4 .............................................................................................................. 126
VSR Scenario 5 .............................................................................................................. 127
RVSR Scenario 1 ............................................................................................................ 128
RVSR Scenario 2 ............................................................................................................ 129
RVSR Scenario 3 ............................................................................................................ 130
RVSR Scenario 4 ............................................................................................................ 131
RVSR Scenario 5 ............................................................................................................ 132



PURPOSE AND OBJECTIVES

The purpose of this training guide is to provide users with the information
necessary to review, develop, rate, and authorize Nehmer claims for the three
new presumptive conditions – hairy cell leukemia and other chronic B-cell
leukemias (HCL), Parkinson‟s disease (PD), ischemic heart disease (IHD), and
any other presumptive conditions involving in-country Vietnam service.

This guide will enable you to:

1. Review the claims folder and readjudicate all claims that previously denied a class member‟s claim for service connection for a new presumptive disease
2. Identify the eligibility requirements that qualify a Veteran or survivor for retroactive awards of benefits under Nehmer
3. Identify what constitutes a prior claim of benefits for conditions presumptively related to herbicide exposure under Nehmer
4. Identify the three new and current presumptive conditions associated with herbicide exposure
5. Identify and correctly apply effective date rules for a Nehmer claim
6. Determine what type of development, if any, is needed for rating or authorization
7. Determine requirements for authorization of awards pursuant to Nehmer
8. Identify the requirements of the decision notice letter.


BACKGROUND

The Nehmer court case originated in 1986 as a class-action lawsuit against the Department of Veterans Affairs (VA) by Vietnam Veterans and their survivors, who alleged that VA had improperly denied their claims for service-connected compensation for disabilities allegedly caused by exposure to the herbicide Agent Orange in service. In 1989, the United States District Court for the Northern District of California (Court) ruled that VA's regulation was invalid because the causation standard that it used was inconsistent with the intent of Congress. The Court invalidated VA's regulation and voided all benefit denials made under that regulation.

In May 1991, the Nehmer parties entered into a "Final Stipulation and Order" (Final Stipulation) outlining the actions to be taken in response to the Court's decision. Among other things, the Final Stipulation provided:
(1) that VA would issue new regulations in accordance with the Agent Orange Act of 1991;
(2) that, after issuing such regulations, VA would readjudicate the claims where a prior denial was voided by the Court's 1989 order and would initially adjudicate all similar claims filed subsequent to the Court's order; and
(3) that, if benefits were awarded upon such readjudication or adjudication, the effective date of the award would be the later of the date the claim was filed or the date the disability arose.
Ordinarily, if a claim is granted on the basis of a new regulation, the law states that the effective date of the award may not be any earlier than the date on which the regulation went into effect.

In a February 1999 decision, the Court clarified the scope of its 1989 decision. It voided all VA decisions that were issued while the invalid regulation was in effect and which denied service connection for a Vietnam Veteran's disease that was later found to be associated with herbicide exposure under new regulations. In December 2000, the Court provided further clarification when it concluded that VA must pay the full retroactive benefit to the estates of deceased class members.

On October 13, 2009, the VA announced Secretary Shinseki‟s decision to establish presumptive service connection for three additional illnesses associated with exposure to herbicides used in Vietnam based on an independent study conducted by the Institute of Medicine. The illnesses affected by the recent decision are B-cell leukemias (such as hairy cell leukemia), Parkinson‟s disease, and ischemic heart disease. A proposed rule adding these three conditions to VA‟s list of presumptive diseases was published in the Federal Register on March 25, 2010, 75 Fed. Reg. 14,391.

Approximately 94,000 Vietnam Veterans and survivors were previously denied service-connection (between September 1985 and end of month April 2010). An additional number of new claims have been received since the Secretary announced his intention to add three new conditions to the presumptive list. All of these claims must be adjudicated/readjudicated in order to comply with the Final Nehmer Stipulation.


REFERENCES

The following references are useful in the review and adjudication of Nehmer
claims:

 38 U.S.C. § 503 – Administrative Error; Equitable Relief
 38 U.S.C. § 5101 – Claims and Forms
 38 U.S.C. § 5103 – Notice to Claimants of Required Information and Evidence
 38 U.S.C. § 5110 – Effective Dates of Awards
 38 U.S.C. § 5125 – Acceptance of Reports of Private Physician Examinations
 38 C.F.R. § 3.114 – Change of Law or Department of Veterans Affairs Issue
 38 C.F.R. § 3.150 – Forms to be Furnished
 38 C.F.R. § 3.151 – Claims for Disability Benefits
 38 C.F.R. § 3.155 – Informal Claims
 38 C.F.R. § 3.303 – Principles Relating to Service Connection
 38 C.F.R. § 3.304 – Direct Service Connection; Wartime and Peacetime
 38 C.F.R. § 3.307 – Presumptive Service Connection for Chronic, Tropical or Prisoner-of-War Related Disease, or Disease Associated with Exposure to Certain Herbicide Agents; Wartime and Service on or after January 1, 1947
 38 C.F.R. § 3.309(e) – Diseases Subject to Presumptive Service Connection
 38 C.F.R. § 3.312 – Cause of Death
 38 C.F.R. § 3.350 Special Monthly Compensation Ratings
 38 C.F.R. § 3.400 – General Effective Dates
 38 C.F.R. § 3.816 – Awards under the Nehmer Court Orders for Disability or Death Caused by a Condition Presumptively Associated with Herbicide Exposure
 38 C.F.R. § 3.951 – Preservation of Disability Ratings
 38 C.F.R. § 4.100 – The Cardiovascular System Prior to January 12, 1998
 M21-1MR III.ii.2.C.14.b – Applications for Death Benefits
 M21-1MR III.iii.5 – Relationship and Dependency
 M21-1MR III.iii.5.C.14.a – Recognition of Common Law Marriages by State
 M21-1MR, IV.iii.3.F.23 – General Information on the Effect of a Surviving Spouse's Remarriage
 M21-1MR IV.ii.1.H.28 – Developing Claims Based on Herbicide Exposure in the Republic of Vietnam (RVN)
 M21-1MR IV.ii.2.C.10 – Service Connection for Disabilities Resulting From Exposure to Herbicides or Based on Service in the Republic of Vietnam (RVN)
 M21-1 Part I, Appendix C – BDN Tables and Codes
 Fast Letter 10-XXXX – XXXXXXXXXXX (to be released at a later date)


NEHMER VS. TRADITIONAL CLAIMS PROCESSING

Comparison Chart

The comparison chart notes differences between the Nehmer claims workflow process and traditional claims processing.


Nehmer vs. Traditional Claims Comparison
Traditional Claims vs. Nehmer

Definition

Traditional Claims: All other claimants and all periods of service for benefits.

Nehmer: Nehmer class members are Vietnam Veterans who served in-country and have a covered herbicide disease, or the surviving spouse, child, or parent of a Vietnam Veteran who died from a covered herbicide disease.

Effective Dates

Traditional Claims: The date the claim resulting in award was filed or date entitlement arose, whichever is later, but in no event prior to the effective date or the regulatory resumption of service connection.

Nehmer: The date the original claim was filed or arose, whichever is later, even if it was before the effective date of applicable regulatory presumption, and without regard to finality of prior denial(s)
(Contrary to 38 U.S.C. § 5110(g), 38
C.F.R. § 3.400).

Effective dates can go back as far as the date of claim that was pending on September 25, 1985 (The date the rules implementing “Veterans‟ Dioxin and Radiation Exposure Compensation Standards Act,” Pub. L. 98-542 (Oct. 24, 1984) were effective in the Code of Federal Regulations).

Need to File Claim

Traditional Claim: The claimant must file original claim. If claimant alleges earlier effective date, claimant must demonstrate that he or she made an earlier claim that did not become final.

Nehmer: The claimant need not file a new claim or a claim for earlier effective date when new presumptive condition is added. VA must search its records to find eligible claimants and award benefits, without action on the claimant‟s part.

Medical records noting the existence of a condition later made presumptively service-connected can in some instances, result in an award without a formal claim ever being filed

Eligible Payees

Traditional Claim: Veteran or surviving spouse, children or dependent parents of the Veteran can get accrued or owed benefits.

Benefits never go to the estate because the right to benefits ends with death of the entitled individual.

The one who bore the last expenses can claim reimbursement from benefits owed.

Nehmer: Veterans, surviving spouse, children, parents; or to the surviving spouse, children, parents, or estate of class members.

The right to benefits survives entitled member. (Contrary to 38 U.S.C. § 5121). Concepts relating to accrued benefits are not applicable in Nehmer cases

No right to reimbursement for the one who bore the last expenses.

Payee Identification

Traditional Claim: Payee information is generally in the Veteran‟s claims folder.

Nehmer: Payee may not be identified in Veteran‟s claims folder because the claim survives the Veteran and his spouse; requires further documentation for proof of entitlement (e.g., marriage certificate, birth certificate). VA must request those documents needed to establish eligibility.

Unable to Identify Payee

Traditional Claim: N/A

Nehmer: VA must notify class counsel if unable to identify payee. Class counsel utilizes a search firm that locates potential payees and class counsel provides the VA with information to contact those persons and establish eligibility. (See Payee Identification).

Payment of Compensation/Priority of Adjudication

Traditional Claim: Payment is made when the benefit is granted in agency‟s course of business.

Priorities are decided nationally and locally based on Department‟s policies.

Nehmer: The timing of payments is governed by court order. Payment is required to be received within twenty-one days of receipt of information confirming entitlement (the twenty-one day period begins once the whereabouts of a class member is known).

Nehmer claims must be handled as a first priority, under court-ordered deadlines.

Notice of Calculation of Compensation

Traditional Claim: The VA provides notice of amounts payable under 38 U.S.C. § 1114.

Nehmer: The VA notice letter must include an explanation of how the amount was calculated.

Proof of Payment

Traditional Claim: N/A

Nehmer: A copy of Treasury Inquiry screens indicating proof of payment may be provided to class counsel upon request.

Time Limit

Tradtional Claim: If the applicant fails to provide requested information within one year, a decision is made on the available evidence. This decision is considered final.

Nehmer: There is no time limit imposed for submission of evidence by a claimant.

Retired Pay / SBP Offset Issues

Traditional Claim: Retired pay/SBP offset is determined by computer at DFAS in the normal course of business.

Nehmer: Because benefits may be owed from over 20 years ago, offset amount must be retrieved from DFAS database.

Court Supervision

Traditional Claim: The VA is subject to normal oversight by OIG and Congress.

Nehmer: Deadlines are court imposed, and class counsel oversees VA compliance. When the timeline is not met, VA must provide a declaration signed under oath by the persons with knowledge setting forth the steps taken to meet the deadline, an explanation of the delay, and the date by which VA will provide payment/notice.

EAJA Fees

Traditional Claim: EAJA fees may be awarded in certain appeals of denied claims.

Nehmer: VA compensates class counsel for all its work on Nehmer claims.

Processing

Traditional Claim: Processing occurs within normal VA channels.

Nehmer: Virtually all Nehmer claims require special handling.


Nehmer vs. 38 C.F.R. § 3.114(a)

By definition, if a case falls under Nehmer, it means that the first claim of service connection for the condition at issue was received BEFORE the condition was added to the list of Agent Orange-related disabilities and the effective date for the grant of service connection will also be BEFORE the condition was added to the list of Agent Orange-related disabilities. As a result, if a claim was received before the condition was added to 38 C.F.R. § 3.309(e), the case is a potential Nehmer case. On the other hand if the claim was received after the disease was added to the presumptive list, it is not a Nehmer case. In those cases 38 C.F.R. § 3.114(a) applies and the earliest effective date that can be granted under 38 C.F.R. § 3.114(a) is the date on which the liberalizing legislation was effective (i.e. the date on which the condition was added to 38 C.F.R. § 3.309(e) or one- year prior to date of claim, whichever is later).

Remember that in all cases, the condition must have been present on the date we grant service connection. Occasionally, we receive a claim BEFORE the condition is actually present, and neither Nehmer nor 38 C.F.R. § 3.114(a) allows for a grant of service connection prior to a confirmed diagnosis.

The Nehmer claims workflow process differs from the traditional claims processing that the reviewer normally sees. Appendix 5 shows an overview of the “Workflow for Processing Nehmer Claims.”


NEW PRESUMPTIVE CONDITIONS

The three new presumptive conditions are:

1. Ischemic heart disease
2. Chronic B-cell leukemias, such as hairy cell leukemia
3. Parkinson‟s disease

Definition of Ischemic Heart Disease

According to Harrison‟s Principles of Internal Medicine (Harrison‟s Online, Chapter 237, Ischemic Heart Disease, 2008), ischemic heart disease is a condition in which there is an inadequate supply of blood and oxygen to a portion of the myocardium; it typically occurs when there is an imbalance between myocardial oxygen supply and demand. Therefore, for purposes of this regulation, the term “ischemic heart disease” includes, but is not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable, and Prinzmetal‟s angina. Since the term refers only to heart disease, it does not include hypertension or peripheral anifestations of arteriosclerosis such as peripheral vascular disease or stroke.

The cardiovascular section of the rating schedule was revised effective January 12, 1998 (See the Rating section for further information).

Definition of Chronic B-Cell Leukemia

B-cell leukemia describes several different types of lymphoid leukemias and includes the following types:

 B-cell chronic lymphocytic leukemia/small lymphocytic lymphoma
 Acute lymphoblastic leukemia, mature B-cell type
 B-cell prolymphocytic leukemia
 Precursor B lymphoblastic leukemia
 Hairy cell leukemia

There are fourteen kinds of lymphomas involving B-cells.

 Diffuse large B-cell lymphoma
 Follicular lymphoma
 Mucosa-associated lymphatic tissue lymphoma (MALT)
 Small cell lymphocytic lymphoma (overlaps with the chronic lymphocytic leukemia)
 Mantle cell lymphoma (MCL)
 Burkitt lymphoma
 Mediastinal large B-cell lymphoma
 WaldenstrÖm macroglobulinemia
 Nodal marginal zone B-cell lymphoma (NMZL)
 Splenic marginal zone lymphoma (SMZL)
 Extranodal marginal zone B-cell lymphoma
 Intravascular large B-cell lymphoma
 Primary effusion lymphoma
 Lymphomatoid granulomatosis

Definition of Parkinson’s Disease

Parkinson's disease (PD) belongs to a group of conditions called motor system disorders, which are the result of the loss of dopamine-producing brain cells. The four primary symptoms of PD are tremor, or trembling in hands, arms, legs, jaw, and face; rigidity, or stiffness of the limbs and trunk; bradykinesia, or slowness of movement; and postural instability, or impaired balance and coordination. As these symptoms become more pronounced, patients may have difficulty walking, talking, or completing other simple tasks. PD usually affects people over the age of 50. Early symptoms of PD are subtle and occur gradually. In some people the disease progresses more quickly than in others. As the disease progresses, the shaking, or tremor, which affects the majority of PD patients may begin to interfere with daily activities. Other symptoms may include depression and other emotional changes; difficulty in swallowing, chewing, and speaking; urinary problems or constipation; skin problems; and sleep disruptions. There are currently no blood or laboratory tests that have been proven to help in diagnosing sporadic PD. Therefore the diagnosis is based on medical history and a neurological examination. The disease can be difficult to diagnose accurately. Doctors may sometimes request brain scans or laboratory tests in order to rule out other diseases.

NOTE: See Appendix 1 for the complete list of presumptive conditions associated with herbicide exposure.

READJUDICATION REQUIREMENTS UNDER THE NEHMER COURT ORDER

The Nehmer Court has held that the stipulation requires VA to readjudicate all cases in which VA previously denied a class member‟s claim of service connection for a new presumptive disease. A prior denial based on lack of diagnosis rather than lack of nexus falls within the scope of the stipulation‟s requirement for readjudication. This differs from claims in which there was no prior claim or class member status (i.e., no in-country Vietnam service, no “Veteran” status, etc).


CLASS MEMBERS UNDER THE NEHMER COURT ORDER

38 C.F.R. § 3.816 (b)(1) defines the class members as: (i) a Vietnam Veteran who has a covered herbicide disease; or (ii) a surviving spouse, child, or parent of a deceased Vietnam Veteran who died from a covered herbicide disease.

38 C.F.R. § 3.816 (f)(1) states that if a Nehmer class member entitled to retroactive benefits . . . dies prior to receiving payment of any such benefits, VA shall pay such unpaid retroactive benefits to the first individual or entity listed below that is in existence at the time of payment:

(i) The class member's spouse, regardless of current marital status
 A spouse is the person who was legally married to the class member at the time of the class member‟s death
(ii) The class member's child(ren), regardless of age or marital status
 If more than one child exists, payment of the retroactive benefits owed shall be divided into equal shares, and accompanied by an explanation of the division; this includes all children, regardless of age or marital status
(iii) The class member's parent(s), regardless of dependency
 If both parents are alive, half the retroactive benefits owed shall be paid to each parent, and accompanied by an explanation of the division
(iii) The class member's estate


ELIGIBILITY REQUIREMENTS FOR RETROACTIVE PAYMENT PURPOSES

If a Nehmer class member is entitled to disability compensation for a covered herbicide disease, eligibility requirements must be met. The eligibility requirements are:

 The Veteran served in the Republic of Vietnam; and
 They have applied, were denied, or a claim was inferred (by class member or VA) for benefits for one of the three new presumptive conditions between September 25, 1985, or a date prior to September 25, 1985, if the claim was pending or on appeal on September 25, 1985, and the date the regulations for these conditions become effective; and
 They are diagnosed with one of the presumptive diseases, or a disease that reasonably may be construed as a covered herbicide disease.


EFFECTIVE DATES FOR RATING PURPOSES

The effective date for retroactive claims must be one of the following dates:

 The later of the following:
- The date VA received the claim, or a date prior to September 25, 1985, if the claim was pending or on appeal on September 25, 1985,
or
- The date the disability arose
 The day following the date of the class member's separation from active service, if filed within one year from the date of separation

The effective date for Dependency and Indemnity Compensation (DIC) claims must be one of the following dates:

 The date VA received the claim, or
 The first day of the month of the Veteran‟s death, if filed within one year from the date of the Veteran‟s death

NOTE: If the class member‟s claim for DIC for the death was either pending before VA 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 covered herbicide disease that caused death, the effective date of the award will be the later of the date such claim was received by VA or the death occurred (38 C.F.R. § 3.816(d)(2)).

NOTE: 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114(a) do not apply to Nehmer claims.


SERVICE IN THE REPUBLIC OF VIETNAM

Veterans can establish proof of service in the Republic of Vietnam (RVN) if they were:

 On land in the RVN, or
 In the inland waterways of RVN, or
 In vessels docked at the ports of RVN, or*
 In waters offshore of RVN, if the conditions of service involved duty, or visitation on the ground in RVN, or
 Other locations, if the conditions of service involved duty or visitation on the ground in RVN

* For a list of vessels confirmed to have docked on the RVN shore or traveled on inland waterways, see Appendix 2.

There is no requirement for a specified length of service, duty, or visitation in RVN. See 38 C.F.R. § 3.307(a)(6)(iii) for more information.

The following sources may be used to verify service in RVN If they served in RVN during the period beginning January 9, 1962, and ending on May 7, 1975:

 DD Form 214, Certificate of Release or Discharge From Active Duty
 DA Form 20, Enlisted Qualification Record
 VA Form 21-3101, Request for Information
 Service Treatment Records (STR)
- Dental records found in STRs
 Military Personnel Records
 Army Post Office (APO) Numbers (See Appendix 4)
 Temporary Duty (TDY) Orders
 Shore leave granted in writing
 Other documented evidence that shows the Veteran physically set foot in RVN
 Personnel Information Exchange System (PIES) verifying in-country service
 Development to the Veteran (See Development section for details)

For a list of APOs that are verified by the Military Postal Service Agency as used for delivery to RVN, see Appendix 4.


CLAIMS FOR BENEFITS

Veterans must have applied for or have been denied benefits for one of the three new presumptive conditions between September 25, 1985, (or a date prior to September 25, 1985, if the claim was pending or on appeal on September 25, 1985) and the date the regulation for these conditions becomes effective.

A claim meeting the eligibility requirements of Nehmer can be any of the following:

 A claim for Service Connection (SC)
 An informal claim
 A pension claim
 An inferred claim for SC
 A claim inferred by Veteran or VA during review
 Notice of Death
 A claim for burial benefits
 A claim for DIC, death pension or accrued benefits
 Social Security Administration - VA Form 21-4182, Application for Dependency and Indemnity Compensation or Death Pension
 VA Form 21-601, Application for Accrued Amounts Due A Deceased Beneficiary

Additional factors:

 A claim need not reference herbicide exposure (See Example 1)
- In its February 11, 1999, Nehmer order, the Court held that a Nehmer class member‟s compensation claim need only have requested service connection for the presumptive condition in order to qualify as a Nehmer claim. It is not necessary that the class member assert the condition was caused by herbicide exposure
 An initial claim may lack specific details, which were clarified by later submissions (See Example 2)
 A prior claim must have involved one or more of the three new presumptive conditions, or one that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded (See Examples 3 and 4)
 Live pension claims must be treated as SC claims (See Example 5)
- Under 38 C.F.R. § 3.15 (a), “a claim by a Veteran for pension may be considered to be a claim for compensation.” VA is not required by law to treat a Veteran‟s claim for pension as a claim for compensation, see Stewart v. Brown, 10 Vet. App. 15, 18 (1997), but may do so in appropriate circumstances. Nehmer is an appropriate circumstance
 Death pension claims must be treated as DIC claims (See Example 6)
 A claim of SC burial benefits must be treated as an informal DIC claim in certain circumstances. For more information, see the Rating section, subsection Claims for Service-Connected Death and for scenarios see Examples 7, 8 and 9 below.
- An open claim:

-- An instance where VA failed to provide a decision notice letter to the claimant

-- An instance where VA failed to address a claim, such as an inferred or an informal claim (or failed to address an appeal)

-- An instance where VA failed to provide an application for benefits to a claimant

Examples of Claims

Example 1: A Veteran who served in the Republic of Vietnam filed a claim in 1994, alleging that his IHD, PD, or HCL began while on active duty following his service in Vietnam. VA denied the claim in 1995. The Veteran reopens the claim in 2010, and service connection is granted based on VA‟s amended herbicide regulations. On these facts, the effective date must relate back to the 1994 claim, even though the Veteran alleged a different basis for service connection.

Example 2: In January 1987, a Veteran claimed compensation for lymphoma. In developing that claim, VA obtained medical records indicating that the Veteran was diagnosed with HCL in February 1987. Based on these facts, it would be reasonable to treat the January 1987 claim as a claim for service connection for HCL. Under Nehmer, benefits may be paid retroactive to the date of that claim or the date the disability arose, whichever is later, as determined by the facts of the case.

Example 3: In April 1995, a Veteran claimed compensation for anemia/leukemia. Medical records obtained by VA indicate the Veteran did not have leukemia. The claim was denied in 1995. In 2001, the Veteran claimed compensation for HCL, submitting evidence that HCL was diagnosed in January 1996. The Veteran did not file an appeal based on the 1995 decision and there was no activity from the Veteran until 2001. Based on these facts, the 1995 claim and evidence submitted did not show a diagnosis of HCL or the presence of any type leukemia. The 2001 submission of evidence was accepted as a reopened claim with a confirmed diagnosis. Under these facts, the effective date would be 2001, as that is when VA received evidence documenting the diagnosed disability.

Below are slightly different modifications of the above scenario that would change the outcome.

For example, if the records diagnosing HCL existed during the pending 1995 claim, and the Veteran, in any manner, communicated to VA the existence of those records and VA failed to obtain them (possibly because VA assumed they would be of no help to the claim since there was no presumption at the time), then the effective date would be April 1995 because VA failed in their duty to obtain records identified by the claimant.

Another slight variation would exist if the Veteran actually submitted the records diagnosing HCL in 1996 to VA following such diagnosis. The 1995 claim was properly disposed of in 1995, and VA received the 1996 records in 1997, but received no accompanying information from the Veteran regarding any intent to file a claim, then the proper effective date under the Nehmer review would be when VA received the records in 1997 rather than 2001. Because the Nehmer review requires VA to readjudicate these claims “as if” the presumption existed in 1985, then submission of records confirming a diagnosis of the presumptive condition must serve as a valid claim, despite VA‟s failure to act on such records and notwithstanding that no presumption existed when VA actually received the records.

Example 4: A Veteran filed a formal claim for service connection for IHD, PD, or HCL in November 1979 and VA denied the claim in January 1980. In May 1986, the Veteran submitted a letter stating, “please consider service connection for IHD, PD, or HCL,” along with documentation showing a diagnosis for one of these conditions. On these facts, the May 1986 letter is an acceptable formal claim to reopen, and benefits must be paid retroactive to May 1986 under Nehmer.

Example 5: In 1994, a Veteran filed a claim for nonservice-connected (NSC) pension. After VA denied the claim, the Veteran filed a statement in 1995 stating, “I disagree with your decision denying pension.” I also should be paid compensation for IHD, PD, or HCL.” VA did not forward the claimant an application form and did not adjudicate any claim for service connection for IHD, PD, or HCL. On these facts, both the 1994 pension claim and the 1995 statement must be accepted as a claim for IHD, PD, or HCL.

Example 6: A Veteran died of IHD, PD, or HCL. In 1988, the surviving spouse filed a VA Form 21-534, Application for DIC or Death Pension or Accrued Benefits by a Surviving Spouse or Child, and marked “no” in response to the question “are you claiming that the cause of death was due to service?” Accordingly, VA adjudicated a claim for pension only. In 2009, the surviving spouse applies for DIC, which is granted. Under these circumstances, the award must be made retroactive to the 1988 application, because it must be treated as a DIC claim.

DIC claimants generally are not required to identify specific diseases in their applications. The absence of specific reference to IHD, PD, or HCL in a prior DIC application will not preclude assignment of a retroactive effective date under Nehmer, provided the evidence establishes that IHD, PD, or HCL caused or contributed to the Veteran‟s death.

Example 7: In 1995, a surviving spouse filed an application for burial benefits (VA Form 21-530, Application for Burial Benefits) and marked “yes” in response to the question “are you claiming that the cause of death was due to service?” VA forwarded the claimant an application for DIC (VA Form 21-534). The claimant returned the completed DIC application within one year. Based on these facts, the date of the 1995 application for burial benefits may be accepted as the date of the DIC claim for purposes of Nehmer.

Example 8: In 1995, a surviving spouse filed an application for burial benefits (VA Form 21-530) and marked “yes” in response to the question “are you claiming that the cause of death was due to service?” VA forwarded the claimant an application for DIC (VA Form 21-534), but the claimant failed to return the completed DIC application. Based on these facts, the 1995 application for burial benefits should not be considered a claim for DIC.

Example 9: In 1995, a surviving spouse filed an application for burial benefits (VA Form 21-530) and marked “yes” in response to the question “are you claiming that the cause of death was due to service?” VA did not forward an application for DIC. Based on these facts, DIC must be paid retroactive to the 1995 application for burial benefits, if otherwise in order. The one-year period for filing a completed DIC application did not begin due to VA‟s failure to provide the application form.


DIAGNOSIS OF PRESUMPTIVE DISABILITIES

The evidence must show a diagnosis of one of the presumptive conditions and the date of the diagnosis. A prior denial of a claim for a presumptive disability based on lack of a diagnosis falls within the scope for readjudication, however the effective date for any disability cannot precede the diagnosis.

Example 1:
The Veteran submitted a claim for service connection for ischemic heart disease due to herbicide exposure on May 2, 1995. He served in Vietnam; therefore, herbicide exposure is conceded. Testing confirmed hypertensive vascular disease on April 5, 1995, but not ischemic heart disease, so a decision letter was sent to the Veteran denying service connection for ischemic heart disease. On March 3, 2010, VA administratively reviewed the claims file due to ongoing Nehmer litigation. The evidence on file showed VAMC treatment records with a diagnosis of ischemic heart disease on April 19, 1997. The medical records did not have a date stamp or any other annotation showing when VA received them. The medical records were accepted as a reopened claim and resulted in a denial of service connection by rating dated May 15, 1998. Based on these facts, the Veteran was granted service connection from April 19, 1997. Although, the Veteran filed a claim on May 2, 1995, a diagnosis was not shown until April 19, 1997. In addition, 38 C.F.R. § 3.816(c)(1) states that the effective date of the award will be the later of the date VA received the claim on which the prior denial was based or the date the disability arose.

Example 2:
A review of the claims folder shows that an original claim was filed on April 5, 1995, for service connection for heart disease (not IHD) and high cholesterol. The medical evidence for the period March 1993 and April 1995 showed a diagnosis of high cholesterol and a history of heart disease. Development action(s) was not undertaken and the SC claim was denied in June 1996. Based on these facts, VA failed to confirm a diagnosis and the Nehmer stipulation requires that we readjudicate claims for new presumptive conditions that were previously denied.

Example 3:
A review of the claims folder shows that an original claim was filed on June 5, 1996, for service connection for IHD and high cholesterol. The veteran served in-country Vietnam from 1969 to 1971. The medical evidence of record for the period March 1993 and April 1996 showed a diagnosis of high cholesterol and a history of heart disease. A VA examination dated September 7, 1996, showed a diagnosis of high cholesterol and IHD. Based on these facts, the claim was denied SC June 1997. The Nehmer stipulation requires that we readjudicate claims for new presumptive conditions that were previously denied.


NEHMER DATABASE

The Nehmer Reajudication Database (also known as the Nehmer database) facilitates the claims folder review by providing the user with questions that are necessary to process a Nehmer claim. The information gathered not only enables the claims folder review process, but also provides a data collection mechanism that is used for reporting data to VBA, the Secretary of Veterans Affairs, the Office of General Counsel (OGC), the Department of Justice, and, if necessary, the Court.

It is imperative that the database is utilized and all information is saved in the database during the claims folder review. In previous Nehmer readjudications, inaccurate reporting and failure to adequately track and document work resulted in the Court issuing “Show Cause” orders regarding why VA and VBA supervisors should not be held in contempt.

Upon completion of the readjudication of the file in the database, the reviewer will be responsible for incorporating a printout of the completed worksheet into the claims folder.


END PRODUCT CONTROL

The date of claim and end product (EP) 687 will be established in the Nehmer database. If a Nehmer claim is NOT in the database, notify Southern Area Office immediately. Do NOT attempt to establish an EP until notified of the database modification and the correct date of claim. ONLY then proceed to establish the EP and the correct date for date of claim.

The e-mail address for Southern Area Office can be found in Appendix 6.

CLAIMS FOLDER REVIEW

A systematic review of the entire claims folder is required to determine if the individual is a Nehmer class member and if the eligibility requirements for retroactive payments under Nehmer are met.

If the individual is a Nehmer class member, the reviewer must ensure the following actions are taken:

 Prepare rating if SC is granted and assign an effective date
 Prepare award action(s)
 Prepare notification letter with appellate rights, and
 Update the database

If the individual is not a Nehmer class member, forward to the RVSR for a Memorandum for the Record. For more information regarding Memorandums for the Record, see the Rating section.

Check the claims folder for medical evidence required for a rating decision. If a VA Examination (VAE) is necessary, proceed with scheduling the examination immediately.

For cases involving death, be sure to check for proof of death and proof of dependency. If burial was also involved, check to see if an itemized funeral bill and a paid-in-full receipt showing who paid the funeral bill are of record.

During the screening process, if medical evidence is sufficient to grant partial benefits, send to the RVSR. Proceed with development if necessary information is not of record.

NOTE: If no additional development is required, send the MAP-D Notification/Development Paragraphs for Nehmer to the class member (See Appendix 12).

IMPORTANT: Detailed, but concise notes should be added in Modern Awards Processing – Development (MAP-D) throughout the claims review. After completion of review, the data must be entered into the Nehmer database to track all actions associated with the claim.


DEVELOPMENT

Development may be required following the claims folder review. This may include development for medical evidence, service, dependency, payee, military pay, and/or burial information. Use MAP-D to generate the development letters. See Appendix 12 for the appropriate paragraphs to use in development letters. Be sure to use considerate language when developing these claims, especially in death cases. Most cases identified as Nehmer claims have been denied many years ago.

Medical Evidence

Due to the inherent nature of Nehmer cases, it may be difficult to obtain a complete medical history of the Veteran. The development of evidence in connection with claims for service connection will be accomplished when deemed necessary, but it should not be undertaken when evidence present is sufficient for this determination (38 C.F.R. § 3.304(c)). When the evidence of record is sufficient to grant benefits, but a current assessment of the medical condition(s) is necessary, VAE may be appropriate. Consult with the RVSR to determine if medical records are sufficient for rating.

Example

IHD with multiple heart attacks since denial ten years ago, and evidence in file would have warranted a 60 percent evaluation.

Medical evidence, lay evidence, or both may establish the factual basis for a decision. Medical evidence should set forth the physical findings and symptomatology elicited by examination within the applicable period. Lay evidence should describe the material and relevant facts as to the Veteran‟s disability observed within such period, not merely conclusions based upon opinion. See 38 C.F.R. § 3.307(b).

In order to pay DIC and burial benefits, a death certificate or other proof of death is required showing the date of death and the cause(s) of death. See 38 C.F.R. § 3.211 for additional sources of proof of death.

Service

If unavailable in the Veteran‟s records, verification of service may be obtained by performing a Defense Personnel Records Information Retrieval System (DPRIS) request.

Verification of the Veteran‟s pay grade is required if the Veteran died prior to December 31, 1992. Check the Veteran‟s DD Form 214 for pay grade. If the evidence of record cannot determine the pay grade, request service records from the service department through DPRIS.

For more information on using DPRIS for service verification, please see the respective User Guides.

Dependency

Use the following table to determine what information is required to establish dependency. Please note that this is not an all-inclusive list.

Evidence Requirements for Dependency Dependent Evidence Required

Spouse
- Date of marriage to Veteran
- Number of prior marriage(s)
- Name(s) of prior spouse(s)
- Date(s) and place(s) of termination of prior marriage(s) for both the Veteran and spouse
- Social Security Number (SSN)
- Continuous cohabitation
- Remarriage after death of the Veteran

Biological Child
- Date of birth
- SSN

Stepchild
- Date of birth
- Birth Certificate
- SSN
- Date child was in the household of the Veteran

Adopted Child
- Date of birth
- SSN
- Adoption paperwork or revised birth certificate

Parent
- Birth certificate of the Veteran
- SSN
- Parent’s financial information


Children between ages 18 and 23 who are attending school at an approved institution may receive DIC benefits. Before the claim can be processed, it may be necessary to gather information regarding school attendance dates and other information. Additionally, information on Dependents‟ Educational Assistance (DEA) should be checked to prevent concurrent receipt of benefits.

Development of dependency information may be made over the telephone, through facsimile, or by letter.

For more information on developing for dependency see M21-1MR, Part III, Subpart iii, Chapter 5 (M21-1MR III.iii.5).

The right to benefits survives entitled member (contrary to 38 U.S.C. § 5121).

Continuous Cohabitation

The requirement that there must be continuous cohabitation from the date of marriage to the date of death of the Veteran will be considered as having been met when the evidence shows that any separation was due to the misconduct of, or procured by, the Veteran without the fault of the surviving spouse. Temporary separations, including those caused for the time being through fault of either party, will not break the continuity of the cohabitation.

Common Law Marriage

To view a list of states that recognize common law marriage, please refer to “Recognition of Common Law Marriages by State” in M21-1MR III.iii.5.C.14.a.

Payee

As these are potentially old cases, it may be necessary to develop for payees for the retroactive benefits. Send letters to all dependents of record requesting the names, addresses, and telephone numbers of all known survivors.

Additionally, proof of dependency is required before retroactive benefits may be paid. Develop for birth certificates, marriage certificates, and other proof of dependency if necessary.

If payees cannot be identified, VA must make such reasonable inquiry as the information on file permits. For example, if the claims folder identifies an authorized representative or a relative, it would be reasonable to contact such person to request information concerning the existence of a surviving spouse, child(ren), parent(s), or the executor/administrator of the class member’s estate.

If any such payee cannot be identified or located:

- Complete VA Form 21-0820, Report of General Information, for the folder stating the reasons why the payment of retroactive Nehmer benefits was not payable to a beneficiary
- Notify Nehmer Project Manager by e-mail that no payee could be identified, including the claimant‟s name and file number in the message

NOTE: Refer to the Eligibility Requirements section for a list of eligible payees and order of entitlement.

Military Pay

38 U.S.C. § 5305 prohibits, in some cases, Veterans from receiving full military retirement pay and VA compensation benefits at the same time. In order to properly withhold benefits and prevent overpayments, DFAS has provided a database listing retired pay, severance and separation pay, and Survivor Benefit Plan (SBP) amounts and effective dates.

NOTE: Before developing, verify the Veteran waived his or her military pay in lieu of compensation. This can be found on VA Form 21-526, Veteran's Application for Compensation and/or Pension, or VA Form 21-651, Election of Comp in Lieu of Retired Pay or Waiver of Retired Pay to Secure Comp from VA.

NOTE: A waiver may not be included on some versions of VA Form 21-526. A copy of Form 21-651 must be of record or obtained from the class member.

Burial

The following information may need to be requested from the survivor, funeral home or cemetery:

- Proof of death
- Receipt showing the total cost of the funeral and who made payment
- Itemized list of funeral expenses
- Place of burial

NOTE: Contacting the funeral home or cemetery for this information over the telephone may expedite the process.

IMPORTANT REMINDER: Detailed notes should be entered into MAP-D.

After completion of Development, the Nehmer Database should be updated to track all actions associated with the individual‟s claim.


RATING

Memorandum for the Record

A memorandum for the record is used only when the individual is not a Nehmer class member (i.e., no prior claim, no “Veteran” status, etc). If it is determined the individual is not a Nehmer class member, then a Memorandum for the Record is required. A notice letter is not sent to the individual.

A detailed explanation regarding why the individual is not a class member is required. The explanation must be sufficient in detail for the reviewer to undertake a clear analysis as to why the case does not qualify for Nehmer readjudication. See Appendix 7 for sample Memorandums for the Record.

NOTE: The example Memorandums for the Record that appear in Appendix 7 are modifications of an actual form used in previous Nehmer readjudications. For the purposes of this Nehmer review, use the memorandums as shown with no form number. In no instance, when using these forms, should there be any reference made to rating. Some examples where VA may not, under any circumstance, dispose of a case using a memorandum for the record include:

1. A Veteran filed a claim expressly for one of the new presumptive diseases

2. A Veteran filed a claim for a disease that may be reasonably construed as a covered herbicide disease

3. A Veteran filed a claim that did not directly address a covered herbicide disease but that did raise an issue potentially intertwined with a covered disease, such as hypertensive heart disease, but VA failed to fully develop that claim in order to rule out or confirm the diagnosis of hypertensive heart disease, or any other potential covered disease

4. Any case where VA reviews a claims folder and discovers evidence in the file of a covered herbicide-related disease

Examples of Memorandums for the Record:

Example 1:

In 1993, the individual filed a claim for service connection for HCL. The medical evidence did not show a diagnosis of HCL. The individual served from 1969 to 1974 (one consecutive period of service) and received a bad conduct discharge. The claim was denied in 1994 based on no diagnosis. Based on these facts, the individual is not a Nehmer class member, as he did not have “Veteran” status. A memorandum for the record is in order.

Example 2:

In 1987, the Veteran filed a claim for service connection for lupus. The medical evidence of record shows a diagnosis of lupus. The individual served from 1969 to 1978. The claim was denied in 1989. The rating disposed of the SC claim for lupus, and the incorrect rating disability code (8004-currently used for PD) was used. The notification letter and rating decision only addressed lupus and did not reference PD. Based on these facts, the individual is not a Nehmer class member, as he did not have a prior claim for service connection for a new presumptive disease, or a diagnosis. A memorandum for the record is in order.

Example 3:

In 1995, the Veteran filed a claim for heart disease. The medical evidence submitted with the claim confirmed the diagnosis. The evidence shows the Veteran served in the Air Force from 1965 to 1975 and has verified in-country Vietnam service from 1970-1972. A VA examination was not ordered and no additional development for any medical records was undertaken. The claim for service connection was denied in 1997. The review raised doubt as to whether or not the heart disease could be considered a claim for the new presumptive disease. Based on these facts, it is reasonable to construe the 1995 claim as claim for the new presumptive disease and a readjudication of the claim is required.

Example 4:

The Veteran filed a claim for hypertension and the medical evidence of record indicated treatment for a heart condition with medication. The claim was denied for hypertension only. In this situation, there is an indication that the Veteran had a heart condition. Based on these facts, the Veteran would be considered a Nehmer class member and readjudication of the claim is required.

A slightly different variation to the above scenario would change the outcome. The Veteran claimed hypertension, and the evidence showed a diagnosis of hypertension. Service connection for hypertension was denied. Based on these facts, we do not have a claim nor do we have a diagnosis of a new presumptive disease. In this situation, a memorandum for the record is in order.


WARNING
If there is any doubt about whether or not an individual is
a Nehmer class member, readjudicate the claim. Do not
prepare a Memorandum for the Record.



NOTE: It is anticipated that Memorandums for the Record will not be frequently used and the least likely used will be “no prior claim,” because of the liberal interpretation of a claim. Additionally, because the Nehmer stipulation requires VA to readjudicate all claims that were previously denied, it is also unlikely that “no diagnosis” will be frequently used.


Confirmed and Continued Rating

If classified as a Nehmer class member and eligibility requirements for Nehmer claims are met, but there is no change to the decision in the previous claim, you should issue a confirmed and continued rating.

If a prior claim for compensation or DIC for disability or death due to IHD, PD, or HCL was denied for some reason other than a lack of service connection, and there is no basis for awarding an earlier effective date under Nehmer, contact C&P Service. Please refer to Appendix 6 for contact information.

Examples
- If the prior claim was denied because there was no evidence that the
Veteran had IHD, PD, or HCL, and VA confirms no diagnosis during
readjudication, retroactive benefits would not be in order
- If the prior claim was abandoned or withdrawn, there would not be a basis
for retroactive payments under Nehmer

Coded Ratings

If classified as a Nehmer class member and eligibility requirements for Nehmer claims are met, and the claim is ready-to-rate, the following sections pertain to rating claims for service connection, service-connected death benefits, and claims involving service connection combined with service-connected death benefits.

Total Disability Based on Individual Unemployability (TDIU)

The RVSR is strongly encouraged to consider entitlement to TDIU when pension was previously awarded.

1. Ensure that when considering TDIU, the presumptive condition is the primary reason for the Veteran being unemployable.

2. If the RVSR has further questions, please e-mail VAVBAWAS/CO/NEHMER.

Example

The Veteran was granted entitlement to pension at 60 percent for IHD under disability code 7005. Under Nehmer review, VA determined that the Veteran is service-connected for IHD. Because IHD is the primary condition causing the Veteran to be unable to obtain or maintain gainful employment, award TDIU. Do not send VA Form 21-8940 because the evidence that VA would obtain from this form is already of record due to the pension claim.

NOTE: Prior to September 21, 1992, RVSRs were required to code all claims and noted claims (See Footnote 1 in Appendix 15).

NOTE: If a Nehmer claim involves multiple issues, only one rating decision is produced.

Claims for Service Connection

Claims for service connection may arise from:
- Informal claims
- Inferred claims
- Claims reasonably raised by VA
- For purposes of Nehmer review, a live pension claim is a claim for compensation


31

Issue(s)

Clearly state all issues of entitlement identified by the claimant or inferred based on the facts or circumstances of the claim. List the disability/disabilities and the current assigned evaluation(s). Also, specify any complications or other recognized herbicide-related conditions and the current assigned evaluation(s). See M21-1MR, Part IIl, iv.6.B.2.

Evidence and Evidentiary Basis

The Evidence section must be a clear and concise inventory of all evidence considered in arriving at the decision.

The evidence will include but is not limited to:

- Applicable dates, such as dates covered by service treatment records (STRs), identifying at least the month and year
- Private treatment reports
- Private hospitalization reports
- Information sources, such as the names of Department of Veterans Affairs (VA) and private medical facilities, private physicians, and other information sources,
- DD Form 214
- VA Form 21-526
- VA Form 21-534
- VA Form 21-530
- VA Form 21-601
- VA Form 21-4182, Application for Dependency and Indemnity Compensation or Death Pension, a supplemental attachment to Social Security application forms
- VA Examinations
- Social Security Administration Records
- Prior rating decision that denied service connection for the presumptive disability, unless this is an open claim
- Death Certificate/Autopsy Report
- All other information pertinent and related to the presumptive condition(s)

Decision

Clearly and concisely state the decision made on each issue or inferred issue. See M21-1MR, Part IIl, iv.6.C.9

Reasons for Decision

The rating decision must concisely cite and evaluate all evidence that is relevant and necessary to the determination. Clearly explain why the evidence is found to be persuasive or unpersuasive, and address all pertinent evidence relating to the presumptive condition(s).

NOTE: Nehmer decisions will be stand-alone documents as they will be reviewed without the claims folder by others as well as class counsel. Class counsel will not have the claims folder during their review, therefore, it is crucial all evidence pertinent to the presumptive condition(s) is listed and properly discussed in the decision.

Coding and Assigning a Percentage

The Cardiovascular System in the Rating Schedule was revised effective January 12, 1998. A grant of IHD prior to January 12, 1998, will require application of the Rating Schedule that was applicable on January 12, 1998. These evaluations are protected if there is no change in the condition AND the new regulation would result in a lower evaluation. However, if the new criteria provides for a higher evaluation, grant the entitlement effective the change in regulation. 38 U.S.C. § 1155; 38 C.F.R. § 3.114(a).

Special Monthly Compensation

Special monthly compensation entitlement must be considered as appropriate. Many times (S)1 (schedular housebound - single 100 percent and additional service connected conditions which combine to 60 percent), is in order when we grant an additional 100 percent under Nehmer (38 U.S.C. 1114(s) and 38 C.F.R. 3.350(i)).

Effective Date

The effective date of claims for service connection is the later of the date VA received the claim on which the prior denial was based or the date the disability arose.

For purposes of Nehmer IHD, PD, or HCL claims, the date a disability arose is the date VA had sufficient evidence or information to identify the existence of such a disease or, the evidence or information available was sufficient to “code” IHD, PD, or HCL as a disability pursuant to guidance regarding coding contained in the Veterans Benefits Adjudication Manual M21-1MR, and/or prior versions of such manual.

NOTE: 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114 do not apply to Nehmer claims.

Claims for Service-Connected Death

VA Form 21-534 must be considered for DIC if:

- Only death pension (NSC) was claimed or
- No distinction was made between death pension and DIC

VA Form 21-530, Application for Burial Benefits, must be considered for DIC if:

- SC was indicated on VA Form 21-530 and VA Form 21-534 was received within one year1
- VA‟s failure to provide VA Form 21-534 after receipt of VA Form 21-530 with SC indicated2
- In each instance, the effective date for the DIC benefits is the date the VA Form 21-530 was received3
- Receipt of attachment to Social Security Application, VA Form 21-4182, Application for Dependency and Indemnity Compensation or Death Pension, may establish the date of claim

38 C.F.R. § 3.150(b), Forms to be Furnished, receipt of notice of death must be considered if appropriate application form was not forwarded for execution by or on behalf of any dependent who has apparent entitlement to pension, compensation or DIC.

Evidence

For purposes of a Nehmer review, the standards for the evidence section of a rating decision for service-connected death do not differ from those of a rating decision for service connection. The evidence must show all the evidence pertaining to the claim identified for Nehmer review. Refer to the Evidence subsection of the Claims for Service Connection section for details on the requirements for Evidence.

Issue(s), Decision(s), and Reasons for Decision

For purposes of a Nehmer review, the standards for these elements (Issue, Decision, and Reasons for Decision) of a rating decision for service-connected death do not differ from those of a rating decision for service connection. Please refer to the subsection in the Claims for Service Connection section for guidance.

NOTE: A grant of DIC is appropriate when the presumptive condition is:

- Primary cause of death
- Secondary cause of death
- Contributory cause of death

Effective Date

The effective date for DIC claims must be one of the following dates:

- The date VA received the claim, or
- The first of the month of the Veteran‟s death, if filed within one year from the date of the Veteran‟s death.

1
38 C.F.R. § 3.152 (b)(1); Mitscher v. West, 13 Vet. App. 123, 128 (1999)
2
38 C.F.R. § 3.155(a).
3
38 C.F.R. § 3.152 (b)(1); Mitscher v. West, 13 Vet. App. 123, 128 (1999)

Dependents Educational Assistance (DEA) - Chapter 35

A new period of DEA eligibility may accrue when the Veteran dies. As such, the issue of DEA eligibility may be considered twice in a single rating, once on the basis of retroactive entitlement when the Veteran was alive, and a second time for death benefits purposes.

See Appendix 7 for Rating Templates for DIC.

Claims for Service Connection and Service-Connected Death

Note that Nehmer claims may contain multiple issues, but that these issues are addressed in a single rating decision. All Nehmer claims involving claims for service connection and service-connected death must be addressed in one rating decision.

Coding Considerations

In order to generate live coding for a death case, you MUST use the “accrued” indicator in RBA2000. It is on the “Profile” screen (the screen on which you enter the jurisdiction and date of claim) on the left side, about halfway down. It will be accessible only for a death case. If you don‟t use the “accrued” indicator, the Master Record will allow you to enter all the historical live coding data, but will print only the death data.

Issue(s), Decision(s), and Reasons for Decision

For purposes of a Nehmer review, the standards for these elements (Issue, Decision, and Reasons for Decision) of a rating decision for service-connected death do not differ from those of a rating decision for service connection. Please refer to the subsection in the Claims for Service Connection section for guidance.

NOTE: After completion of the Rating, the Database should be updated to track all actions associated with a class member‟s claim.


AUTHORIZATION

The VSR and SVSR are responsible for assuring that the rating decision, award action(s), and notice of decision with appeal rights are accurate and properly prepared for all benefits. This includes live compensation claims, DIC claims, burial claims, and other retroactive benefits.

This section involves award processing for the following types of claims:

1) Live Veterans Claims
2) DIC Claims
3) Burial Claims

Prior to award input, the Nehmer database must be utilized to ensure previous actions associated with a class member‟s claim were completed. This will include re-verifying in-country RVN service and the initial document used to support the effective date shown in the rating decision. If any discrepancy is found, it will be brought to the attention of the RVSR that rated the claim for possible corrective action or concurrence.

A notification letter is not required if a memorandum for the record is prepared by the RVSR. Clear the pending EP. Update the Nehmer Database.

Live Veterans Claims

Prepare the award under the appropriate EP as instructed by the Nehmer Project Manager (Southern Area Office).

In situations where payment is not necessary, clear the EP and do not prepare an award. Examples of such instances include confirmed and continued rating decisions.

The following sections provide additional information on dependents, previous cost of living adjustments (COLAs), and withholding for military pay.

Dependents

If the Veteran‟s new combined evaluation for compensation is 30 percent or above, additional compensation is payable based on qualified dependents (to include Helpless Child).

If development for dependency was not completed prior to the rating decision, request the required evidence after processing the rating decision. Clear the EP in these situations.

Kicker / Public Law 101-508

Veterans that were in receipt of compensation benefits on December 1, 1990, did not receive a COLA until January 1, 1991. Public Law 101-508 reinstated the December 1, 1990, COLA. This was payable on March 1, 1992. This one-time payment was known as the “kicker.” VETSNET must be manually adjusted to account for the kicker.

Liesegang, et al v. Secretary of Veterans Affairs

On December 10, 2002, the US Court of Appeals for the Federal Circuit issued a decision in the case of Liesegang, et al v. Secretary of Veteran Affairs. The Court held that the correct effective date for our regulation adding Type 2 diabetes to the list of presumptive disabilities related to herbicide exposure is May 08, 2001, instead of July 9, 2001.

As a result of that decision, VA issued an automatic one-time adjustment to 9,340 Veterans granting an earlier payment date of June 1, 2001. The one time payment was made on August 4, 2003. In each adjusted case a notice was issued to the Veteran, POA, and RO. An additional 4,680 cases were manually reviewed. When reviewing the current Nehmer cases that may have previously involved Type 2 diabetes you must assure that this adjustment was actually made. This may require a thorough review of the claims folder. It is important that the Veteran gets paid correctly when entering the information into the prior payment field in VETSNET for retroactive awards.

Withholding for Military Pay

In claims that involve military retired pay, the authorization activity must ensure that all proper adjustments are made correctly. Verify the Veteran waived his or her military pay in lieu of compensation. This can be found on VA Form 21-526 or VA Form 21-651, Election of Comp in Lieu of Retired Pay or Waiver of Retired Pay to Secure Comp from VA.

NOTE: Prior to 1978, a signature block was not included on VA Form 21-526. A copy of Form 21-651 must be of record.

In some instances, the Veteran may have received separation, severance pay, or drill pay that must be adjusted. In these instances the authorization activity must assure that all adjustments are made properly.

NOTE: In some circumstances Veterans may receive full military retirement pay and VA compensation benefit payments.

NOTE: Retired pay rates will be obtained from DFAS database.

DIC Claims

The authorization activity must check all dependency information prior to awarding benefits. Only the proper claimant(s) can be paid.

Prepare the award under an appropriate EP as instructed by the Nehmer Project Manager (Southern Area Office). Be sure the payee number for the EP is appropriate for the claimant. For more information on payee codes, see M21-1 Part I, Appendix C.

Additional Allowances

When preparing the award, be sure to include any additional allowances that the surviving spouse may be entitled. For example, an additional allowance for:
-Dependents
- Total disability rating for a continuous period of eight years or more preceding death and the spouse married to the Veteran during the same time period

Death Prior to December 31, 1992

If the Veteran died prior to January 1, 1993, DIC is paid to a surviving spouse based on whichever of the following provisions provides the greater benefit:

- 38 U.S.C. § 1311a(3), which is based on the Veteran's pay grade, or
- 38 U.S.C. § 1311a(1) and 38 U.S.C. § 1311a(2), which is based on the basic rate of DIC and any additional allowance payable because the Veteran was rated as totally disabled for at least eight continuous years and married to the surviving spouse for the same period of time

The pay grade for all Veterans who died prior to December 31, 1992, must be verified. Pay grade may be found on the DD Form 214 or other service documents.

A verified pay grade code is not required on:

- Awards of DIC to children or parents, or
- Awards based on a Veteran's death after December 31, 1992

Withholding for SBP Payments

In claims that involve SBP, the authorization activity must assure that all proper adjustments are made correctly. Under a recent Federal Circuit decision, DFAS cannot deduct DIC payments from monthly SBP annuities, if the annuitant is entitled to both DIC and SBP benefits, and has remarried after age 57.

NOTE: SBP payments may be obtained from DFAS database.

Remarriage of the Surviving Spouse

The Surviving Spouse may have remarried after the death of the Veteran. Please review M21-1MR, IV.III.3.F.23, General Information on the Effect of a Surviving Spouse's Remarriage, for additional guidance.

Month of Death Payment

Before awarding the month of death payment, verify that the surviving spouse has not received this payment by using the Payment History Inquiry Screen in Corporate and a review of the claims folder.

Consideration of VA Form 21-4182, Application for Dependency and Indemnity Compensation or Death Pension, must be recognized as a claim for VA death benefits (See M21-1MR IV.iii.3.A.4 and 38 C.F.R. § 3.153).

VA Form 21-4182 constitutes an initial claim for any or all of the death benefits:

-DIC
- Death pension, and/or
- Accrued benefits.

Additional information may be found M21-1MR III.ii.2.C.14.b.

Burial Claims

Before awarding monetary burial benefits the authorization activity must verify all
evidence is of record.

Prepare the award under an appropriate EP as instructed by the Nehmer Project
Manager (Southern Area Office).

The following sections provide additional information on dependents, previous
cost of living adjustments, and withholding for military pay.

Burial Claims Prior to the Current December 1, 2001, Rate

Please be aware that service connected burial payments were less than $2000
prior to December 1, 2001. See the table below for a list of prior rates and their
effective dates.

Burial Amounts

06-18-73 SC Amount: $ 800 NSC Burial Amount: $250 NSC Plot Amount: $150
10-01-78 SC Amount: 1100 NSC Burial Amount: 300 NSC Plot Amount: 150
04-01-88 SC Amount: 1500 NSC Burial Amount: 300 NSC Plot Amount: 150
09-11-01* SC Amount: 2000 NSC Burial Amount: 300 NSC Plot Amount: 300
12-01-01 SC Amount: *2000 NSC Burial Amount: 300 NSC Plot Amount: 300

* The SC burial amount was increased on December 1, 2001, and is effective for deaths that occurred on or after September 11, 2001.

Prior Payments of NSC Burial

Check the claims folder for any prior payments of NSC burial. This amount must be deducted from the total amount for service connected benefits payable.

Retroactive Benefits

Prepare the award under an appropriate EP as instructed by the Nehmer Project Manager (Southern Area Office). Ensure that the correct rates and total retroactive amounts have been calculated correctly. If multiple payees exist, prepare awards using different payee codes, dividing the total amount equally.

Award Annotation

The VSR must annotate the award with “Nehmer Retroactive payment based on [the name of new presumptive condition]” in the remarks section of the award printout.

Notification Letter

Use PCGL to generate the notification letters. Be sure to suppress the BDN- generated letters as only locally generated letters may be issued. Examples of the notification letters for live cases and death cases can be found in Appendix 10.

For burial claims, use the standard burial letter found in PCGL to generate the notification letters. This letter should be merged with the death letter, when there was a claim for DIC.

Verify the letter contains a calculation of the retroactive amount and be sure to include all ancillary benefits that the Veteran or his/her dependents may be entitled. Award and denial letters must include:

- The decision made
- The monthly VA rates
- The applicable effective dates
- Any benefits being withheld and the reason for withholding benefits
- Estimated retroactive benefit
- Appellate rights of the claimant
- Information about any additional benefits or entitlements the claimant may be due

After award authorization, the letters must be scanned into Virtual VA. For more information on using Virtual VA, see the Virtual VA User Guide.

Sending Documents to OGC

In accordance with the court order, a copy of the Payment History Inquiry Screen in Corporate must be submitted when requested by OGC. Please refer to Appendix 6 for contact information.




APPENDICES

Appendix 1 – List of Presumptive Conditions in 38 C.F.R. § 3.816

The following is a list of conditions presumptively associated with herbicide exposure and the dates the regulations governing the presumptions became effective, as found in 38 C.F.R. § 3.816 (b)(2):

Soft-tissue Sarcoma October 15, 1991
Hodgkin‟s disease February 3, 1994
Non-Hodgkin‟s lymphoma May 19, 1993
Porphyria cutanea tarda February 3, 1994
Lung cancer June 9, 1994
Bronchus cancer June 9, 1994
Larynx cancer June 9, 1994
Trachea cancer June 9, 1994
Multiple myeloma June 9, 1994
Acute and Subacute peripheral neuropathy November 7, 1996
Prostate cancer November 7, 1996
Type 2 Diabetes May 8, 2001
Chronic lymphocytic leukemia (CLL) October 16, 2003
AL Amyloidosis (ALA) May 7, 2009
Ischemic heart disease [Pending Regulation]
Parkinson‟s disease [Pending Regulation]
B-cell leukemia [Pending Regulation]



Appendix 2 – Information on Vietnam Naval Operations

C&P Service has initiated a program to collect data on Vietnam naval operations for the purpose of providing regional offices with information to assist with development in Haas related disability claims based on herbicide exposure from Navy Veterans. To date, we have received verification from various sources showing that a number of offshore “blue water” naval vessels conducted operations on the inland “brown water” rivers and delta areas of Vietnam. We have also identified certain vessel types that operated primarily or exclusively on the inland waterways. The ships and dates of inland waterway service are listed below. If a Veteran‟s service aboard one of these ships can be confirmed through military records during the time frames specified, then exposure to
herbicide agents can be presumed without further development.

All vessels of Inshore Fire Support [IFS] Division 93 during their entire Vietnam tour
- USS Carronade (IFS 1)
- USS Clarion River (LSMR 409) [Landing Ship, Medium, Rocket]
- USS Francis River (LSMR 525)
- USS White River (LSMR 536)


All vessels with the designation LST [Landing Ship, Tank] during their entire tour [WWII ships converted to transport supplies on rivers and serve as barracks for brown water Mobile Riverine Forces]

All vessels with the designation LCVP [Landing Craft, Vehicle, Personnel] during their entire tour

All vessels with the designation PCF [Patrol Craft, Fast] during their entire tour [Also called Swift Boats, operating for enemy interdiction on close coastal waters]

All vessels with the designation PBR [Patrol Boat, River] during their entire tour [Also called River Patrol Boats as part of the Mobile Riverine Forces operating on inland waterways and featured in the Vietnam film “Apocalypse Now”]

- USS Mansfield (DD-728) [Destroyer] [Operated on Saigon River August 8- 19, 1967, and December 21-24, 1968]

- USS Richard E. Kraus (DD-849) [Destroyer] [Operated on coastal inlet north of Da Nang, June 2-5, 1966, protecting Marines holding a bridge]

- USS Basilone (DD-824) [Destroyer] [Operated on Saigon River, May 24- 25, 1966]

- USS Hamner (DD-718) [Destroyer] [Operated on Song Lon Tao and Long Song Tao Rivers, August 15-September 1, 1966]

- USS Conway (DD-507) [Destroyer] [Operated on Saigon River, early August 1966]

- USS Fiske (DD-842) [Destroyer] [Operated on Mekong River, June 16-21, 1966]

- USS Black (DD-666) [Destroyer] [Operated on Saigon River, July 13-19, 1966]

- USS Providence (CLG-6) [Cruiser, Light, Guided Missile] [Operated on Saigon River 3 days during January 1964]

- USS Mahan (DLG-11) [Guided Missile Frigate] [Operated on Saigon River October 24-28, 1964]

- USS Okanogan (APA-220) [Attack Transport] [Operated on Saigon River July 22-23, 29-30, 1968, and August 5-6, 1968]

- USS Niagara Falls (AFS-3) [Combat Stores Ship] [Unloaded supplies on Saigon River and Cam Rahn Bay, April 22-25, 1968]


Exposure Aboard the USS Ingersoll

The National Archives and Records Administration (NARA) has confirmed that the Navy destroyer USS Ingersoll (DD 652) traveled into the inland waterways of RVN on October 24 and 25, 1965. Concede exposure to herbicides for crewmembers that served aboard the USS Ingersoll on these dates.

If a Veteran alleges herbicide exposure based on duty aboard the USS Ingersoll, request Navy personnel records via DPRIS (request code O19).

If personnel records are unavailable, or do not confirm a specific shipboard assignment during this timeframe, send a request for a review of NARA records to C&P Service via e-mail at VAVBAWAS/CO/211/AGENTORANGE. This request should include the Veteran's:

- Name
- Date of birth
- VA claim number
- Social Security number (SSN), and
- Service number, if different than SSN


Claims Based on Service Aboard Ships Offshore the RVN

When a Veteran claims exposure to herbicides during service aboard a Navy or Coast Guard ship that operated on the offshore waters of the RVN, establish exposure on a presumptive basis if:

- Evidence shows the ship
-- Docked on the shores of the RVN, or
-- Operated temporarily on the RVN inland waterways

- Evidence places the Veteran onboard the ship at the time the ship docked on the shore or operated in inland waterways, and

- If the Veteran claims the ship docked on the shore, the Veteran has stated that he/she went ashore after the ship docked

IMPORTANT: In all cases where a Veteran claims exposure to herbicides during service aboard a ship in offshore waters, regional offices should place a copy of the U.S. Army and Joint Services Records Research Center's (JSRRC's) memorandum shown in Appendix 3 in the Veteran's claim folder. This document will:

- Substitute for individual inquiries to the Compensation and Pension Service's Agent Orange mailbox and to the JSRRC, and
- Establish that the JSRRC has no evidence to support a claim of herbicide exposure during shipboard service

NOTE:
- Service aboard a ship that anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Ranh Bay, along the RVN coast does not constitute inland waterway service or qualify as docking to the shore and is not sufficient to establish presumptive exposure to herbicides. Evidence of shore docking is required in order to concede the possibility that the Veteran's service involved duty or visitation in the RVN

- Veterans who served aboard large ocean-going ships that operated on the offshore waters of the RVN are often referred to as "blue water" Veterans because of the blue color of the deep offshore waters. They are distinguished from "brown water" Veterans who served aboard smaller river patrol and swift boats that operated on the brown-colored rivers, canals, estuaries, and delta areas making up the inland waterways of the RVN

- Brown water Navy and Coast Guard Veterans receive the same presumption of herbicide exposure as Veterans who served on the ground in the RVN




Appendix 3 – Naval and Coast Guard Development

The current development and due process requirements for Navy and Coast Guard claims include sending a request for research to both the C&P Service Agent Orange Mailbox and JSRRC for verification exposure. In order to expedite the resolution of these claims, JSRRC provided a document for inclusion in the Veteran‟s file.

This document substitutes as a response from the C&P Service Agent Orange Mailbox as well JSRRC and explains that there is no available evidence to support a claim of herbicide exposure aboard a Navy or Coast Guard ship during Vietnam. It will serve as a final JSRRC response in claims where the Veteran alleges exposure based on:
1) loading herbicide agents aboard a naval ship for transportation to Vietnam,
(2) serving aboard a ship that transported, stored, used, or tested herbicide agents, and
(3) working on shipboard aircraft that flew over Vietnam or equipment that was used in Vietnam.



JSRRC Memorandum

DEPARTMENT OF THE ARMY
U.S. ARMY & JOINT SERVICES RECORDS RESEARCH CENTER
7701 TELEGRAPH ROAD
KINGMAN BUILDING, ROOM 2C08
ALEXANDRIA, VA 22315-3828

AAHS-RDC 01 May 09

MEMORANDUM FOR RECORD

SUBJECT: Joint Services Records Research Center Statement on Research Findings Regarding Navy and Coast Guard Ships During the Vietnam Era

1. In the course of its research efforts, the JSRRC has reviewed numerous official military documents, ships histories, deck logs, and other sources of information related to Navy and Coast Guard ships and the use of tactical herbicide agents, such as Agent Orange, during the Vietnam Era.

2. To date, the JSRRC has found no evidence that indicates Navy or Coast Guard ships transported tactical herbicides from the United States to the Republic of Vietnam or that ships operating off the coast of Vietnam used, stored, tested, or transported tactical herbicides. Additionally, the JSRRC cannot document or verify that a shipboard veteran was exposed to tactical herbicides based on contact with aircraft that flew over Vietnam or equipment that was used in Vietnam.

3. Therefore, the JSRRC can provide no evidence to support a veteran's claim of exposure to tactical herbicide agents while serving aboard a Navy or Coast Guard ship during the Vietnam Era.

/s/
Domenic A. Baldini
Director




Appendix 4 – List of APOs for Verification of RVN Service

For a complete list of the FPO-APO addresses, visit:

http://vbaw.vba.va.gov/bl.../general/GENERAL%201942-
2002%20APO-FPO%20Files.pdf

or do the following:

- From the C&P Service Intranet Home Page, click on “Stressor Verification
Site” which is located under the Rating Job Aids section
- On the “Stressor Verification - General Information” page, click on
“General 1942-2002 APO-FPO Files”
- After clicking on the link, the PDF will load all of the FPO-APO files.
- The Vietnam FPO-APO addresses begin on page 4999

The following APO‟s have been verified by the Military Postal Service Agency
(MPSA) as having been used for delivery to Vietnam.

15 27 38 40 91 95 96 97
137 143 157 158 299 300 307 96495
96496 96499 96208 96214 96215 96216 96217 96219
96221 96222 96223 96225 96226 96227 96228 96230
96234 96236 96238 96240 96243 96250 96256 96257
96258 96260 96262 96265 96266 96268 96269 96278
96279 96289 96291 96294 96295 96296 96297 96307
96308 96309 96312 96314 96316 96317 96318 96320
96321 96322 96325 96326 96327 96332 96337 96345
96347 96348 96349 96350 96353 96355 96357 96359
96361 96362 96363 96368 96370 96371 96372 96373
96374 96375 96376 96377 96379 96381 96383 96384
96385 96388 96393 96392 96395 96398 96494 96399
96402 96477 96485 96490 96491 96492 96493

A hospital or medical treatment report with one of the approved APO codes indicates that the Veteran was seen or treated in an RVN.




Appendix 5 – Workflow for Processing Nehmer Claims

NOTE: TO VBN USERS: THIS IS A GRAPH WHICH I CANNOT DO HERE.


Is the claimant a Nehmer class member?
Does the Claimant Have:
In-country Vietnam Service
Diagnosis
Prior Claim
No -
Not a Nehmer
class member
Yes -
Nehmer class member
Is medical or service
development required
Live/death
VSR/RVSR determines
medical evidence is
sufficient to rate
Can
VSR identify all
claimant(s) and
current
address No to
any
Evidence
received
Annotate the claims file
SVSR reviews and
approves rating and
decision notice
Yes to both
No
Death only - No
prior live claim(s)
on/after 9/25/85
VSR reviews all
prior ratings for
earlier effective
date or initial grant
VSR reviews file
for 21-534 (DIC)
and/or 21-530
(burial)
If there was a 530,
was development
done for a 534
Consider SC death
Consider SC death
VSR reviews:
 File
 Death certificate
 Dependency information
 Income information
 Proper claimant
 Paid receipt of burial expenses
VSR/RVSR
determines
evidence of record
is sufficient to rate
Yes and 534
was sent back
RVSR prepares
memo for the
record
Not a Nehmer
class member
No
Yes and 534 was
not sent back
RVSR prepares rating to address:
 Live vs. death issues
 New AO presumptions
 Any deficiency for other AO
presumptions
 All rating deficiencies
 Any pending issues not
related to AO presumptives
 Effective date
VSR/RVSR reviews claims
and determines required
development - verify in-
country Vietnam service
and clarifies diagnosis and
other information, i.e.
dependency, parent, SBP,
retired pay, location of
eligible payees, death
certificate, current medical
and burial receipts.
30 day suspense and no
limit imposed for
submission of evidence
Yes No
RVSR second signature
review of rating
VSR prepares decision notice
that includes:
 Appeal rights
 Ancillary information
 Amount of retro
VSR prepares decision
notice with appeal rights
VSR:
 Prepares decision notice
addressed to estate of class
member and/or potential
claimant(s) identified in
claims file
 Inquires about other potential
claimant(s)
 Amount of retro
 30 day suspense
 No limit imposed for
submission of evidence
Yes
At end of 30 day suspense
or receipt of required
evidence, VSR sends to
RVSR for rating
preparation. No limit
imposed for submission of
evidence



Appendix 6 – Contact Information for Processing Nehmer Claims

Compensation and Pension Service
Method Contact Information
E-mail VAVBAWAS/CO/NEHMER
Mailing Address Department of Veterans Affairs
Compensation & Pension Service (211A)
Attn: Nehmer Working Group
810 Vermont Ave NW
Washington, DC 20420


Southern Area Office
Method Contact Information
E-mail VAVBANAS/SAREA/NEHMER
Telephone 615-695-4070
Mailing Address Department of Veterans Affairs
Southern Area Office
3322 West End, Suite 408
Nashville, TN 37203


Defense Finance and Accounting Service – SBP ONLY
Method Contact Information
Telephone - SBP ONLY 216-522-6393
Separation, severance and retired pay contact
information will be provided at a later date.




Appendix 7 – Example Rating Decisions

The following pages provide example Nehmer rating decisions for your reference.



Example Rating Decision for Live Compensation with No Prior Grant

INTRODUCTION

Mr./Ms. [enter full name], your records reflect that you are a Veteran who served in the [enter military branch] from [enter date] to [enter date]. The Secretary of the Department of Veterans Affairs (VA) has established that Ischemic Heart Disease, Parkinson‟s Disease, Hairy Cell Leukemia and other Chronic B-cell Leukemias warrant presumptive service connection based on the association between exposure to herbicides used in the Republic of Vietnam and the subsequent development of these conditions.

VA records indicate that you previously filed a claim for [insert name of new presumptive condition] and were subsequently denied. A special review of your claims file was mandated by federal court order in Nehmer v. Department of Veterans Affairs. Based on our review of the evidence listed below, we have made the following decision(s) in your case.

DECISION

1. Service connection for [insert new presumptive condition here] associated with herbicide exposure is granted with a [percentage] percent evaluation, effective [insert date of receipt of the Veteran‟s initial claim for service connection for this condition].

EVIDENCE

- DD Form 214
- VA Form 21-526, Veteran‟s Application for Compensation or Pension, received on [insert date]
- Other information that creates a claim (informal, inferred, footnote 1)
- VA examination dated [insert date of exam]
- Other Medical Evidence (private, SSA, treatment reports)
- Service Treatment Records
- Rating decision dated [insert date of rating here], denying service connection for [insert new presumptive condition here]
- Include all information pertinent and related to the presumptive condition(s).

REASONS FOR DECISION

Pursuant to the authority granted by the Agent Orange Act of 1991, VA may determine that a presumption of service connection based on exposure to herbicides used in Vietnam is warranted for conditions that VA has found to have a statistically significant association with such exposure. As such, VA has determined that a statistically significant association exists between exposure to herbicides and subsequent development of the following conditions: chloracne, non-Hodgkin‟s lymphoma, soft tissue sarcoma, Hodgkin‟s disease, porphyria cutanea tarda (PCT), multiple myeloma, acute and subacute peripheral neuropathy, prostate cancer, cancers of the lung, bronchus, larynx, trachea, Type II (adult-onset) diabetes mellitus, chronic lymphocytic leukemia, AL amyloidosis, Parkinson‟s disease, ischemic heart disease, and B-cell leukemias, such as hairy cell leukemia.

For purposes of this review, Vietnam Veterans had in-country service in the Republic of Vietnam.

1. Service connection is granted for [insert presumptive diagnosis], for purposes of entitlement to retroactive benefits.

VA has confirmed that you had in-country service in the Republic of Vietnam based on [insert evidence here].

Medical evidence from [hospital, doctor, laboratory results] in the record indicates a diagnosis of [diagnosis] on [date]. [Reason for effective date].

You claimed service connection for [diagnosis] on [insert date of claim]. Service connection for [diagnosis] was denied by a rating decision dated, [insert date of decision] because [diagnosis] was not incurred or aggravated during military service, nor was it present to a degree of 10 percent within one year of your discharge from active duty.

Subsequently, [diagnosis] was added recently to the list of disabilities recognized as being related to herbicide exposure. As such, service connection for [diagnosis] is now granted because it is presumptively related to your military service. The effective date of service connection for [diagnosis] is [insert date of receipt of claim], the date your original claim for service connection for [diagnosis] was received.

[Insert paragraph for rating of the new presumptive condition and include an
explanation of the percentage assigned for the condition, as well as the
requirements for achieving the next higher percentage level.]
[Include a thorough discussion of relevant medical evidence used to assign the
rating, including any secondary conditions.]



Example Rating Decision for Live Compensation with Prior Grant

INTRODUCTION

Mr./Ms. [enter full name], your records reflect that you are a Veteran who served in the [enter military branch] from [enter date] to [enter date]. The Secretary of the Department of Veterans Affairs (VA) has established that Ischemic Heart Disease, Parkinson‟s Disease, Hairy Cell Leukemia and other Chronic B-cell Leukemias warrant presumptive service connection based on the association between exposure to herbicides used in the Republic of Vietnam and the subsequent development of these conditions.

VA records indicate that service connection was previously granted for [insert issue/diagnosis] and [insert type of benefits] benefits were paid.

VA records indicate that you previously filed a claim for [insert name of new presumptive condition(s)] and were subsequently denied. A special review of your claims file was mandated by federal court order in Nehmer v. Department of Veterans Affairs. Based on our review of the evidence listed below, we have made the following decision(s) in your case.

DECISION

1. Service connection for [insert presumptive disability] associated with herbicide exposure is granted with a [percentage] percent evaluation, effective [insert date].

EVIDENCE

- DD Form 214
- VA Form 21-526, Veteran‟s Application for Compensation or Pension, received on [date]
- VA Form XX-XXXX
- Other information that creates a claim (informal, inferred, footnote 1) - VA examination dated [insert date of exam]
- Other Medical Evidence (private, SSA, treatment reports)
- Service Treatment Records
- Rating decision dated [insert date of rating here], denied service connection for [insert new presumptive condition here]
- Include all information pertinent and related to the presumptive disability(s)

REASONS FOR DECISION

Pursuant to the authority granted by the Agent Orange Act of 1991, VA may determine that a presumption of service connection based on exposure to herbicides used in Vietnam is warranted for conditions that VA has found to have a statistically significant association with such exposure. As such, VA has determined that a statistically significant association exists between exposure to herbicides and subsequent development of the following conditions: chloracne, non-Hodgkin‟s lymphoma, soft tissue sarcoma, Hodgkin‟s disease, porphyria cutanea tarda (PCT), multiple myeloma, acute and subacute peripheral neuropathy, prostate cancer, cancers of the lung, bronchus, larynx, trachea, Type II (adult-onset) diabetes mellitus, chronic lymphocytic leukemia, AL amyloidosis, Parkinson‟s disease, ischemic heart disease, and B-cell leukemias,
such as hairy cell leukemia.

For purposes of this review, Vietnam Veterans had in-country service in Republic of Vietnam.

1. Service connection for [insert presumptive disability], for purposes of entitlement to retroactive benefits.

VA has confirmed that you had in-country service in the Republic of Vietnam based on [insert evidence here].

Medical evidence from [hospital, doctor, laboratory results] in the record indicates a diagnosis of [insert presumptive disability] on [date].

You claimed service connection for [insert disability] on [insert date of claim]. ervice connection for [disability] was established by a rating decision dated, [insert date of decision] because [insert basis for grant].

Subsequently, [insert presumptive disability] was added recently to the list of disabilities recognized as being related to herbicide exposure. As such, service connection is now granted because it is presumptively related to your military service. The effective date of service connection for [insert presumptive disability] is [insert date of receipt of claim], the date your original claim for service connection for [insert presumptive disability] was received.

[Insert paragraph for rating of the new presumptive condition and include an explanation of the percentage assigned for the condition, as well as the requirements for achieving the next higher percentage level.]



Example Rating Decision for Live Compensation Denial

INTRODUCTION

Mr./Ms. [full name], your records reflect that you are a Veteran who served in the [military branch] from [date] to [date]. The Secretary of the Department of Veterans Affairs (VA) has established that Ischemic Heart Disease, Parkinson’s Disease, Hairy Cell Leukemia and other Chronic B-cell Leukemias warrant presumptive service connection based on the association between exposure to herbicides used in the Republic of Vietnam and the subsequent development of these conditions.

VA records indicate that you previously filed a claim for [insert name of new presumptive condition] and were subsequently denied. A special review of your claims file was mandated by federal court order in Nehmer v. Department of Veterans Affairs. Based on our review of the evidence listed below, we have made the following decision(s) in your case.

DECISION

1. Service connection for [insert presumptive disability], for purposes of -entitlement to retroactive benefits is not granted.

EVIDENCE

- DD Form 214
- VA Form 21-526, Veteran‟s Application for Compensation or Pension, received on [insert date received]
- Other information that creates a claim (informal, inferred, footnote 1)
- VA examination dated [insert date of exam]
- Other Medical Evidence (private, SSA, treatment reports)
- Service Treatment Records
- Rating decision dated [insert date of rating here], denying service connection for [insert new presumptive condition here]

REASONS FOR DECISION

Pursuant to the authority granted by the Agent Orange Act of 1991, VA may determine that a presumption of service connection based on exposure to herbicides used in Vietnam is warranted for conditions that VA has found to have a statistically significant association with such exposure. As such, VA has determined that a statistically significant association exists between exposure to herbicides and subsequent development of the following conditions: chloracne, non-Hodgkin‟s lymphoma, soft tissue sarcoma, Hodgkin‟s disease, porphyria cutanea tarda (PCT), multiple myeloma, acute and subacute peripheral neuropathy, prostate cancer, cancers of the lung, bronchus, larynx, trachea, Type II (adult-onset) diabetes mellitus, chronic lymphocytic leukemia, AL amyloidosis, Parkinson‟s disease, ischemic heart disease, and B-cell leukemias,
such as hairy cell leukemia.

For purposes of this review, Vietnam Veterans had in-country service in the Republic of Vietnam.

1. Service connection for [insert presumptive disability], for purposes of entitlement to retroactive benefits.

For purposes of this review, Vietnam Veterans had in-country service in the Republic of Vietnam.

Medical evidence from [hospital, doctor, laboratory results] in the record indicates a diagnosis of [insert presumptive disability] on [date]. You claimed service connection for [insert presumptive disability] on [insert date of claim]. Service connection for [enter presumptive disability] was denied by a rating decision dated, [insert date of decision] because [insert reason(s) for denial].

The denial of your claim for service connection for [insert presumptive disability] is confirmed, because [insert reason(s) for confirming denial.

[Include an explanation for the denial here]




Example Rating Decision for Service-Connected Death Grant with No Prior
Grant

INTRODUCTION

VA‟s records reflect that [full name] was a Veteran who served in the [military branch] from [date] to [date]. The Secretary of the Department of Veterans Affairs (VA) has established that Ischemic Heart Disease, Parkinson‟s Disease, Hairy Cell Leukemia and other Chronic B-cell Leukemias warrant presumptive service connection based on the association between exposure to herbicides used in the Republic of Vietnam and the subsequent development of these conditions.

VA‟s records indicate that you previously filed a claim for your [DIC claimant’s relationship]‟s death as a result of [insert presumptive disability] and were subsequently denied. A special review of the Veteran‟s claims file was mandated by federal court order in Nehmer v. Department of Veterans Affairs. Based on our review of the evidence listed below, we have made the following decision(s) in this case.

DECISION

1. Service connection for the cause of death is granted.
2. Basic eligibility to Dependents‟ Educational Assistance is established effective [insert date].

EVIDENCE

- DD Form 214
- VA Form 21-534, Application for Dependency and Indemnity Compensation, received on [date]
- Death certificate
- Medical Evidence [Medical Evidence may include, but is not limited to 1) diagnosis; 2) date of diagnosis; 3) date of death; 4) cause of death; and autopsy report.]

*Note to RVSR: Always verify that the Veteran filed no claim during his/her lifetime. Also verify whether a 21-530, Application for Burial Benefits has been submitted.

REASONS FOR DECISION

Pursuant to the authority granted by the Agent Orange Act of 1991, VA may determine that a presumption of service connection based on exposure to herbicides used in Vietnam is warranted for conditions that VA has found to have a statistically significant association with such exposure. As such, VA has determined that a statistically significant association exists between exposure to herbicides and subsequent development of the following conditions: chloracne, non-Hodgkin‟s lymphoma, soft tissue sarcoma, Hodgkin‟s disease, porphyria cutanea tarda (PCT), multiple myeloma, acute and subacute peripheral neuropathy, prostate cancer, cancers of the lung, bronchus, larynx, trachea, Type II (adult-onset) diabetes mellitus, chronic lymphocytic leukemia, AL amyloidosis, Parkinson‟s disease, ischemic heart disease, and B-cell leukemias,
such as hairy cell leukemia.

For purposes of this review, Vietnam Veterans had in-country service in the Republic of Vietnam.

1. Service connection for the cause of the Veteran‟s death, for purposes of entitlement to retroactive benefits.

VA has confirmed that the Veteran had in-country service in the Republic of Vietnam based on [insert evidence here].

During the lifetime of the Veteran, [he/she] did not submit a claim for benefits based on [insert presumptive disability].

On [date] a claim for service connected death benefits as a result of the Veteran‟s death was received. On [date], this claim was denied because, at that time, [insert presumptive disability] was not found to have been incurred or aggravated during military service, nor was it present to a degree of 10 percent within one year of the Veteran‟s discharge from active duty.

On [date] the Veteran died and the cause of death was recorded as [cause of death, including contributory causes, if relevant].

Subsequently, [insert presumptive disability] was added recently to the list of disabilities recognized as being related to Agent Orange exposure. As such, service connection for the cause of the Veteran‟s death is now granted, effective from [date]. [Reason for effective date]

NOTE: [Insert only if a VAF 21-530 is not in file-Please send VA Form 21-530, Application for Burial Benefits to surviving spouse.]

2. Eligibility for Dependents‟ Educational Assistance under 38 U.S.C. Chapter 35.

Eligibility to Dependents‟ Educational Assistance is derived from a Veteran who has a permanent and total service-connected disability; or a permanent and total disability was in existence at the time of death; or the Veteran died as a result of a service-connected disability. Also, eligibility exists for a serviceperson who died in service. Basic eligibility to Dependents‟ Education Assistance is granted and is effective from [insert date], because the Veteran‟s death is presumptively related to military service.

[Insert the reasons for the effective date here]




Example Rating Decision for Service-Connected Death Grant with Prior Grant (claim received within one year of Veteran’s death)

INTRODUCTION

VA‟s records reflect that [full name] was a Veteran who served in the [military branch] from [date] to [date]. The Secretary of the Department of Veterans Affairs (VA) has established that Ischemic Heart Disease, Parkinson‟s Disease, Hairy Cell Leukemia and other Chronic B-cell Leukemias warrant presumptive service connection based on the association between exposure to herbicides used in the Republic of Vietnam and the subsequent development of these conditions.

VA‟s records indicate that you previously filed a claim for your [DIC claimant’s relationship]‟s death as a result of [insert name of new presumptive condition]. A special review of the Veteran‟s claims file was mandated by federal court order in Nehmer v. Department of Veterans Affairs. Based on our review of the evidence listed below, we have made the following decision(s) in this case.

DECISION

1. An earlier effective date is granted for the service-connected cause of death.
2. An earlier effective date for eligibility to Dependents‟ Educational Assistance is established.

EVIDENCE

- DD Form 214
- VA Form 21-530, Application for Burial Benefits, received on [insert date 530 received]
- VA Form 21-534, Application for Dependency and Indemnity Compensation (DIC), received on [insert date 534 received]
- Death certificate
- Medical Evidence [Medical Evidence may include, but is not limited to 1) diagnosis; 2) date of diagnosis; 3) date of death; 4) cause of death; and autopsy report.]
- Rating decision dated [insert date of rating for 530 claim] granting burial benefits, effective [insert effective date]
- Decision dated [insert date of decision for 534] for service connection for the cause of death, effective [insert effective date]

REASONS FOR DECISION

Pursuant to the authority granted by the Agent Orange Act of 1991, VA may determine that a presumption of service connection based on exposure to herbicides used in Vietnam is warranted for conditions that VA has found to have a statistically significant association with such exposure. As such, VA has determined that a statistically significant association exists between exposure to herbicides and subsequent development of the following conditions: chloracne, non-Hodgkin‟s lymphoma, soft tissue sarcoma, Hodgkin‟s disease, porphyria cutanea tarda (PCT), multiple myeloma, acute and subacute peripheral neuropathy, prostate cancer, cancers of the lung, bronchus, larynx, trachea, Type II (adult-onset) diabetes mellitus, chronic lymphocytic leukemia, AL amyloidosis, Parkinson‟s disease, ischemic heart disease, and B-cell leukemias,
such as hairy cell leukemia.

For purposes of this review, Vietnam Veterans had in-country service in the Republic of Vietnam.

1. An earlier effective date is granted for the service-connected cause of death.

VA has confirmed that the Veteran had in-country service in the Republic of Vietnam based on [insert evidence here].

On [insert date of diagnosis], medical evidence in the record indicates your [insert claimant‟s relationship] was diagnosed with [insert presumptive disability]. On [date] your [insert claimant‟s relationship] died and the cause of death was recorded as [cause of death, including contributory causes, if relevant].

On [date of award and notice letter], we granted benefits for your DIC claim, with an effective date of [insert effective date for 534], the date your DIC claim was received.

Subsequently, [insert presumptive diagnosis] was added to the list of disabilities recognized as being related to Agent Orange exposure. As such, an earlier effective date for DIC benefits as a result of your [insert claimant‟s relationship]‟s death is now granted. The effective date is [insert earlier effective date] [Reason for earlier effective date].

2. An earlier effective date for Dependents‟ Educational Assistance under 38 U.S.C. Chapter 35.

Eligibility to Dependents‟ Educational Assistance is derived from a Veteran who has a permanent and total service-connected disability; or a permanent and total disability was in existence at the time of death; or the Veteran died as a result of a service-connected disability. Also, eligibility exists for a serviceperson who died in service. Basic eligibility to Dependents‟ Education Assistance is granted and is effective from [date].



Example Rating Decision for Service-Connected Death Grant with Prior
Pension Grant

INTRODUCTION

VA‟s records reflect that [full name] was a Veteran who served in the [military branch] from [date] to [date]. The Secretary of the Department of Veterans Affairs (VA) has established that Ischemic Heart Disease, Parkinson‟s Disease, Hairy Cell Leukemia and other Chronic B-cell Leukemias warrant presumptive service connection based on the association between exposure to herbicides used in the Republic of Vietnam and the subsequent development of these conditions.

VA‟s records indicate that there was a claim previously filed for your [DIC claimant‟s relationship]‟s death as a result of [insert name of new presumptive condition]. A special review of the Veteran‟s claims file was mandated by federal court order in Nehmer v. Department of Veterans Affairs. Based on our review of the evidence listed below, we have made the following decision(s) in this case.

DECISION

1. Service connection for the cause of death is granted.
2. Basic eligibility to Dependents‟ Educational Assistance is established.

EVIDENCE

- DD Form 214
- VA Form 21-534, Application for Dependency and Indemnity Compensation (DIC), received on [insert date 534 received]
- Death certificate
- Medical Evidence [Medical Evidence may include, but is not limited to 1) diagnosis; 2) date of diagnosis; 3) date of death; 4) cause of death; and autopsy report.]

REASONS FOR DECISION

Pursuant to the authority granted by the Agent Orange Act of 1991, VA may determine that a presumption of service connection based on exposure to herbicides used in Vietnam is warranted for conditions that VA has found to have a statistically significant association with such exposure. As such, VA has determined that a statistically significant association exists between exposure to herbicides and subsequent development of the following conditions: chloracne, non-Hodgkin‟s lymphoma, soft tissue sarcoma, Hodgkin‟s disease, porphyria cutanea tarda (PCT), multiple myeloma, acute and subacute peripheral neuropathy, prostate cancer, cancers of the lung, bronchus, larynx, trachea, Type II (adult-onset) diabetes mellitus, chronic lymphocytic leukemia, AL amyloidosis, Parkinson‟s disease, ischemic heart disease, and B-cell leukemias, such as hairy cell leukemia.

For purposes of this review, Vietnam Veterans had in-country service in the Republic of Vietnam.

1. Service connection for the cause of the Veteran‟s death, for purposes of entitlement to retroactive benefits.

VA has confirmed that the Veteran had in-country service in the Republic of Vietnam based on [insert evidence here].

On [insert date VA Form 21-534 received] you filed a claim for non service- connected pension benefits. Medical evidence in the record indicates a diagnosis of [insert presumptive disability] on [insert date of diagnosis]. On [date] the Veteran died and the cause of death was recorded as [cause of death, including contributory causes, if relevant].

On [date], we granted non service-connected pension benefits, effective [insert effective date].

Subsequently, [insert presumptive disability] was added recently to the list of disabilities recognized as being related to Agent Orange exposure. As such, service connection for cause of death is now granted. The effective date is [date VA Form 21-534 claim was received], the date your claim for non service- connected benefits was submitted.

2. Eligibility for Dependents‟ Educational Assistance under 38 U.S.C. Chapter 35.

Eligibility to Dependents‟ Educational Assistance is derived from a Veteran who has a permanent and total service-connected disability; or a permanent and total disability was in existence at the time of death; or the Veteran died as a result of a service-connected disability. Also, eligibility exists for a serviceperson who died in service. Basic eligibility to Dependents‟ Education Assistance is granted and is effective from [date].




Example Rating Decision for Service-Connected Death Confirmed and
Continued

INTRODUCTION

VA‟s records reflect that [full name] was a Veteran who served in the [military branch] from [date] to [date]. The Secretary of the Department of Veterans Affairs (VA) has established that Ischemic Heart Disease, Parkinson‟s Disease, Hairy Cell Leukemia and other Chronic B-cell Leukemias warrant presumptive service connection based on the association between exposure to herbicides used in the Republic of Vietnam and the subsequent development of these conditions.

VA‟s records indicate that you previously filed a claim for your [DIC claimant‟s relationship]‟s death as a result of [insert name of new presumptive condition] and were subsequently denied. A special review of the Veteran‟s claims file was mandated by federal court order in Nehmer v. Department of Veterans Affairs. Based on our review of the evidence listed below, we have made the following decision(s) in this case.

DECISION

1. The prior decision regarding service connection for cause of death is confirmed and no change is warranted for that prior denial under the provisions of the court‟s orders in Nehmer.

EVIDENCE

- DD Form 214
-VA Form 21-534, Application for Dependency and Indemnity Compensation, received on [date]
- VA Form 21-530, Application for Burial Benefits was received on [insert date]
- Death certificate
- Medical Evidence [Medical Evidence may include, but is not limited to 1) diagnosis; 2) date of diagnosis; 3) date of death; 4) cause of death; and autopsy report.]
- Decision dated [insert date of decision] denied service connection for cause of death

REASONS FOR DECISION

Pursuant to the authority granted by the Agent Orange Act of 1991, VA may determine that a presumption of service connection based on exposure to herbicides used in Vietnam is warranted for conditions that VA has found to have a statistically significant association with such exposure. As such, VA has determined that a statistically significant association exists between exposure to herbicides and subsequent development of the following conditions: chloracne, non-Hodgkin‟s lymphoma, soft tissue sarcoma, Hodgkin‟s disease, porphyria cutanea tarda (PCT), multiple myeloma, acute and subacute peripheral neuropathy, prostate cancer, cancers of the lung, bronchus, larynx, trachea, Type II (adult-onset) diabetes mellitus, chronic lymphocytic leukemia, AL amyloidosis, Parkinson‟s disease, ischemic heart disease, and B-cell leukemias,
such as hairy cell leukemia.

For purposes of this review, Vietnam Veterans had in-country service in the Republic of Vietnam.

1. Service connection for the cause of the Veteran‟s death, for purposes of entitlement to retroactive benefits.

VA has confirmed that the Veteran had in-country service in the Republic of Vietnam based on [insert evidence here].

During the lifetime of your [DIC claimant‟s relationship-husband, son, spouse, father, etc], [he/she] did not submit a claim for benefits based on [insert disability shown as cause of death].

On [date] a claim for service connected death benefits as a result of his/her death was received. The date of death is [insert date] and the cause of death was recorded as [cause of death, including contributory causes, if relevant]. A rating dated [insert date], denied your DIC claim.

The denial of your claim for service-connected death is confirmed and no change is warranted under the provisions of the court‟s orders in Nehmer.




Example Rating Decision for Service-Connected Death Grant and Retroactive Compensation

INTRODUCTION

VA‟s records reflect that [insert full name of Veteran] was a Veteran who served in the [insert name of military branch in which Veteran served] from [insert date service began] to [insert date of discharge]. The Secretary of the Department of Veterans Affairs (VA) has established that Ischemic Heart Disease, Parkinson‟s Disease, Hairy Cell Leukemia and other Chronic B-cell Leukemias warrant presumptive service connection based on the association between exposure to herbicides used in the Republic of Vietnam and the subsequent development of these conditions.

VA‟s records indicate that your [insert DIC claimant‟s relationship, i.e.- husband, father, etc] previously filed a claim for [insert name of new presumptive disability] and was subsequently denied. A special review of your [survivor‟s relationship]‟s claims file was mandated by federal court order in Nehmer v. Department of Veterans Administration. Based on our review of the evidence listed below, we have made the following decision(s) in this case.

DECISION

1. Service connection for [insert presumptive disability] associated with herbicide exposure is granted with a [insert percentage] percent evaluation, effective [insert date of receipt of the Veteran‟s initial claim for service connection for this condition].
2. Service connection for the cause of death is granted.
3. Basic eligibility to Dependents‟ Educational Assistance is established.

EVIDENCE

- DD Form 214
- VA Form 21-526, Veteran‟s Application for Compensation or Pension, received on [insert date of receipt of the Veteran‟s original claim for service connection for this condition].
- Other information that creates a claim (informal, inferred, implied or a potential claim)
- VA examination dated [insert date of exam]
- Other Medical Evidence (private, SSA, treatment reports)
- Service Treatment Records
- Decision dated [insert date of decision], denied service connection for [insert presumptive disability]
- VA Form 21-534, Application for Dependency and Indemnity Compensation, received on [insert date claim received]
- Death certificate
- VA Form 21-530, Application for Burial Benefits received on [insert date claim received]
- Decision dated [insert date of rating], denied service connected death for [insert presumptive disability]

REASONS FOR DECISION

Pursuant to the authority granted by the Agent Orange Act of 1991, VA may determine that a presumption of service connection based on exposure to herbicides used in Vietnam is warranted for conditions that VA has found to have a statistically significant association with such exposure. As such, VA has determined that a statistically significant association exists between exposure to herbicides and subsequent development of the following conditions: chloracne, non-Hodgkin‟s lymphoma, soft tissue sarcoma, Hodgkin‟s disease, porphyria cutanea tarda (PCT), multiple myeloma, acute and subacute peripheral neuropathy, prostate cancer, cancers of the lung, bronchus, larynx, trachea, Type II (adult-onset) diabetes mellitus, chronic lymphocytic leukemia, AL amyloidosis, Parkinson‟s disease, ischemic heart disease, and B-cell leukemias, such as hairy cell leukemia.

For purposes of this review, Vietnam Veterans had in-country service in the Republic of Vietnam.

1. Service connection for [insert presumptive disability], for purposes of entitlement to retroactive benefits.

VA has confirmed that the Veteran had in-country service in the Republic of Vietnam based on [insert evidence here].

Medical evidence in the record indicates a diagnosis of [insert presumptive disability] on [date]. The Veteran claimed service connection for [insert presumptive disability] on [insert date of claim]. Service connection for [insert presumptive disability] was denied by a rating decision dated, [insert date of decision] because [insert presumptive disability] was not incurred or aggravated during military service, nor was it present to a degree of 10 percent within one year of the Veteran‟s discharge from active duty.

Subsequently, [insert presumptive disability] was added recently to the list of disabilities recognized as being related to herbicide exposure. As such, service connection for [insert presumptive disability] is now granted because it is presumptively related to the Veteran‟s military service. The effective date of service connection for [insert presumptive disability] is [insert date of receipt of claim], the date the Veteran‟s original claim for service connection for [insert presumptive disability] was received.

[Insert paragraph for rating of the new presumptive condition and include an explanation of the percentage assigned for the condition, as well as the requirements for achieving the next higher percentage level.]

2. Service connection for the cause of the Veteran‟s death, for purposes of entitlement to retroactive benefits.

On [date] the Veteran died and the cause of death was recorded as [cause of death, including contributory causes, if relevant]. On [date] a claim for service connected death benefits as a result of the Veteran‟s death was filed. On [date], this claim was denied because, as was found in the previous denial of the Veteran‟s claim, [insert presumptive disability] was not found to have been incurred or aggravated during military service, nor was it present to a degree of 10 percent within one year of the Veteran‟s discharge from active duty.

Subsequently, [insert presumptive disability] was added recently to the list of disabilities recognized as being related to herbicide exposure. As such, service connection for the cause of the Veteran‟s death is now granted, because it is presumptively related to the Veteran‟s military service. The effective date of service connection for the Veteran‟s death is [insert date of receipt of DIC claim], the date your original claim for service connection for your [survivor‟s relationship] death was received.

3. Eligibility for Dependents‟ Educational Assistance under 38 U.S.C. Chapter 35.

Eligibility to Dependents‟ Educational Assistance is derived from a Veteran who has a permanent and total service-connected disability; or a permanent and total disability was in existence at the time of death; or the Veteran died as a result of a service-connected disability. Also, eligibility exists for a serviceperson who died in service. Basic eligibility to Dependents‟ Education Assistance is granted and is effective from [date].




************************
Example Memorandum for the Record for No Vietnam Service

NOTE TO VBN USERS: THIS IS IN A BOX FORM BUT I’M UNABLE TO MAKE ONE.

NEHMER
MEMORANDUM FOR THE RECORD
Department of Veterans
Affairs
POA


Date of
Memorandum



Veteran’s Name

Resource Center

VA Employee Name

VA File Number



ISSUE: No Vietnam Service

A systematic review of the Veteran‟s claims folder has been conducted in accordance with Nehmer v. U.S. Department of Veterans Affairs, which requires the payment of retroactive benefits to certain Nehmer class members. This case was identified as a potential Nehmer-class case based on the addition of Ischemic Heart Disease, Parkinson‟s Disease, and B-cell/Hairy cell leukemias to the list of diseases presumptively associated with exposure to certain herbicide agents. Entitlement to potential retroactive benefits applies to all cases wherein VA received a claim for benefits, or wherein VA denied benefits, on or after September 25, 1985, and before the date VA publishes the final regulation adding the new disabilities to the list of diseases presumptively associated with herbicide exposure in Vietnam.

VA has confirmed that the Veteran did not have service in the Republic of Vietnam as defined by law. In the absence of any conclusive evidence that the Veteran served in the Republic of Vietnam, or was otherwise exposed to herbicides used in the Republic of Vietnam during military service, further review under Nehmer is not required. If VA receives any documentation that confirms that the Veteran did perform duty in the Republic of Vietnam, then entitlement to benefits under the Nehmer court order will be reconsidered.

[User Input - A detailed explanation regarding why the individual is not a class member is required. The explanation must be sufficient in detail for the reviewer to undertake a clear analysis as to why the case does not qualify for Nehmer readjudication.]


Name (Rating Specialist/DRO)

Name (Rating Specialist/DRO)




****************************
Example Memorandum for the Record for No Diagnosis

NOTE TO VBN USERS: THIS IS IN A BOX FORM BUT I’M UNABLE TO MAKE ONE.


NEHMER
MEMORANDUM FOR THE RECORD
Department of Veterans
Affairs
POA


Date of
Memorandum



Veteran’s Name

Resource Center

VA Employee Name

VA File Number



ISSUE: No Diagnosis

A systematic review of the Veteran‟s claims folder has been conducted in accordance with Nehmer v. U.S. Department of Veterans Affairs, which requires the payment of retroactive benefits to certain Nehmer class members. This case was identified as a potential Nehmer-class case based on the addition of Ischemic Heart Disease, Parkinson‟s Disease, and B-cell/Hairy cell leukemias to the list of diseases presumptively associated with exposure to certain herbicide agents. Entitlement to potential retroactive benefits applies to all cases wherein VA received a claim for benefits, or wherein VA denied benefits, on or after September 25, 1985, and before the date VA publishes the final regulation adding the new disabilities to the list of diseases presumptively associated with herbicide exposure in Vietnam.

VA has confirmed that the Veteran was not diagnosed with one of the Nehmer-related disabilities and that no evidence indicating the existence of such disability is present in the Veteran‟s VA claim file between September 25, 1985, and the date VA published the final regulation adding the new disabilities to the list of diseases presumptively associated with herbicide exposure in Vietnam. In the absence of such evidence, further review under Nehmer is not required. If VA receives any documentation that confirms that the Veteran was diagnosed with a Nehmer-related disability, then entitlement to benefits under the Nehmer court order will be reconsidered.

[User Input - A detailed explanation regarding why the individual is not a class member is required. The explanation must be sufficient in detail for the reviewer to undertake a clear analysis as to why the case does not qualify for Nehmer readjudication.]


Name (Rating Specialist/DRO)

Name (Rating Specialist/DRO)



*****************************
Example Memorandum for the Record for No Claim

NOTE TO VBN USERS: THIS IS IN A BOX FORM BUT I’M UNABLE TO MAKE ONE.



NEHMER
MEMORANDUM FOR THE RECORD
Department of Veterans
Affairs
POA


Date of
Memorandum



Veteran’s Name

Resource Center

VA Employee Name

VA File Number



ISSUE: No Prior Claim

A systematic review of the Veteran‟s claims folder has been conducted in accordance with Nehmer v. U.S. Department of Veterans Affairs, which requires the payment of retroactive benefits to certain Nehmer class members. This case was identified as a potential Nehmer-class case based on the addition of Ischemic Heart Disease, Parkinson‟s Disease, and B-cell/Hairy cell leukemias to the list of diseases presumptively associated with exposure to certain herbicide agents. Entitlement to potential retroactive benefits applies to all cases wherein VA received a claim for benefits, or wherein VA denied benefits, on or after September 25, 1985, and before the date VA publishes the final regulation adding the new disabilities to the list of diseases presumptively associated with herbicide exposure in Vietnam.

VA has confirmed that the Veteran/Widow did not file a claim for benefits nor was denied a claim for benefits, as defined under Nehmer between September 25, 1985, and the date VA published the final regulation adding the new disabilities to the list of diseases presumptively associated with herbicide exposure in Vietnam. In the absence of such evidence, further review under Nehmer is not required.

[User Input - A detailed explanation regarding why the individual is not a class member is required. The explanation must be sufficient in detail for the reviewer to undertake a clear analysis as to why the case does not qualify for Nehmer readjudication.]


Name (Rating Specialist/DRO)

Name (Rating Specialist/DRO)






Appendix 8 – VA Examination Templates

The following pages provide approved and abbreviated VA Examination (VAE)
worksheets for your use.


**************************
Ischemic Heart Disease VAE Template


Ischemic Heart Disease (IHD)
Disability Benefits Questionnaire

The patient/Veteran has applied to the U. S. Department of Veterans Affairs for disability
benefits. Please complete this Questionnaire, which we need for review of the application.

1. Diagnosis: Does the Veteran have ischemic heart disease (IHD)? Yes No
(If no, please skip to the signature section.)
Diagnosis: ___________________________________ Date of diagnosis: ____________________
NOTE: IHD includes but is not limited to acute, sub-acute and old myocardial infarction;
atherosclerotic cardiovascular disease including coronary artery disease, including coronary
spasm and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina. IHD does
not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral
vascular disease or stroke.

2. Medical History:
Does the Veteran‟s treatment plan include taking continuous medication for the diagnosed
condition? Yes No List medications: _________________________________________
Is there a history of:
Myocardial infarction Yes No Treatment facility/date: ___________________
Coronary bypass surgery Yes No Treatment facility/date: ___________________
Heart transplant Yes No Treatment facility/date: ___________________
Implanted cardiac pacemaker Yes No Treatment facility/date: ___________________

3. Congestive Heart Failure (CHF):
Does the Veteran have chronic CHF? Yes No
More than one episode of acute CHF in the past year? Yes No
Treatment facility/date of most recent episode of CHF: ___________________________________

4. Cardiac Functional Assessment:

a. Level of METs the Veteran can perform as shown by diagnostic exercise testing: ___________

b. If METs testing was not completed because it is not required as part of Veteran’s
treatment plan, complete the following METs test based on the Veteran’s responses:

Lowest level of activity at which the Veteran reports symptoms (check all symptoms that
apply)
dyspnea fatigue angina dizziness syncope
(1-3 METs) This METs level has been found to be consistent with activities such as
eating, dressing, taking a shower, slow walking (2 mph) for 1-2 blocks

(>3-5 METs) This METs level has been found to be consistent with activities such as
light yard work (weeding), mowing lawn (power mower), brisk walking
(4 mph)
(>5-7 METs) This METs level has been found to be consistent with activities such as
golfing (without cart), mowing lawn (push mower), heavy yard work
(digging)
(>7-10 METs) This METs level has been found to be consistent with activities such as
climbing stairs quickly, moderate bicycling, sawing wood, jogging (6
mph)
The Veteran denies experiencing above symptoms with any level of physical activity

5. Diagnostic Testing:
Evidence of cardiac hypertrophy? Yes No
Evidence of cardiac dilation? Yes No



Based on: Physical exam Echocardiogram EKG CXR
Left ventricular ejection fraction (LVEF), if known: ______________________________________
If LVEF testing is not of record, but available medical information sufficiently reflects the
severity of the Veteran’s cardiovascular condition, LVEF testing is not required.
6. Remarks (including impact of IHD condition on ability to work): _____________________________
Physician signature: __________________________________________ Date: __________________
Physician printed name: _______________________________________ Phone: ________________
Medical license #: _____________ Physician address: ______________________________________

NOTE: VA may request additional medical information, including additional examinations if
necessary to complete VA‟s review of the Veteran‟s application.
FOR INTERNAL VA USE ONLY




******************************
Parkinson‟s Disease VAE Template


Parkinson’s Disease
Disability Benefits Questionnaire
Name of patient/Veteran: _____________________________________SSN: ____________________
The patient/Veteran has applied to the U. S. Department of Veterans Affairs for disability
benefits. Please complete this Questionnaire, which we need for review of the application.

1. Diagnosis: Does the Veteran now have or has he/she ever been diagnosed with
Parkinson‟s disease? Yes No Date of diagnosis: ______________________
(If no, please skip to the signature section.)

2. Motor manifestations due to Parkinson’s or its treatment: (check all that apply)

Stooped Posture
None Mild Moderate Severe
Balance impairment
None Mild Moderate Severe
Tremor (characteristic hand shaking, “pill-rolling”)
None Mild Moderate Severe
Bradykinesia or slowed motion (difficulty initiating movement, “freezing,” short shuffling steps)
None Mild Moderate Severe
Loss of automatic movements (such as blinking, leading to fixed gaze; typical Parkinson‟s
facies)
None Mild Moderate Severe
Speech changes (monotone, slurring words, soft or rapid speech)
None Mild Moderate Severe
Muscle rigidity and stiffness
None Mild Moderate Severe
Extremities functionally affected by Parkinson‟s disease:
Right upper Left upper Right lower Left lower

3. Mental manifestations due to Parkinson’s or its treatment:

Depression
None Mild Moderate Severe
Cognitive impairment or dementia
None Mild Moderate Severe

4. Additional manifestations/complications due to Parkinson’s or its treatment:

Loss of sense of smell
None Partial Complete
Sleep disturbance (insomnia or daytime “sleep attacks”)
None Mild Moderate Severe
Difficulty chewing/swallowing
None Mild Moderate Severe
Urinary problems (incontinence or urinary retention)
None Or, if absorbent material required due to incontinence, specify pads/day:
0 1 2-4 > 4 Or, if applicable, use of
appliance
Constipation (due to slowing of GI tract or secondary to Parkinson‟s medications)
None Mild Moderate Severe
Sexual dysfunction
None Mild Moderate Severe (Erectile dysfunction precludes
intercourse)
Other manifestations/complications: __________________________________________________

5. Financial responsibility: In your judgment, is the Veteran able to manage his/her benefit
payments in his/her own best interest, or able to direct someone else to do so? Yes No

6. Remarks (including impact of Parkinson‟s on ability to work): _______________________________
Physician signature: __________________________________________ Date: __________________
Physician printed name: _______________________________________ Phone: ________________
Medical license #: _____________ Physician address: ______________________________________

NOTE: VA may request additional medical information, including additional examinations if
necessary to complete VA‟s review of the Veteran‟s application.
FOR INTERNAL VA USE ONLY




****************************
B-cell Leukemia VAE Template


Hairy Cell and Other B-Cell Leukemias
Disability Benefits Questionnaire
Name of patient/Veteran: _____________________________________SSN: ____________________
The patient/Veteran has applied to the U. S. Department of Veterans Affairs for disability
benefits. Please complete this Questionnaire, which we need for our review of the
application.


1. Diagnosis: Does the Veteran now have or has he/she ever been diagnosed with hairy cell
leukemia or any other B-cell leukemia? Yes No
(If no, please skip to the signature section.)
Diagnosis (type of leukemia): _____________________________ Date of diagnosis: ______________

2. Status of disease: Active
Remission

3. Treatment: The Veteran is currently undergoing treatment for this leukemia with surgical,
radiation, immunotherapy, antineoplastic chemotherapy and/or other therapeutic
procedures.
The Veteran has completed treatment for this leukemia.
Date of discontinuance of treatment: _________________________________

4. Residual complications:
If six months or more have passed since discontinuance of leukemia treatment, does the
Veteran currently have any residual complications? Yes No
(If yes, please complete area below)
Residual complications requiring transfusion of platelets or red cells:
At least once every 6 weeks
At least once every 3 months
At least once per year but less than once every 3 months
Residual complications causing infections recurring:
At least once every 6 weeks
At least once every 3 months
At least once per year but less than once every 3 months
Residual complications related to anemia:
Bone marrow transplant due to aplastic anemia
Asymptomatic anemia
Symptomatic anemia (check signs and symptoms that apply)
weakness easy fatigability headaches
lightheadedness shortness of breath dyspnea on mild
exertion
cardiomegaly tachycardia syncope
high output congestive heart failure dyspnea at rest

Other signs and/or symptoms: ___________________________________
Requires continuous medication for control of anemia: Yes No
If anemia is present, provide most recent hemoglobin level (gm/100ml): _____ Date: ______

If any other residual complications are present, please specify: ________________________

5. Remarks (including impact of leukemia on ability to work): _________________________________
Physician signature: __________________________________________ Date: __________________
Physician printed name: _______________________________________ Phone: ________________
Medical license #: _____________ Physician address: ______________________________________
NOTE: VA may request additional medical information, including additional examinations if
necessary to complete VA‟s review of the Veteran‟s application.

FOR INTERNAL VA USE ONLY




**************************
Appendix 9 – Rating Schedule

For a complete discussion of the cardiovascular evaluation criteria in effect prior
to January 12, 1998, as well as a discussion of the old and new side-by-side
comparison go directly to:

http://vbaw.vba.va.gov/bl...t4/TUTORIAL/Cv_indx.htm.





*****************************
Appendix 10 – Example Notification Letters

The following pages provide example Nehmer notification letters for your
reference.


********************
Example Letter for Live Veteran Service-Connected Grant




XXXX XXXX XXXXX
XXXX XXXXXXX XX
XXXXXX, XX XXXXX




Dear XXXXXXX:

The Secretary of the Department of Veterans Affairs (VA) recently established that ischemic heart disease, Parkinson‟s disease, and hairy cell and other chronic B-cell leukemias warrant presumptive service connection based on the association between exposure to herbicides used in the Republic of Vietnam and the subsequent development of these conditions. Our records indicate that you previously filed a claim for [insert name of new presumptive condition].

We have conducted a special review of your claims file mandated by the United States District Court‟s orders in Nehmer v. U.S. Department of Veterans Affairs.

This letter tells you about your award amount and payment start date and what we decided. It includes a copy of our rating decision that gives the evidence used and reasons for our decision. We have also included information about additional benefits, what to do if you disagree with our decision, and who to contact if you have questions or need assistance.

Your Estimated Retroactive Amount

The estimated amount of retroactive benefits is $[amount]. These retroactive benefits are a result of the United States District Court‟s order in Nehmer v. U.S. Department of Veterans Affairs. Please see Your Award Amount and Payment Start Date.

Your Award Amount and Payment Start Date
[Use standard PCGL paragraphs and tables. Be sure to include dependency information. Insert all dependent’s names.]

You Can Expect Payment
[Use standard PCGL paragraphs]

We Have Withheld Benefits
[Use standard PCGL paragraphs, if applicable]
In Reply Refer To:
XXXXXXXX
CSS XXX XX XXXX
XXXXX, Xxxx Xxxx






What We Decided
We granted service connection for [insert name of new presumptive here] for the purposes of entitlement to retroactive benefits, effective [date].
[Use standard PCGL paragraphs, if applicable]

Do You Have Dependents?
[Use standard PCGL paragraphs – include VA Form 21-686c and 21-674 for students in attachments]

How Do You Start Direct Deposit?
[Use appropriate PCGL paragraph]

Are You Entitled to Additional Benefits?
[Use standard Additional Benefits PCGL paragraphs, if applicable. Additional benefit paragraphs include insurance, medical care, vocational rehabilitation and employment benefits, commissary, etc.]

What You Should Do If You Disagree With Our Decision
[Use standard PCGL paragraph]

If You Have Questions or Need Assistance
[Use standard PCGL paragraphs]

[POA - Use standard PCGL paragraphs]

Sincerely yours,

XXXXX
XXXXX
[Title]

Enclosure(s): Rating Decision
[Include all Enclosures necessary]
VA Form 4107




**********************
Example Letter for Live Veteran Service-Connected Denial




XXXX XXXX XXXXX
XXXX XXXXXXX XX
XXXXXX, XX XXXXX




Dear XXXXXXX:

The Secretary of the Department of Veterans Affairs (VA) recently established that ischemic heart disease, Parkinson‟s disease, and hairy cell and other chronic B-cell leukemias warrant presumptive service connection based on the association between exposure to herbicides used in the Republic of Vietnam and the subsequent development of these conditions. Our records indicate that you previously filed a claim for [insert name of new presumptive condition].

We have conducted a special review of your claims file mandated by the United States District Court‟s orders in Nehmer v. U.S. Department of Veterans Affairs.

This letter tells you what we decided. It includes a copy of our rating decision that gives the evidence used and reasons for our decision. We have also included information about what to do if you disagree with our decision, and who to contact if you have questions or need assistance.

What We Decided
[Use standard PCGL paragraphs]

What You Should Do If You Disagree With Our Decision
[Use standard PCGL paragraphs]

In Reply Refer To:
XXXXXXXX
CSS XXX XX XXXX
XXXXX, Xxxx Xxxx




84
If You Have Questions or Need Assistance
[Use standard PCGL paragraphs]

[POA - Use standard PCGL paragraphs]

Sincerely yours,

XXXXX
XXXXX
[Title]

Enclosure(s): Rating Decision
[Appropriate attachments]



****************************
Example Letter for DIC Grant




XXXX XXXX XXXXX
XXXX XXXXXXX XX
XXXXXX, XX XXXXX




Dear XXXXXXX:

The Secretary of the Department of Veterans Affairs (VA) recently established that ischemic heart disease, Parkinson‟s disease, and hairy cell and other chronic B-cell leukemias warrant presumptive service connection based on the association between exposure to herbicides used in the Republic of Vietnam and the subsequent development of these conditions. Our records indicate that [Name of Veteran] previously filed a claim for [insert name of new presumptive condition].

We have conducted a special review of your [DIC claimant’s relationship]‟s claims file mandated by the United States District Court‟s orders in Nehmer v. U.S. Department of Veterans Affairs.

This letter tells you about your award amount and payment start date and what we decided. It includes a copy of our rating decision that gives the evidence used and reasons for our decision. We have also included information about additional benefits, what to do if you disagree with our decision, and who to contact if you have questions or need assistance.

Your Estimated Retroactive Amount
The estimated amount of retroactive benefits based on [Veteran’s name]‟s claim for service connected compensation is $[amount]. The estimated amount of DIC retroactive benefits is $[amount]. [Make necessary adjustments to the paragraph to address the benefit payment].

These retroactive benefits are a result of the United States District Court‟s order in Nehmer v. Nehmer v. U.S. Department of Veterans Affairs. Please see Your Award Amount and Payment Start Date.

Your Award Amount and Payment Start Date
[Use standard PCGL paragraphs and tables. Insert name(s) for additional dependents. Be sure to include dependency information.]

In Reply Refer To:
XXXXXXXX
XSS XXX XX XXXX
XXXXX, Xxxx Xxxx




You Can Expect Payment
[Use standard PCGL paragraphs]

We Have Withheld Benefits
[Use standard PCGL paragraphs]

What We Decided
We granted service connection for [insert name of new presumptive here] for the purposes of entitlement to retroactive benefits, effective [date] until [date of death].

[Use all other necessary standard PCGL paragraphs]

How Do You Start Direct Deposit?
[Use standard PCGL paragraphs]

What Additional Information or Evidence Do We Still Need From You?
[Use standard PCGL paragraphs]

When and Where to Send the Information or Evidence
[Use standard PCGL paragraphs]

Are You Entitled to Additional Benefits?
[Use standard PCGL paragraphs]

What You Should Do If You Disagree With Our Decision
[Use standard PCGL paragraphs]

If You Have Questions or Need Assistance
[Use standard PCGL paragraphs]

[POA - Use standard PCGL paragraphs]

Sincerely yours,

XXXXX
XXXXX
[Title]

Enclosure(s): Rating Decision
[All Necessary Enclosures]



*****************************
Example Letter for DIC Denial




XXXX XXXX XXXXX
XXXX XXXXXXX XX
XXXXXX, XX XXXXX




Dear XXXXXXX:

The Secretary of the Department of Veterans Affairs (VA) recently established that ischemic heart disease, Parkinson‟s disease, and hairy cell and other chronic B-cell leukemias warrant presumptive service connection based on the association between exposure to herbicides used in the Republic of Vietnam and the subsequent development of these conditions. [If the Veteran filed a claim insert:] Our records indicate that [Name of Veteran] previously filed a claim for [insert name of new presumptive condition].

Our records indicate that you applied for dependency and indemnity compensation (DIC) benefits on [date].

We have conducted a special review of your [DIC claimant’s relationship]‟s claims file mandated by the United States District Court‟s orders in Nehmer v. U.S. Department of Veterans Affairs.

Every effort was made in considering your claim. This notification tells you what we decided, how we made our decision and what evidence we used to make our decision. We have also included information on what to do if you disagree with our decision and who to contact if you have questions or need assistance.

What We Decided
[Use standard PCGL paragraphs]

What You Should Do If You Disagree With Our Decision
[Use standard PCGL paragraphs]

In Reply Refer To:
XXXXXXXX
XSS XXX XX XXXX
XXXXX, Xxxx Xxxx




If You Have Questions or Need Assistance
[Use standard PCGL paragraphs]

[POA - Use standard PCGL paragraphs]

Sincerely yours,

XXXXX
XXXXX
[Title]

Enclosure(s): Rating Decision
VA Form 4107



****************************
Example Letter for Estate Grant




XXXX XXXX XXXXX
XXXX XXXXXXX XX
XXXXXX, XX XXXXX



Dear XXXXXXX:

The Secretary of the Department of Veteran Affairs (VA) has recently established that ischemic heart disease, Parkinson‟s disease, and hairy cell and other chronic B-cell leukemias warrant presumptive service connection based on the association between exposure to herbicides used in the Republic of Vietnam and the subsequent development of these conditions. Our records indicate that [Name of Veteran] previously filed a claim for [insert name of new presumptive condition] during his lifetime.

We have conducted a special review of the Veteran‟s claim file as mandated by the United States District Court‟s orders in Nehmer v. U.S. Department of Veterans Affairs. We have determined that the Veteran‟s Estate is entitled to retroactive compensation based on being a recognized class member as outlined in the above court order.

This letter tells you about the award amount and payment start date and what we decided. It includes a copy of our rating decision that gives the evidence used and reasons for our decision. We have also included information of what to do if you disagree with our decision, and who to contact if you have questions or need assistance.

Your Estimated Retroactive Amount

The estimated amount of retroactive benefits is $[amount]. This estimated payment was calculated using the new monthly entitlement amount minus any prior payments that were made along with any prior withholdings (if applicable) from the effective date(s) shown in the table below. These retroactive benefits are a result of the United States District Court‟s order in Nehmer v. U.S. Department of Veterans Affairs. Please see the Award Amount and Payment Start Date.

Award Amount and Payment Start Date
[Use standard PCGL paragraphs and tables.]

In Reply Refer To:
XXXXXXXX
XSS XXX XX XXXX
XXXXX, Xxxx Xxxx



This retroactive payment is being made to the Estate of the Veteran based on being a recognized class member.

You Can Expect Payment
[Use standard PCGL paragraphs]

What You Should Do If You Disagree With Our Decision
[Use standard PCGL paragraphs]

If You Have Questions or Need Assistance
[Use standard PCGL paragraphs]

[POA - Use standard PCGL paragraphs]

Sincerely yours,

XXXXX
XXXXX
[Title]

Enclosure(s): Rating Decision
[Enclosures vary]
VA Form 4107




*********************************
Example Letter for Child or Parent Grant




XXXX XXXX XXXXX
XXXX XXXXXXX XX
XXXXXX, XX XXXXX



Dear XXXXXXX:

The Secretary of the Department of Veteran Affairs has recently established that ischemic heart disease, Parkinson‟s disease, and hairy cell and other chronic B- cell leukemias warrant presumptive service connection based on the association between exposure to herbicides used in the Republic of Vietnam and the subsequent development of these conditions. Our records indicate [Name of Veteran] previously filed a claim for [insert name of new presumptive condition] during his lifetime.

We have conducted a special review of the Veteran‟s claim file as mandated by the United States District Court‟s orders in Nehmer v. U.S. Department of Veterans Affairs. We have determined that you are entitled to retroactive compensation based on being a recognized class member as outlined in the above court order.

This letter tells you about your award amount and payment start date and what we decided. It includes a copy of our rating decision that gives the evidence used and reasons for our decision. We have also included information of what to do if you disagree with our decision, and who to contact if you have questions or need assistance.

Your Estimated Retroactive Amount

The estimated amount of your retroactive benefits is $[amount]. This estimated payment was calculated using the new monthly entitlement amount minus any prior payments that were made along with any prior withholdings (if applicable) from the effective date(s) shown in the table below. These retroactive benefits are a result of the United States District Court‟s order in Nehmer v. U.S. Department of Veterans Affairs. Please see Your Award Amount and Payment Start Date.

Your Award Amount and Payment Start Date
[Use standard PCGL paragraphs and tables] [Modify for one time only
payment]
In Reply Refer To:
XXXXXXXX
XSS XXX XX XXXX
XXXXX, Xxxx Xxxx


We're paying you as a recognized class member of the above named Veteran.

You Can Expect Payment
[Use standard PCGL paragraphs]

What You Should Do If You Disagree With Our Decision
[Use standard PCGL paragraphs]

If You Have Questions or Need Assistance
[Use standard PCGL paragraphs]

[POA - Use standard PCGL paragraphs]

Sincerely yours,

XXXXX
XXXXX
[Title]

Enclosure(s): Rating Decision
[Enclosures vary]
VA Form 4107



***********************

Appendix 11 – The Cardiovascular System in 38 C.F.R § 4.100 (Prior to
January 12, 1998)

Sec. 4.100 Necessity for complete diagnosis.

The common types of disease of the heart are those of rheumatic, syphilitic, arteriosclerotic, hypertensive, or hyperthyroid etiology. Determinations of relationship to service and evaluation, in the case of disability due to disease of the heart, require accurate identification of the disease, as an active or residual condition, with the complete required classification of etiology, structural lesions, manifestations, and capacity for work. Many common diagnoses following the first World War do not represent disease entities. ``Chronic myocarditis,'' for example, except as a continuing inflammation following an identified acute myocarditis due to rheumatic fever or other infectious agent, is not a satisfactory diagnosis; there should be further identification of the etiological agent and structural lesions, prior to rating action. The very common diagnosis ``mitral insufficiency'' is likewise unsatisfactory as reflecting organic valvular disease in the absence of associated mitral stenosis, definite cardiac enlargement without other causes, or history of rheumatic manifestations. An acceptable diagnosis
cannot be based upon the presence of systolic murmurs alone. Tachycardia and bradycardia, the various arrythmias, and cardiac hypertrophy or dilatation, do not represent generally acceptable diagnoses, and elevation or depression of the systolic or diastolic pressure is usually a manifestation of disease, rather than a clinical entity.

Sec. 4.101 Rheumatic heart disease.

Rheumatic fever is an acute infectious disease, affecting the structures about the joints (though without permanent bone damage) and, frequently, the endocardium. Children are as a rule affected, usually before the age of 20 years. Seldom is the initial attack after 25 years. The disease tends to recur, and serious heart trouble may follow the first or a subsequent attack. With acute rheumatic fever in service, perhaps without manifest damage to the heart, a subsequent recurrence of the infection, should be accepted as service connected. With even a few days service, service connection may be given for an acute rheumatic fever and any cardiac residuals. On the other hand, a mitral insufficiency without a history of rheumatic fever, chorea, or tonsillitis, or definite complication in service, must be considered as functional. Aortic insufficiency with a history of rheumatic fever and manifestation within approximately 15 years from the date of syphilitic infection, if any, should generally be considered rheumatic and always so when there is associated mitral or aortic stenosis. With a history of rheumatic fever in service, an aortic insufficiency manifest some years later without other cause shown may be service connected. The subsequent progress of rheumatic heart disease, and the effect of superimposed arteriosclerotic or hypertensive changes cannot usually be satisfactorily disassociated or separated so as to permit differential service connection. It is for this reason, in part, that great insistence is placed upon ascertainment of the service-connected disease as a true pathological entity. A subsequent change of diagnosis from one of an organic condition to one reflecting the effect of psychic or nervous factors casts doubt on the original diagnosis, but unless the correction is promptly made continuance of the service connection and of the evaluation under the new diagnosis is required. Such a change does not reflect an improvement of the physical condition.

Sec. 4.102 Varicose veins and phlebitis.

With severe varicose veins, tests to determine impairment of deep return circulation are essential, as the superficial varicosities may be caused by the impairment of deep return circulation, or there may be phlebitis as a complication of varicose ulcers. With phlebitis, or impairment of deep return circulation, the appropriate higher rating should be applied.

Sec. 4.103 [Reserved]

Sec. 4.104 Schedule of ratings--cardiovascular system.

Diseases of the Heart Rating
7000 Rheumatic heart disease:
As active disease and, with ascertainable cardiac
manifestation, for a period of 6 months..................………………………..100
Inactive:
Definite enlargement of the heart confirmed by roentgenogram
and clinically; dyspnea on slight exertion; rales,
pretibial pitting at end of day or other definite signs of
beginning congestive failure; more than sedentary
employment is precluded..................................…………………………..100
The heart definitely enlarged; severe dyspnea on exertion,
elevation of systolic blood pressure, or such arrhythmias
as paroxysmal auricular fibrillation or flutter or
paroxysmal tachycardia; more than light manual labor is
precluded................................................…………………………………...60
From the termination of an established service episode of
rheumatic fever, or its subsequent recurrence, with cardiac
manifestations, during the episode or recurrence, for 3
years, or diastolic murmur with characteristic EKG
manifestations or definitely enlarged heart..............………………………30
With identifiable valvular lesion, slight, if any dyspnea,
the heart not enlarged; following established active
rheumatic heart disease.................................……………………………..10
7001 Endocarditis, bacterial, subacute.
7002 Pericarditis, bacterial or rheumatic, acute.
Rate as rheumatic heart disease.
7003 Adhesions, pericardial:
Extensive, obliterating the sac, with congestive heart failure 100
Rate lesser conditions as rheumatic heart disease, inactive.
7004 Syphilitic heart disease:
Rate as rheumatic heart disease, inactive.
7005 Arteriosclerotic heart disease:
During and for 6 months following acute illness from coronary
occlusion or thrombosis, with circulatory shock, etc......………………….100
After 6 months, with chronic residual findings of congestive
heart failure or angina on moderate exertion or more than
sedentary employment precluded............................……………………...100
Following typical history of acute coronary occlusion or
thrombosis as above, or with history of substantiated
repeated anginal attacks, more than light manual labor not
feasible...................................................…………………………………….60
Following typical coronary occlusion or thrombosis, or with
history of substantiated anginal attack, ordinary manual
labor feasible.............................................………………………………….30
7006 Myocardium, infarction of, due to thrombosis or embolism.
Rate as arteriosclerotic heart disease.
7007 Hypertensive heart disease:
With definite signs of congestive failure, more than sedentary
employment precluded......................................…………………………..100
With marked enlargement of the heart, confirmed by
roentgenogram, or the apex beat beyond midclavicular line,
sustained diastolic hypertension, diastolic 120 or more,
which may later have been reduced, dyspnea on exertion, more
than light manual labor is precluded.......................………………………..60
With definite enlargement of the heart, sustained diastolic
hypertension of 100 or more, moderate dyspnea on exertion..…………..30
7008 Hyperthyroid heart disease:
With signs of congestive failure...........................………………………….100
With permanent or paroxysmal auricular fibrillation.........………………….60
Note: The ratings under Code 7008 are not to be combined with
ratings for hyperthyroidism. Rate lesser conditions as
hyperthyroidism.
Cardiac neurosis.
Refer to psychiatric schedule.
Note: The following Codes 7010 through 7015 reflecting
arrhythmias and conduction abnormalities are occasionally
encountered. Standing alone they represent incomplete
diagnoses. Ratings are not to be combined with those for
other heart or psychiatric conditions.
7010 Auricular flutter, paroxysmal.
Rate as paroxysmal tachycardia.
7011 Auricular fibrillation, paroxysmal.
Rate as paroxysmal tachycardia.
7012 Auricular fibrillation, permanent.......................………………………...10
7013 Tachycardia, paroxysmal:
Severe, frequent attacks....................................…………………………….30
Infrequent attacks.........................................…………………………………10
7014 Sinus tachycardia:
Persistently 100 or more in recumbent position.............……………………10
7015 Auriculoventricular block:
Complete; with attacks of syncope necessitating the insertion
of a permanent internal pacemaker, and for 1 year, after
which period the rating will be on residuals as below......…………………100
Complete: with Stokes-Adams attacks several times a year
despite the use of medication or management of the heart
block by pacemaker.........................................………………………………60
Complete; without syncope or minimum rating when pacemaker has
been inserted..............................................………………………………….30
Incomplete; without syncope but occasionally symptomatic...……………..10
Incomplete; asymptomatic, without syncope or need for
medicinal control after more than 1 year...................………………………..0
Note 1: Atrioventricular block, partial or complete, may be
present associated with and related to the supraventricular
tachycardias or pathological bradycardia. Cases with Mobitz
Type II block may be encountered, as well as Wenckebach's
phenomenon, Mobitz Type I block, and varying degrees of A-V
block associated with tachyarrhythmias or other severe
disturbances in rate or rhythm. Such unusual cases should be
submitted to the Director, Compensation and Pension Service.
On the other hand, simple delayed P-R conduction time, in the
absence of other evidence of cardiac disease, is not a
disability.
Note 2: The 100 percent rating for 1 year following
implantation of permanent pacemaker will commence after
initial grant of the 1 month total rating assigned under Sec.
4.30 following hospital discharge.
7016 Heart valve replacement (prosthesis):
For 1 year following implantation of prosthetic valve......…………100
Thereafter; rate as rheumatic heart disease; minimum rating.……30
Note: The 100 percent rating for 1 year following implantation
of prosthetic valve will commence after initial grant of the
1 month total rating assigned under Sec. 4.30 following
hospital discharge.
7017 Coronary artery bypass:
For 1 year following bypass surgery........................………………100
Thereafter, rate as arteriosclerotic heart disease.
Minimum rating............................................……………………….30
Note: Authentic myocardial insufficiency with arteriosclerosis
may be substituted for occlusion.
Note: The 100 pct rating for 1 year following bypass surgery
will commence after the initial grant of the 1-month total
rating assigned under Sec. 4.30 following hospital
discharge.
------------------------------------------------------------------------


Diseases of the Arteries and Veins
------------------------------------------------------------------------
Rating
------------------------------------------------------------------------
7100 Arteriosclerosis, general:
With slight weakening of bodily vigor.......................………………..20
Without symptoms or renal, cardiac, or cerebral complications. 0
Note: Rate the arteriosclerotic complications, such as renal,
cardiac, or cerebral, under the appropriate schedule.
7101 Hypertensive vascular disease (essential arterial
hypertension):
Diastolic pressure predominantly 130 or more and severe
symptoms..................................................………………………….60
Diastolic pressure predominantly 120 or more and moderately
severe symptoms...........................................………………………40
Diastolic pressure predominantly 110 or more with definite
symptoms...................................................…………………………20
Diastolic pressure predominantly 100 or more...............…………..10
Note 1: For the 40 percent and 60 percent ratings under code
7101, there should be carefull attention to diagnosis and
repeated blood pressure readings.
Note 2: When continuous medication is shown necessary for
control of hypertension with a history of diastolic blood
pressure predominantly 100 or more, a minimum rating of 10
percent will be assigned.
7110 Aneurysm, aortic, fusiform, sacular, dissection and/or
with stenosis:
After establishment of diagnosis with markedly disabling
symptoms; and for 1 year after surgical correction (with any
type graft)...............................................…………………………..100
If exertion and exercise is precluded......................………………...60
Thereafter, rate residual of graft insertion according to
findings and symptoms under most appropriate analogy.
Minimum rating.............................................………………………..20
Note: The 100 percent rating for 1 year following surgical
correction will commence after initial grant of the 1-month
total rating under Sec. 4.30 assigned following hospital
discharge.
7111 Artery, any large artery, aneurysm of:
In lower extremities, symptomatic...........................………………..60
In upper extremities, symptomatic..........................……………..…40
Note: Rate post-operative residuals with graft insertion under
most appropriate analogy, e.g., 7116, etc., minimum rating 20
percent.
7112 Artery, small, aneurysmal dilatation of................……………..10
7113 Arteriovenous aneurysm, traumatic:
With cardiac involvement, minimum rating....................……………60
Without cardiac involvement with marked vascular symptoms.
Lower extremity.............................................………………………..50
Upper extremity.............................................………………………..40
With definite vascular symptoms.
Lower extremity.............................................………………………..30
Upper extremity.............................................………………………..20
7114 Arteriosclerosis obliterans.
7115 Thromboangiitis obliterans (Buerger's disease).
7116 Claudication, intermittent:
Severe form with marked circulatory changes such as to produce
total incapacity or to require house or bed confinement..………..100
Persistent coldness of extremity with claudication on minimal
walking....................................................……………………………60
Well-established cases, with intermittent claudication or
recurrent episodes of superficial phlebitis................……………….40
Minimal circulatory impairment, with paresthesias, temperature
changes or occasional claudication.........................……………….20
Note: The 100 percent rating will not be applied under a
diagnosis of intermittent claudication.
7117 Raynaud's disease:
Severe form with marked circulatory changes such as to produce
total incapacity or to require house or bed confinement...……….100
Multiple painful, ulcerated areas...........................…………………..60
Frequent vasomotor disturbances characterized by blanching,
rubor and cyanosis.........................................………………………40
Occasional attacks of blanching or flushing............………………...20

Note: The schedular evaluations in excess of 20 percent under
Diagnostic Codes 7114, 7115, 7116, and 7117 are for
application to unilateral involvements. With bilateral
involvements, separately meeting the requirements for
evaluation in excess of 20 percent, 10 percent will be added
to the evaluation for the more severely affected extremity
only, except where the disease has resulted in an amputation.
The resultant amputation rating will be combined with the
schedular rating for the other extremity, including the
bilateral factor, if applicable. The 20 percent evaluations
are for application to unilateral or bilateral involvement of
both upper and lower extremities.
7118 Angioneurotic edema:
Severe; frequent attacks with severe manifestations and
prolonged duration.........................................………………………40
Moderate; frequent attacks of moderate extent and duration.…….20
Mild; infrequent attacks of slight extent and duration....……………10
7119 Erythromelalgia:
Severe.....................................................……………………………40
Moderate...................................................…………………………..20
Mild........................................................……………………………..10
7120 Varicose veins.
Pronounced; unilateral or bilateral, the findings of the
severe condition with secondary involvement of the deep
circulation, as demonstrated by Trendelenburg's and Perthe's
tests, with ulceration and pigmentation:
Bilateral.................................................……………………………60
Unilateral...............................................……………………………50
Severe; involving superficial veins above and below the knee,
with involvement of the long saphenous, ranging over 2 cm. in
diameter, marked distortion and sacculation, with edema and
episodes of ulceration; no involvement of the deep
circulation:
Bilateral................................................……………………………..50
Unilateral................................................……………………………40
Moderately severe; involving superficial veins above and below
the knee, with varicosities of the long saphenous, ranging in
size from 1 to 2 cm. in diameter, with symptoms of pain or
cramping on exertion; no involvement of the deep circulation:
Bilateral.................................................…………………………….30
Unilateral................................................……………………………20
Moderate; varicosities of superficial veins below the knees,
with symptoms of pain or cramping on exertion:
Bilateral or unilateral..................................…………………………10
Mild; or with no symptoms.................................…………………….0
Note: Severe varicosities below the knee, with ulceration,
scarring, or discoloration and painful symptoms will be rated
as moderately severe.
7121 Phlebitis or thrombophlebitis, unilateral, with
obliteration of deep return circulation, including traumatic
conditions:
Massive board-like swelling, with severe and constant pain at
rest.......................................................…………………………….100
Persistent swelling, subsiding only very slightly and
incompletely with recumbency elevation with pigmentation
cyanosis, eczema or ulceration.............................…………………60
Persistent swelling of leg or thigh, increased on standing or
walking 1 or 2 hours, readily relieved by recumbency;
moderate discoloration, pigmentation and cyanosis or
persistent swelling of arm or forearm, increased in the
dependent position; moderate discoloration, pigmentation or
cyanosis...................................................…………………………..30
Persistent moderate swelling of leg not markedly increased on
standing or walking or persistent swelling of arm or forearm
not increased in the dependent position...................………………10
Note: When phlebitis is present in both lower extremities or
both upper extremities, apply bilateral factor.
7122 Frozen feet, residuals of (immersion foot).
With loss of toes, or parts, and persistent severe symptoms:
Bilateral.................................................…………………………….50
Unilateral................................................…………………………....30
With persistent moderate swelling, tenderness, redness, etc:
Bilateral................................................……………………………..30
Unilateral................................................…………………………...20
With mild symptoms, chilblains:
Bilateral...............................................……………………………...10
Unilateral...............................................…………………………….10
Note: With extensive losses higher ratings may be found
warranted by reference to amputation ratings for toes and
combination of toes; in the most severe cases, ratings for
amputation or loss of use of one or both feet should be
considered. There is no requirement of loss of toes or parts
for the persistent moderate or mild under this diagnostic
code.
7123 Soft-tissue sarcoma (of vascular origin)..............…………..100
Note: The 100 percent rating will be continued for 6 months
following the cessation of surgical, X-ray, antineoplastic
chemotherapy or other therapeutic procedure. At this point, if
there has been no local recurrence or metastases, the rating
will be made on residuals.
[29 FR 6718, May 22, 1964, as amended at 40 FR 42539, Sept. 15, 1975; 41
FR 11300, Mar. 18, 1976; 43 FR 45361, Oct. 2, 1978; 56 FR 51653, Oct.
15, 1991]




Appendix 12 – MAP-D Notification/Development Paragraphs for Nehmer

Introductory Paragraph – Development Letter Issued Prior To Final
Regulation

We are conducting a special review of [Veteran‟s name/your] claims folder in accordance with Nehmer v. U.S. Department of Veterans Affairs (VA), which requires the payment of retroactive benefits to certain Nehmer class members. Your case was identified as a potential Nehmer class-member case based on the addition of Ischemic Heart Disease, Parkinson‟s Disease, and B-cell/Hairy cell leukemias to the list of diseases presumptively associated with exposure to certain herbicide agents used in Vietnam. Entitlement to potential retroactive benefits applies to all cases wherein VA received a claim, or a claim for benefits was pending, or wherein VA denied benefits, on or after September 25, 1985, and before the date VA publishes the final regulation adding the new disabilities to the list of diseases presumptively associated with herbicide exposure in Vietnam.

Your case qualifies for this special review based on a prior VA benefits claim for [insert the newly added presumptive disease]. However, this disease has not yet been added to VA regulations governing disabilities presumptively associated with herbicide exposure. In order to add this disease, we must follow a series of legal requirements, including publishing a notice in the Federal Register. We have begun this process, but in the meantime we are requesting evidence necessary for this review so that we may expedite your decision once the regulation becomes final.

IMPORTANT NOTE TO VSRs: If no additional development is required, edit
the last sentence in the second paragraph, “We have begun this process
…” before sending the notification letter to the class member.

Introductory Paragraph – Development Letter Issued After Final Regulation

We are conducting a special review of [Veteran‟s name/your] claims folder in accordance with Nehmer v. U.S. Department of Veterans Affairs (VA), which requires the payment of retroactive benefits to certain Nehmer class members. Your case was identified as a potential Nehmer class-member case based on the addition of Ischemic Heart Disease, Parkinson‟s Disease, and B-cell/Hairy Cell Leukemia to the list of diseases presumptively associated with exposure to certain herbicide agents used in Vietnam. [Entitlement to potential retroactive benefits applies to all cases wherein VA received a claim, or a claim for benefits was pending, or wherein VA denied benefits, on or after September 25, 1985, and before the date VA publishes the final regulation adding the new disabilities to the list of diseases presumptively associated with herbicide exposure in Vietnam.] Your case qualifies for this special review based on a prior VA benefits claim for [insert the newly added presumptive disease].

VAE Paragraph

You may be able to help us expedite your case if you can have your VA or private physician complete the enclosed VA Examination Worksheet. Submitting this worksheet may eliminate the need for VA to schedule a Compensation and Pension examination to obtain current rating criteria on your case. This may help us make a decision faster. Have the physician complete all portions of the worksheet and ensure that he or she signs and dates the worksheet. In order to fully assist VA in expediting your case, please submit the examination worksheet within 30 days. If you cannot provide this information, your physician refuses to assist, or we otherwise have not received it within 30 days, we may proceed with scheduling an examination for you.

Soliciting Other Evidence Paragraph

If you have any additional information that you may consider helpful in the review of your claim, please provide us a copy of such information as soon as possible. Examples of additional information include, but are not limited to marriage certificates, birth certificates, Social Security numbers, and medical reports. Historical medical reports are especially important if your claim(s) was denied long ago and you have subsequent medical treatment records from the time the claim was filed to the present, including any period in between.




Appendix 13 – Nehmer Reajudication Review Worksheet

Static Fields:

CLAIM#: NAME of VETERAN ROJ:
VHA FACILITY# RC:
REVIEWER: [User Enter Name]
DATE RECEIVED IN RC:
Claims file received: [User will select from drop box containing: 319 – Columbia;
317 – St. Petersburg; 314 – Roanoke; 315 – Huntington; 402 – Togus;
310 – Philadelphia; 334 – Lincoln; 331; St. Louis; 351 – Muskogee; 349 – Waco;
345 – Phoenix; 377 – San Diego; 346 – Seattle; Other - free text up to 25
characters]

NEHMER READJUDICATION

Eligibility Requirements
1. Does the claims file contain verified evidence of in-country Vietnam service? [User will select Y/N] [If User selects Y, proceed to 1a]

1a. Please state where the verified evidence was found in the claims file. [User free text up to 50 characters]

2. Identify the earliest prior claim [that serves as the basis of readjudication] filed or denied between 9/25/85 and [Automatic insert date pending final regulation] for Ischemic heart disease (IHD), Parkinson‟s, and HCL and B-cell leukemias [User will select one option]:


SC claim

SC and pension claim

Live pension claim

Informal claim

Inferred claim for SC, or a claim reasonably raised by VA, or an instance where VA failed to address a claim, or VA failed to provide a decision notice letter to the class member

N/A [If N/A, skip to item 7]

2a. What are the disability(ies) claimed or inferred? [User selects-multiple selections apply]


Ischemic heart disease

Parkinson‟s disease

B-cell chronic lymphocytic leukemia/small lymphocytic

Acute lymphoblastic leukemia-mature B-cell type

B-cell prolymphocytic leukemia


Precursor B lymphoblastic leukemia

Hairy cell leukemia

N/A [If N/A, skip to item 7]

2b. What is the date of receipt of each of the prior claim(s) from item 2? [Auto list of claims from item 2] [User will enter date of receipt of each claim]

3. What is the type of medical evidence used to verify the disability for: [Auto list of diseases from 2a] [User selects-multiple selections apply for type medical evidence (VHA; Private Treatment or Other (SSA, etc) used for each disability identified]

Example:
NOTE TO VBN USERS: THIS IS IN A BOX FORM BUT I’M UNABLE TO MAKE ONE.

Disability VHA Private
Treatment
Other (SSA, etc)
Parkinson‟s Y N N
Ischemic Heart N Y Y

4. What is the rating date that disposed of the issue(s) from items 2/2b? [User will enter date of rating that disposed of the claim(s) identified in item 2-Auto list of claims will be generated] [If N/A is checked continue to item 5]

5. What was the disposition of the claim(s) from item 4? [Auto list of the claims identified in item 2 and drop-down choices are grant (enter effective date benefits granted), denial or outstanding] [If grant is checked, skip item 7 and go to item 8]

6. Is there a subsequent grant of the previous denial or deferral of benefits, and if so, insert the effective date for benefits that were previously granted based on the oldest prior claim from item 2. [User will enter the effective date benefits were previously granted]

7. Does the Veteran meet all three eligibility requirements? [User will select Y/N]
[If “YES” go to item 8]
[If “NO”, identify the eligibility requirement(s) not met and skip to item 32 check boxes-multiple selections permitted for deficiencies; a selection is required]


No in-country VN service [If this is chosen, proceed to 7a]

No prior claim filed or denied between 9/25/85 and [automatic insert date- date pending of final regulation-unknown at this time]

No diagnosis of claimed disability(ies)

7a. Is development required? [User will select Y/N] [If YES proceed to 8; If NO
skip to 32]

8. Does a rating decision correctly deny SC for [Auto list of disabilities identified
in item 2a]? [User will select Y/N]

Other Herbicide-Related Disabilities

9. Was a SC claim filed for any other based upon exposure to herbicides used in Vietnam disability? [User will select Y/N]
[If “YES”, User must select disability(ies) from the drop box and proceed to items 10-12]
[If “NO” is checked, Auto skip of this area and proceed to the area entitled “Death Claims”]

[User selects-multiple selections permitted]


Type 2 diabetes also known as type II diabetes mellitus or adult-onset
diabetes

Hodgkin‟s disease

Multiple myeloma

Non-Hodgkin‟s lymphoma

Acute and Subacute peripheral neuropathy

Porphyria cutanea tarda

Prostate cancer

Lung cancer

Bronchus cancer

Larynx cancer

Trachea cancer

Chronic lymphocytic Leukemia (CLL)

AL Amyloidosis (ALA)

Soft tissue sarcoma

10. What is the type medical evidence used to verify the diagnosis(es) for [Auto list of all disabilities identified in item 9]? [User entry required]

[Multiple selections are allowed for the type medical evidence used for each disability identified]

Example:
NOTE TO VBN USERS: THIS IS IN A BOX FORM BUT I’M UNABLE TO MAKE ONE.

Disability VHA Private
Treatment
Other (SSA, etc)
Type 2 diabetes Y N N
Hodgkin‟s disease N Y Y
Multiple myeloma N Y Y

11. Does a rating decision grant SC for [Auto list named disabilities in item 9]?
[Y/N-User entry required]

12. Does a rating decision assign the correct effective date for [Auto list named disabilities identified in item 9]? [Y/N-User entry required]

Death Claim [If the Veteran is living-skip this entire area go to items under
“Review Summary”]

13. Was there a claim for death benefits-to include burial filed or denied between 9/25/85 and [Auto date based on disability claimed]? [Y/N-User entry]
[If Yes, proceed to Q14]
[If No, Allow only Q15 and skip to Q19]

14. What is the date of receipt of death claims? [User will enter date-required entry]

15. What is the date of death? [User will enter date-required entry]

16. What is the Veteran's primary, secondary or contributory cause of death caused by [Auto list of disabilities identified in items 2a and 9-Allow for multiple selections of disabilities and for each disability, allow for the following drop-down choices: primary, secondary, contributory, N/A. Allow for one choice only].

NOTE TO VBN USERS: THIS IS IN A BOX FORM BUT I’M UNABLE TO MAKE ONE.


Disability Primary Secondary Contribu
tory
N/A
Parkinson‟s Check mark Grayed-out Grayed-
out
Grayed-
out
Ischemic Heart Grayed-out Check mark Grayed-
out
Grayed-
out

17. What is the date that disposes of the death claim? [User will enter data field]

18. What was the disposition of the claim from item 13? [User will select from drop-down choices]


grant [User will enter date of rating]

denial

deferral

[Stop and Save]

Initial Screening Summary

19. Is the Nehmer claim ready-to-rate? [Y/N-User entry]

[If “NO”, proceed to item 20 and do not allow an entry in the below drop box]
[If “YES”, drop-down choices. User entry required]


Grant with medical development [If a grant with medical development is indicated proceed to 21]

Full grant with no additional medical development [If a full grant is indicated skip to item 31]

Denial [If Denial is indicated, skip to item 32]

Memorandum for the record [If a memo is indicated skip to item 32 41]

Confirmed and continued (C&C) [If a C&C id indicated skip to item 32]

20. Is development action(s) required before a rating can be prepared? [Y/N-
User entry]
[If „YES‟, proceed to Rating Development Action(s) Required and do not allow an entry in items identified under Ready-to-Rate section (Q32-34)]
[If “NO”, proceed to Rating Development Action(s) Required and allow for entry in the Ready-to-Rate section (Q32-34)]

[Stop and Save]

Rating Development Action(s)

21. Specify the medical development action(s) required to rate claim: [User will select from drop box-multiple choices allowed]


Service Treatment Records

Uniformed Services Hospital records

VAE

VAMC Treatment Records

A statement/letter from most recent treating physician

Private treatment records

SSA Records

Autopsy/summary medical report

Death certificate

Other

Non-Medical Development Action(s)

22. Are additional development actions required? [Y/N-User entry] [Add drop box and allow multiple selections and a write-in if “Other” is checked] [If NO, skip to the Q28]

22a. If so, what type of evidence? [User entry, select from list]


birth certificate(s)

marriage certificate

divorce decree

service verification/PIES/DPRIS


other (free text – 5 sub-choices, up to 50 characters)

23. Is development required for a valid address? [Y/N-User entry]

24. Is development required to identify class member(s)? [Y/N-User entry]

25. Is development required for paid-in-full receipts? [Y/N-User entry]

[If “YES‟, User will select from list]
[If “NO”, go to Q26]


funeral home/mortuary

cemetery

individual receipts

26. Is development required for [User will select from list]


retired pay

SBP

separation pay

N/A

27. What avenue of communication is being used to request required evidence identified in items 22-26?
[User enters input date field and then check-boxes]


telephone

electronic mail

written communication

[Stop and Save]

Receipt of Requested Evidence

28. Was all requested evidence received? [Y/N-User entry]
[If “YES”, go to Q28a]
[If “NO”, go to Q29]

28a. Enter the date the requested evidence was received [User will insert date- required entry] and proceed to “RVSR Decision” section.

29 Was the (request for evidence) mail returned undeliverable? [Y/N-User entry]
[If “YES” an entry is required in item 29a]
[If “NO”, go to Q30]

29a. If the (request for evidence) mail was returned undeliverable, is the
requested evidence required in order to rate the claim? [Y/N-User entry]
[If “NO” proceed to item 32]
[If “YES” is selected go to “Decision Notice Area”]

30. Is additional evidence needed in order to rate? [Y/N-User entry]
[If “NO” go to “Ready-to-Rate section”]
[If “YES”, repeat Q21 – Q29. Label as Q30a – Q30j]

31. Is additional evidence needed to prepare award action(s)?
[If “NO” go to “Ready-to-Rate” section]
If “YES”, repeat Q22 – Q27. Label as Q31a – 31f]

[Stop and Save]

RVSR Decision

32. Does Nehmer apply in this claim? [Y/N-User entry]
[If “NO” User entry is required in item 33]
[If “YES” skip item 33 and proceed to “Ready to Prepare Award Actions.”]

33. Is C.F.R. § 3.114a applicable? [Y/N-User entry]

34. What is the disposition of the Nehmer claim(s)? [User insert date--Required Entry and then check box with multiple entries]


SC [Grant (includes any additional medical development)/Denial(includes C&C and memorandum)]


DIC [Grant (includes any additional medical development)]


Burial [Grant (includes any additional medical development)/Denial (includes C&C and memorandum)]

34a. Name of RVSR that prepared decision or memorandum? [User enters name]

[Stop and Save]

Award Action [an entry is required in all items]

35. Did you prepare award action(s) for all claimed benefits? [Y/N-User entry]
[If Yes, go to Q36.]
[If No, go to Q40.]

36. Are there multiple class members? [Y/N-User entry]

37. Are retroactive benefits payable? [Y/N-User entry]
[If “NO”, go to Q39]
[If “YES‟, go to 37a]

37a. Is the SC retroactive benefit payable based on: select [User entry-drop- down choices]


New Herbicide-Related Presumptives [User entry-amount required]

Other Herbicide-Related disabilities only [User entry-amount required]

New Herbicide-Related Presumptives and other AO disabilities [User entry-amount required]

No SC Retro

37b. Is the DIC retroactive benefit payable based on select: select [User entry- select from drop-down choices]


New Herbicide-Related Presumptives [User entry-amount required]

Other Herbicide-Related disabilities only [User entry-amount required]

New Herbicide-Related Presumptives and other Herbicide-Related disabilities [User entry-amount required]

No DIC Retro

37c. Is the retroactive SC burial benefit payable based on, select [User entry-
select from drop-down choices]


New Herbicide-Related Presumptives [User entry-amount required]

Other Herbicide-Related disabilities only [User entry-amount required]

New Herbicide-Related Presumptives and other Herbicide-Related disabilities [User entry-amount required]

No Burial Retro

38. Did you appropriately withhold for retired pay, SBP, etc? [Y/N]

39. Did you award SC burial? [Y/N]

Decision Notice letter

40. Did you prepare a decision notice letter(s)? [Y/N-User entry]
[If “YES”, go to 40a.]
[If “NO”, go to go to Q41].

40a. Check all attachments that apply [User entry-check boxes of appropriate attachments and paragraph-education benefits]


appeal rights-VAF 4107


111

rating decision, VAF 21-8760

VAF 22-5490

VA Pamphlet 22-73-3

VAF 28-8890

VAF 28-1900

CH31

CHAMPVA

Commissary and Exchange privileges

Life Insurance

POA paragraph

other appropriate paragraphs or attachments (free text)

41. Enter the date the rating decision, memorandum, and/or decision notice letter were sent to SVSR for authorization of award [User entry-date field]

[Stop and Save]

Quality Review

42. Did SVSR approve the decision notice letter and rating decision?
[If “Yes”, User must input date and go to Q42a. Do not allow date entered in 42 to be earlier than date shown in Q41]
[If “No”, User must select type of correction from drop box list]

Rating deficiency

Letter deficiency

Effective date correction (Date of claim not accurately identified or described)

Dependency

Issues not addressed (SC burial, etc)

DFAS – Retired pay/SBP

Other development actions

Finance – large check amount

Footnote 1 applicable (VA placed at issue/VA failed to address)

Other corrections

N/A

42a. Name of SVSR [User must enter name of SVSR]

[Stop and Save]

42b. Did SME review the Nehmer claim for quality? [Y/N-User entry]
[If Y, User must input date of review. Do not allow date entered in 42b to be earlier than date shown in Q42. Continue to Q42c]
[If N, Skip to Q43]

42c. Did SME identify any deficiencies? [Y/N-User entry]

[If “No”, go to Q42d]
[If “Yes”, User must select type of deficiency from drop box list and continue to
42d]

Rating deficiency

Letter deficiency

Effective date correction

Dependency

Issues not addresses (SC burial, etc)

DFAS – Retired pay/SBP

Other development actions

Finance – large check amount

Footnote 1 applicable (VA placed at issue/VA failed to address)

Other corrections

N/A

42d. Name of SME [User must enter name of SME]

[Stop and Save]

43. Enter the date the decision notice letter and rating decision was released to class member(s): [User-input date field-optional]

Miscellaneous Issues

44. Are there any outstanding deferred issues, unrelated to Nehmer, that require action by the ROJ? [Y/N-User entry-optional]

45. Was decision notice letter returned undeliverable? [Y/N-User entry-optional]

46. Enter date claims file was returned to RO of jurisdiction: [User entry date
field-optional]

46a. Select the appropriate ROJ [User entry drop down list]:

301 Boston
304 Providence
306 New York
307 Buffalo
308 Hartford
309 Newark
310 Philadelphia
311 Pittsburgh
313 Baltimore
314 Roanoke
315 Huntington
316 Atlanta
317 St. Petersburg
318 Winston-Salem
319 Columbia
320 Nashville
321 New Orleans
322 Montgomery
323 Jackson
325 Cleveland
326 Indianapolis
327 Louisville
328 Chicago
329 Detroit
330 Milwaukee
331 St. Louis
333 Des Moines
334 Lincoln
335 St. Paul
339 Denver
340 Albuquerque
341 Salt Lake City
343 Oakland
344 Los Angeles
345 Phoenix
346 Seattle
347 Boise
348 Portland
349 Waco
350 Little Rock
351 Muskogee
354 Reno
355 San Juan
358 Manila
362 Houston
372 Washington
373 Manchester
377 San Diego
402 Togus
405 White River Jct.
436 Ft. Harrison
437 Fargo
438 Sioux Falls
442 Cheyenne
452 Wichita
459 Honolulu
460 Wilmington
463 Anchorage


For Information Purpose Only (Static Fields):

LIST of ALL PRESUMPTIVE HERBICIDE CONDITIONS UNDER THE NEHMER
COURT ORDER:

Soft-tissue Sarcoma October 15, 1991
Hodgkin‟s disease February 3, 1994
Non-Hodgkin‟s lymphoma May 19, 1993
Porphyria cutanea tarda February 3, 1994
Lung cancer June 9, 1994
Bronchus cancer June 9, 1994
Larynx cancer June 9, 1994
Trachea cancer June 9, 1994
Multiple myeloma June 9, 1994
Acute and Subacute peripheral neuropathy November 7, 1996
Prostate cancer November 7, 1996
Type 2 Diabetes May 8, 2001
Chronic lymphocytic Leukemia (CLL) October 16, 2003
AL Amyloidosis (ALA) May 7, 2009
Ischemic heart disease [Pending Regulation]
Parkinson‟s disease [Pending Regulation]
B-cell chronic lymphocytic leukemia/small lymphocytic [Pending Regulation]
Acute lymphoblastic leukemia-mature B-cell type [Pending Regulation]
B-cell prolymphocytic leukemia [Pending Regulation]
Precursor B lymphoblastic leukemia [Pending Regulation]
Hairy cell leukemia [Pending Regulation]



Appendix 14 – Nehmer Data Collection for New AO Presumptions Database

1. Date RC received the claims file: [Date and RC # will be captured from static fields]

2. Identify the disability: [Data will be captured from Q2A, Q9]
a. Parkinson‟s disease
b. Ischemic heart disease
c. HCL and other B-cell Leukemias
d. Other Herbicide-related disabilities
e. Non-Nehmer issues/disabilities

3. Was VHA medical evidence used to rate? [Data will be captured from Q10]

4. What additional evidence is needed? [Data will be captured from Q21, Q22, Q22a Q23, Q24, Q25, Q26]

5. Date development initiated: [Data will be captured from Q27]

6. Date requested evidence is received and claim is ready to rate: [Data will be captured from Q28a]

7. Development Mail returned undeliverable? [Data will be captured from Q29]

8. Date of initial Nehmer rating decision: [Data will be captured from Q34]

9. Disposition of claims: [Data will be captured from Q34]
a. SC
b. DIC
c. SC Burial

10. Retroactive benefit amount: [Data will be captured from Q37a, 37b, 37c]
a. SC
b. DIC
c. SC Burial

11. Date initial rating and decision notice sent to SVSR for review: [Data will be captured from Q41]

12. Type of correction(s) identified based on SVSR review: [Data will be captured from Q42]

13. Date SVSR approved decision letter and rating for release: [Data will be
captured from Q42]

14. Date of SME review: [Data will be captured from Q42b]

15. Type of deficiencies based on SME review: [Data will be captured from
Q42c]

16. Date decision letter and rating sent to class member and OGC: [Data
will be captured from Q43]

17. Claims file returned to the RO of jurisdiction: [Data will be captured from
Q46]




Appendix 15 – Footnote 1: Need for Amendment to 38 C.F.R. § 3.816
Regarding Nehmer Claims

The case of Nehmer v. United States Veterans' Administration originated in 1986 as a class-action lawsuit against VA by Vietnam veterans and their survivors who alleged that VA had improperly denied their claims for service connection for disability or death allegedly caused by exposure to the herbicide Agent Orange in service.

In a May 3, 1989, decision, the United States District Court for the Northern District of California ruled in the Nehmer case that a VA regulation, issued in 1985, which implemented legislation directing the establishment of standards and criteria for adjudication of claims by Vietnam veterans allegedly suffering from herbicide-related disabilities, was invalid because the "cause and effect" standard used in the regulation was inconsistent with the intent of Congress. The court concluded that Congress intended VA to apply a more lenient standard requiring only a "significant statistical association" between herbicide exposure and the occurrence of a disease in exposed persons. The court invalidated VA's regulation and voided all benefit denials under that regulation.

In May 1991, the Nehmer parties entered into a "Final Stipulation and Order" (Final Stipulation) outlining the actions to be taken in response to the court's decision. Among other things, the Final Stipulation provided, in general: (1) that VA would issue new regulations in accordance with the Agent Orange Act of 1991; (2) that, after issuing such regulations, VA would readjudicate those claims where a prior denial had been voided by the court's 1989 order and would initially adjudicate all similar claims filed subsequent to the court's order; and (3) that, if benefits were awarded upon such readjudication or adjudication, the effective date of the award would be the date the claim was filed.

In a February 11, 1999, decision, the district court explained and clarified the scope of its 1989 decision. The court stated that its 1989 decision had voided all VA decisions that were rendered while the invalid regulation was in effect and which denied service connection for a Vietnam veteran's disease that was later found to be associated with herbicide exposure under the regulations issued under the Agent Orange Act of 1991. The court explained that it was irrelevant whether the claimant or VA had referenced herbicide exposure or the invalid regulation in connection with the prior claim. Pursuant to that decision, the effective date of service connection granted under the 1994 regulations establishing presumptions of service connection for certain diseases may relate back to the date of an earlier claim for service connection of the same disease, regardless of whether the earlier claim was expressly based on herbicide exposure.

Last year. VA promulgated 38 C.F.R. § 3.816, which codified the procedures for adjudicating claims under the Final Stipulation. On January 21, 2004, class counsel asserted in a letter to the Department of Justice (DOJ) that footnote 1 in paragraph 5 of the Final Stipulation establishes a substantive rule that VA failed to address in section 3.816. Paragraph 5 states, in relevant part, as follows:

For any of the [presumptive diseases], as to any
denials of claims which were voided as a result of the
Court's May 3, 1969 Order, the effective date for
disability compensation or dependency and indemnity
compensation ... , if the claim is allowed upon
readjudication ... , will be the date the claim giving rise
to the voided decision was filed ..., assuming the
basis upon which compensation is granted after
readjudication is the same basis upon which the
original claim was filed,1 or the date the claimant
became disabled or death occurred, whichever is
later. In the event the basis upon which a claim for
compensation benefits is granted after readjudication
is different than the basis for the original claim giving
rise to the voided decision,2

the effective date ... will
be the date on which the claim asserting the basis
upon which the claim is granted was filed, or the date
the claimant became disabled or death occurred,
whichever is later.

(emphasis added). Footnote 1 provides: "The basis upon which the original claim was filed refers to the disease[s] or condition[s] which Chapter 46 of VA Manual M21-1, paragraph 46.02 required to be coded in the ratings decision contained in the claimant's claim file, which ratings decision was voided by the Court's May 3, 1989 Order." (emphasis added).

At the time that the parties entered the Final Stipulation, paragraph 46.02 of VA Adjudication Procedure Manual M21-1 (1965) provided:

a. Compensation Ratings. All disabilities claimed will
be given consideration as to service connection and
be coded as a disability rating on VA Form 21-6796.
Any additional disabilities noted will be coded, except:
(1) Acute transitory conditions that leave no residuals.
(2) Noncompensable residuals of venereal disease.
(3) Disabilities noted only on the induction
examination, or conditions recorded by history only.
(4) Disabilities found by authorization to have not
been incurred "in line of duty".

b. Pension Ratings. Code all claimed or noted
disabilities on VA Form 21-6796 and show the
percent of disablement for each unless the disabilities
have been held to be due to the claimant's own willful
misconduct by Administrative Decision.

(cross references omitted). The Final Stipulation defined "the basis upon which the original claim was filed" with reference to paragraph 46.02 of the manual, which established the requirement that additional noted disabilities be "coded," unless a listed exception applied. Among other things, the manual provision excepted from the coding requirement "conditions recorded by history only." Thus, noted disabilities that have been diagnosed were required to be coded in a rating decision even though the claimant may not have raised any issue concerning those disabilities in the claim being adjudicated. The provision is clear that the term "code" refers to rating codes, not diagnostic codes. Accordingly, a condition that the paragraph 46.02 language "required to be coded," is one that the provision required to be rated in a decision.

Class counsel asserts that the paragraph 46.02 language, which footnote 1 incorporated in the Final Stipulation, established "objective criteria ... for determining whether a rating decision denied compensation for a particular disease." Class counsel further contends that a claim falls within the effective- date provisions of paragraph 5 of the Final Stipulation "if paragraph 46.02 of M21-1 required the covered Agent Orange-related disease to be 'coded' in the rating decision on the claim." In our view, this is a reasonable interpretation of the Final Stipulation because it is consistent with the court's and the parties' intent to provide a remedy for the Nehmer class. In other words, in the context of this litigation, it is reasonable to assume that, in 1991, the court and the parties intended to provide a remedy for persons with diagnosed herbicide-related conditions who either received a rating decision denying an express claim for service connection for that condition; received a rating decision that addressed (coded as non-service-connected) an unclaimed herbicide-related condition; or received a rating decision that failed to address a noted condition (failed to code the condition). Each of these types of "decisions" could be viewed as being voided by the court's May 1989 order. However, section 3.816 currently covers only the first type of decision.

A second reasonable but less pro-veteran interpretation of the footnote is that it merely prescribes how to determine the correct effective date for adjudications conducted under paragraph 3 and 4 of the Final Stipulation. Paragraph 3 provides that as soon as VA issues a final rule service-connecting any disease under the Agent Orange Act of 1991, it "shall promptly thereafter readjudicate all claims for any such disease which were voided by the Court's Order of May 3, 1989." Paragraph 4 provides that VA shall rely upon its Special Issue Rating System (SIRS) or notice from an individual claimant to identify claimants who received qualifying denials. Identified claimants may then be awarded an earlier effective date using the paragraph 5 criteria. Class counsel essentially argues that paragraph 5, rather than paragraphs 3 and 4, identifies the claim denials that the district court voided in its May 1989 decision. That argument is arguably incorrect because it reads paragraph 5 out of context and ignores the paragraph 4 provision that requires VA to use SIRS to identify eligible claimants. SIRS does not contain information concerning unclaimed disabilities that paragraph 46.02 of Manual M21-1 required to be coded.

Class counsel intends to bring this matter to the district court's attention if we refuse to amend section 3.816. As stated above, the Final Stipulation is subject to two reasonable interpretations, only one of which could be viewed as expanding the remedy available to the Nehmer classmembers. Clearly, the district court has every reason to select the interpretation proposed by class counsel, as it is a reasonable, pro-veteran interpretation that is consistent with the purpose of the Final Stipulation. In addition, the court could conclude that application of the alternative interpretation would lead to an absurd result. For example, a veteran who, in 1986, flied a claim for service connection for respiratory cancer and received a rating decision denying that claim would be entitled to retroactive benefits under Nehmer. However, another veteran, who was also diagnosed with a respiratory cancer and who deliberately limited his 1986 claim to a back condition, knowing that VA could not service-connect his cancer in the absence of a presumption. would not be entitled to retroactive benefits under Nehmer.

The pro-veteran interpretation would require a minor amendment to section 3.816(c)(1), which governs effective dates for decisions voided by the district court's May 3, 1989, order. Footnote 1 does not apply where the decision on a claim was made after May 3, 1989.

Amendment of 3.816(c)(1) would affect very few claims. Less than one percent of all claims identified for further adjudication by the Nehmer plaintiffs' review of claims files in discovery involved unclaimed conditions that were required to be coded under paragraph 46.02 of Manual M21-1. Further, plaintiffs' file review has covered all herbicide-related presumptive conditions, except type 2 diabetes. which VA service. connected effective July 9, 2001 {the U.S. Court of Appeals for the Federal Circuit later changed the effective date of the regulation service- connecting type 2 diabetes to May 8, 2001, in Liesegang v. Secretary of Veterans Affairs, 312 F.3d 1368 (Fed. Cir. 2002)).

With respect to type 2 diabetes, amendment of section 3.816 might require readjudication of some claims. However, VA has already agreed to readjudicate all identifiable type 2 diabetes claims. As stated above, paragraph 4 of the Final Stipulation requires VA to use its SIRS database to identify claimants entitled to readjudication under Nehmer. Although SIRS no longer exists, VA searched its VITALS database for type 2 diabetes claimants that filed claims prior to 1999. That search identified 2,777 claimants with potential eligibility under Nehmer. VA issued a Nehmer readjudication notice (required by paragraph 4 of the Final Stipulation) to 1,756 of those claimants and, in Fast letter 02-33, instructed the regional offices to readjudicate their c\aims. VA has not provided a readjudication notice to the remaining claimants and has not initiated readjudication of their claims. On December 7, 2000, VA issued Fast Letter 00-91, instructing the regional offices to establish “685 diary" with a July 1, 2001, suspense date for any claim seeking service connection for type 2 diabetes based upon herbicide exposure in Vietnam. On June 14, 2001, VA issued Fast Letter 01-51, which instructed the regional offices to use July 9, 2001, as the effective date for benefits awarded for type 2 diabetes. Because VA believed that Nehmer might require readjudication of those claims, the regional offices were instructed to use the "685 diary" for tracking decisions. On October 19, 2001, VA issued Fast letter 01-94, which instructed the regional offices to begin applying Nehmer to type 2 diabetes claims. VA later entered into a stipulation in which it agreed to readjudicate all of the type 2 diabetes claims controlled under the “685 diary" (13,318 claims). Although VA readjudicated those claims, a decision was recently made to conduct a full second review.

As part of its compliance with the Federal Circuit's Liesegang decision, VA identified 9,340 claimants that filed claims for type 2 diabetes, had Vietnam service, and received a compensation award effective between May 7, 2001, and August 2, 2001.

The 9,340 "Liesegang claimants" are probably also listed among the 13,318 "685 diary claimants." Accordingly, except for the 1,756 claims that have already been readjudicated under Fast letter 02-33, we conclude that it would be prudent for VA's upcoming readjudication of 14,339 type 2 diabetes claims (13,318 controlled by the "685 diary" and the 1,021 claims identified from VITALS that remain unadjudicated) to apply the proposed amendment to all identifiable claims that are outside the scope of the district court's discovery orders.

VA's recent decision to conduct a second review of the 13,318 type 2 diabetes claims was prompted in part by quality concerns. Class counsel has demanded that VA produce its quality review data and has threatened to raise the issue before the district court. DOJ refused that request based upon VA's decision to conduct a second review of all 13,318 claims. Amending section 3.816 would provide another basis for conducting the second review and might tend to neutralize class counsel's argument that he is entitled to the quality review data.




Appendix 16 – VSR and SVSR Responsibilities

VSR Responsibilities:

- Inputting the award data into the appropriate awards system. Most awards should be processed in VETSNET.
- Assuring that all prior payments are put into BDN or VETSNET if already in receipt of benefits. RVSR backfills award. Manual adjustments may be required.
- Generating an award document.
- Preparing a notification letter.
- Annotating the award with the presumptive condition.
- Signing the award

SVSR Responsibilities:

- Reviewing the award and notification letter for accuracy.
- Co-signing the award.
- Assuring that a third level review is performed prior to award authorization, in cases involving retroactive payments greater than $25,000.
- Sending the file for review by the Nehmer Subject Matter Expert (SME) when selected for quality review.
- Submitting copies of the memorandum for the record and the Payment History Inquiry Screen upon request by OGC.
- Incorporating a copy of the database into the file




TRAINING CASE SCENARIOS


VSR Scenario 1

You receive a file for review. The DD Form 214 shows the Veteran served in the Navy from June 1, 1962, to August 30, 1973. The file also includes a DPRIS request response showing the Veteran served in-country in the Republic of Vietnam from August 10, 1970, to November 30, 1972.

The Veteran filed an original claim for service connection for IHD on April 3, 1998. Medical evidence was submitted showing a diagnosis of IHD. The Veteran was denied service connection and notified of the decision on August 17, 1998.

On December 23, 1998, the Veteran then filed a claim for Pension benefits. The Veteran listed IHD under conditions that contributed to his unemployability. Medical evidence dated December 20, 1998, was submitted with a Pension claim showing chronic congestive heart failure. Pension was granted effective December 23, 1998, with diagnostic code 7005.

The Veteran passed away on January 27, 1999, with the secondary cause of death listed as Ischemic heart disease (IHD).

September 20, 2007, the surviving spouse of the Veteran filed a claim for DIC and was denied and notified on February 19, 2008, due to lack of evidence showing that IHD was caused by service.

VSR has confirmed that the surviving spouse is living and has not remarried since the death of the Veteran. Evidence of record shows they were married from 1990 until the date of death. No children are of record.

Questions

1) Is this a Nehmer case?

2) Are there any retroactive benefits payable?

3) What effective date(s) should be assigned for retroactive compensation, if applicable?

4) What is the effective date for DIC, if applicable?

5) Is any additional development necessary? If so, what development is required? If not, what is the next action?




VSR Scenario 2

A case arrives at your desk for review. The BIRLS VID screen shows that the Veteran is currently alive.

A review of the record shows that the Veteran served in-country in the Republic of Vietnam and has a combined rating of 30 percent without dependents. The Veteran‟s current rating code sheet shows that she is rated 10 percent for type II diabetes mellitus (Agent Orange) and 20 percent for a left knee condition. Both conditions were granted effective May 17, 2002, the date the Veteran claimed these conditions.

The Veteran filed a claim for hairy cell leukemia (HCL) on January 10, 1985. The Veteran‟s claim was denied and notified on September 12, 1985, because the condition was not incurred nor aggravated by service and the condition was not caused by herbicide exposure. Diagnostic code 7700 was used to prepare the rating. Evidence received on January 10, 1985, shows the Veteran was diagnosed with inactive HCL with original diagnosis on November 12, 1984.

Questions

1) Is this a Nehmer case?

2) Is the Veteran entitled to retroactive compensation?

3) What effective date(s) should be assigned for retroactive compensation, if applicable?

4) Is any additional development necessary? If so, what development is required? If not, what is the next action?




VSR Scenario 3

You receive a file for review. A DD Form 214 in the file shows the Veteran served in the Navy from February 2, 1960, to May 31, 1981, and that the Veteran received a Vietnam Service Medal. The dates of service were verified using a DPRIS request; however, in-country service was not verified.

The Veteran filed an original claim for service connection for PD on March 29, 2005. Medical evidence was submitted showing a diagnosis of PD. The Veteran was denied service connection on July 10, 2005, under diagnostic code 8002.

A review of the file shows that the Veteran passed away on October 8, 2006, with the contributory cause of death listed as Parkinson‟s disease (PD). The Veteran was not in receipt of benefits and did not have a claim pending at time of death.

A claim for burial benefits was submitted on October 15, 2006, from Jane Doe. The application indicated that she was not filing a claim for service-connected death. Jane also listed herself as the surviving spouse on the application. Evidence of record shows that Jane was the surviving spouse since 1979 and has not remarried since the date of death. No children are of record. VA did not send VA Form 21-534, Application for DIC, Death Pension & Accrued Benefits by Surviving Spouse or Child.

The claim for burial benefits was denied as the Veteran was not in receipt of compensation or pension benefits. The death certificate shows the address of the deceased to be the same as that of the surviving spouse.

Questions

1) Is this a Nehmer case?

2) Are there retroactive benefits?

3) What effective date(s) should be assigned for retroactive compensation, if applicable?

4) Is Jane Doe entitled to service connected burial benefits?

5) What is the effective date for DIC, if applicable?

6) Is any additional development necessary? If so, what development is required? If not, what is the next action?




VSR Scenario 4

A case arrives at your desk for review. The BIRLS VID screen shows that the Veteran is currently alive. A review of the record shows that the Veteran served in-country in the Republic of Vietnam.

The Veteran previously filed a claim for Pension benefits on May 10, 2009. On the Veteran‟s VA Form 21-526 the Veteran noted she was applying for Pension benefits only. The Veteran stated in the remarks section that her ischemic heart disease, which is due to service, is keeping her from working. A rating decision dated September 19, 2009, granted pension benefits using diagnostic code 7007 as the medical evidence showed the Veteran had a left ventricular dysfunction with an ejection fraction of 20 percent.

Questions

1) Is this a Nehmer case?

2) Is the Veteran entitled to retroactive compensation?

3) What effective date(s) should be assigned for retroactive compensation, if applicable?

4) Is any additional development necessary? If so, what development is required? If not, what is the next action?





VSR Scenario 5

A review of the record shows that the Veteran served in-country in the Republic of Vietnam.

The Veteran filed a claim for type II diabetes mellitus and hypertensive vascular disease in April 7, 1994. The Veteran was denied service connection for both conditions on September 21, 1994, using diagnostic codes 7913 and 7101. The evidence of record showed that the Veteran had a diagnosis of both conditions. Evidence showed that the Veteran was hospitalized 2 times for diabetes mellitus in 1993 for hypoglycemia. The Veteran was also on daily injections of insulin and on a restricted diet. The records also showed that the Veteran‟s blood pressure was 210/115 mmHg.

The Veteran filed a claim to reopen his type II diabetes claim and filed a new claim for ischemic heart disease on August 28, 1996. The claim was again denied on February 15, 1997. The evidence showed that the Veteran required 2 daily injections of insulin and now required daily dialysis due to chronic renal failure. Additionally, the evidence showed that a workload of 2 Metabolic Equivalents (METs) resulted in dyspnea, fatigue, and dizziness and the Veteran‟s diastolic pressure was predominantly measured at 132 mmHg.

A review of the file shows that the Veteran passed away on October 8, 1998, with the primary cause of death listed as end-stage renal disease, with contributing cause of death as diabetes mellitus. The surviving spouse filed a claim for death pension benefits on December 8, 1998. The surviving spouse was granted death pension and is still receiving benefits. The evidence of record shows that the spouse was married continuously to the Veteran from May 8, 1981, until the Veteran‟s death. The record also shows that they never had children. The spouse has not remarried.

Questions

1) Is this a Nehmer case?

2) Are there retroactive benefits?

3) What effective date(s) should be assigned for retroactive compensation, if applicable?

4) Is surviving spouse entitled to additional death benefits? If so, what is the benefit and what is the effective date?

5) Is any additional development necessary? If so, what development is required? If not, what is the next action?



RVSR Scenario 1

Rater Joe receives a file that is marked ready for decision. The DD Form 214 shows the Veteran served in the Navy from June 1, 1962, to August 30, 1973. The file also includes a DPRIS request response showing dates of service in the Republic of Vietnam from August 10, 1970, to November 30, 1972.

The Veteran filed an original claim for service connection for IHD on April 3, 1998. Medical evidence was submitted showing a diagnosis of IHD. Evidence shows that, at the time of the claim, continuous medication was required and a workload of 8 Metabolic Equivalents (METs) resulted in dyspnea, fatigue, and dizziness. The Veteran was denied service connection and notified of the decision on August 17, 1998.

On December 23, 1998, the Veteran then filed a claim for Pension benefits. The Veteran listed IHD under conditions that contributed to his unemployability. Medical evidence dated December 20, 1998, was submitted with a Pension claim showing chronic congestive heart failure. Pension was granted effective December 23, 1998, with diagnostic code 7005.

The Veteran passed away on January 27, 1999, with the secondary cause of death listed as ischemic heart disease (IHD).

On, September 20, 2007, the surviving spouse of the Veteran filed a claim for Dependency and Indemnity Compensation (DIC) and was denied and notified on February 19, 2008, due to lack of evidence showing that IHD was caused by service.

VSR has confirmed that the surviving spouse is living and has not remarried since the death of the Veteran. Evidence of record shows they were married from 1990 until the date of death. No children are of record.

Questions

1) Is this a Nehmer case?

2) Are there any retroactive benefits payable?

3) What percentage(s) and effective date(s) should be assigned for retroactive compensation, if applicable?

4) What is the effective date for DIC, if applicable?

5) What is the next action?




RVSR Scenario 2

A case arrives at your desk for a rating decision. The BIRLS VID screen shows that the Veteran is currently alive.

A review of the record shows that the Veteran served in-country in the Republic of Vietnam and has a combined rating of 30 percent without dependents. The Veteran‟s current rating code sheet shows that she is rated 10 percent for type II diabetes mellitus (Agent Orange) and 20 percent for a left knee condition. Both conditions were granted effective May 17, 2002, the date the Veteran claimed these conditions.

The Veteran filed a claim for hairy cell leukemia (HCL) on January 10, 1985. The Veteran‟s claim was denied and notified on September 12, 1985, because the condition was not incurred nor aggravated by service and the condition was not caused by herbicide exposure. Diagnostic code 7700 was used to prepare the rating. Evidence received on January 10, 1985, shows the Veteran was diagnosed with inactive HCL with original diagnosis on November 12, 1984.

Questions

1) Is this a Nehmer case?

2) Is the Veteran entitled to retroactive compensation?

3) What percentage(s) and effective date(s) should be assigned for retroactive compensation, if applicable?

4) What is the next action?




RVSR Scenario 3

You receive a file identified as ready to rate. A DD Form 214 in the file shows the Veteran served in the Navy from February 2, 1960, to May 31, 1981, and that the Veteran received a Vietnam Service Medal. The dates of service were verified using a DPRIS request; however, in-country service was not verified.

The Veteran filed an original claim for service connection for PD on March 29, 2005. Medical evidence was submitted showing a diagnosis of PD. The Veteran was denied service connection on July 10, 2005, using diagnostic code 8002.

A review of the file shows that the Veteran passed away on October 8, 2006, with the contributory cause of death listed as Parkinson‟s disease (PD). The Veteran was not in receipt of benefits and did not have a claim pending at time of death.

A claim for burial benefits was submitted on October 15, 2006, from Jane Doe. The form indicated that she was not filing a claim for service-connected death. Jane also listed herself as the surviving spouse on the application. Evidence of record shows that Jane was the surviving spouse since 1979 and has not remarried since the date of death. No children are of record.

The claim for burial benefits was denied on February 20, 2006, as the Veteran was not in receipt of compensation or pension benefits and the location of death was noted as the decedent‟s residence. VA sent Jane VA Form 21-534 and the form was not returned.

Questions

1) Is this a Nehmer case?

2) Are there retroactive benefits?

3) What percentage(s) and effective date(s) should be assigned for retroactive compensation, if applicable?

4) Is Jane Doe entitled to burial benefits?

5) What is the effective date for DIC, if applicable?

6) What is the next action?



RVSR Scenario 4

A case arrives at your desk for a rating decision. The BIRLS VID screen shows that the Veteran is currently alive. A review of the record shows that the Veteran served in-country in the Republic of Vietnam.

The Veteran previously filed a claim for Pension benefits on May 10, 2009. On the Veteran‟s VA Form 21-526 the Veteran noted she was applying for Pension benefits only. The Veteran stated in the remarks section that her ischemic heart disease, which is due to service, is keeping her from working. A rating decision dated September 19, 2009, granted pension benefits using diagnostic code 7007 as the medical evidence showed the Veteran had a left ventricular dysfunction with an ejection fraction of 20 percent.

Questions

1) Is this a Nehmer case?

2) Is the Veteran entitled to retroactive compensation? Yes, a claim for pension is a claim for compensation. .

3) What percentage(s) and effective date(s) should be assigned for retroactive compensation, if applicable?

4) What is the next action?




RVSR Scenario 5

You receive a file for a rating decision. A review of the record shows that the Veteran served in-country in the Republic of Vietnam.

The Veteran filed a claim for type II diabetes mellitus and hypertensive vascular disease in April 7, 1994. The Veteran was denied service connection for both conditions on September 21, 1994, using diagnostic codes 7913 and 7101. The evidence of record showed that the Veteran had a diagnosis of both conditions. Evidence showed that the Veteran was hospitalized 2 times for diabetes mellitus in 1993 for hypoglycemia. The Veteran was also on daily injections of insulin and on a restricted diet. The records also showed that the Veteran‟s blood pressure was 210/115 mmHg.

The Veteran filed a claim to reopen his type II diabetes claim and filed a new claim showing a diagnosis of ischemic heart disease on August 28, 1996. The claim was again denied on February 15, 1997. The evidence showed that the Veteran required 2 daily injections of insulin and now required daily dialysis due to chronic renal failure. Additionally, the evidence showed that a workload of 2 Metabolic Equivalents (METs) resulted in dyspnea, fatigue, and dizziness and the Veteran‟s diastolic pressure was predominantly measured at 132 mmHg.

A review of the file shows that the Veteran passed away on October 8, 1998, with the primary cause of death listed as end-stage renal disease, with contributing cause of death as diabetes mellitus. The surviving spouse filed a claim for death pension benefits on December 8, 1998. The surviving spouse was granted death pension and is still receiving benefits. The evidence of record shows that the spouse was married continuously to the Veteran from May 8, 1981, until the Veteran‟s death. The record also shows that they never had children. The spouse has not remarried.

Questions

1) Is this a Nehmer case?

2) Are there retroactive benefits? .

3) What percentage(s) and effective date(s) should be assigned for retroactive compensation, if applicable?

4) Is surviving spouse entitled to additional death benefits? If so, what is the benefit?

5) What is the next action? Prepare rating and send to Authorization for award.