| |
|
|
|
|
| |
| Home >> VA Claims Resources >> VA Claims >> VA General Counsel Precedent Opinions |
VA General Counsel Precedent Opinions |
|
PREC 15-95 Applicability of the final Stipulation and Order Entered in the Nehmer litigation
|
PREC 15-95 Applicability of the final Stipulation and Order Entered in the Nehmer litigation Citation: Vet. Aff. Op. Gen Couns. Prec. 15-95, VAOPGCPREC 15-95, 1995 QUESTIONS PRESENTED: a. Under the provisions of the Final Stipulation and Order entered in the case of Nehmer v. United States Veterans’ Administration: (1) should the effective date of an award of dependency and indemnity compensation to a veteran’s surviving spouse be based on the date of an original claim filed in 1987 and finally denied in 1988, where, although the veteran served in the Republic of Vietnam during the Vietnam era, the surviving spouse did not allege in the original claim that the veteran’s death was caused by exposure to Agent Orange or other herbicides; or (2) should the effective date of the award be based on the date of a reopened claim, filed in 1993, in which the claimant alleged that the veteran’s death may have resulted from exposure to Agent Orange? b. Do the provisions of the Nehmer Final Stipulation and Order governing readjudication of claims apply to claims for burial allowance for service-connected death? c. If so, may burial allowance based on service-connected death be awarded in the case of a veteran buried prior to the effective date of the regulation establishing a presump- tion of service connection for the cause of the veteran’s death? d. If service-connected burial allowance may be paid for a veteran buried prior to the effective date of the regula-tion, would the amount payable be determined under the burial-allowance statute as in effect at the time of burial or that in effect at the time of the change in law under which service connection was established?
HELD: a. If you conclude that the original dependency and indemnity compensation claim of a veteran’s surviving spouse did not allege that the veteran’s death resulted from a disease which may have been caused by exposure to herbicides containing dioxin during the veteran’s Vietnam-era service in the Republic of Vietnam, and was not denied under former 38 C.F.R. § 3.311a(d) (1986), which governed claims based on herbicide exposure, the claim does not fall within the scope of the Final Stipulation and Order entered in Nehmer v. United States Veterans’ Administration. In that case, the effective date of a subsequent award of dependency and in demnity compensation to the surviving spouse following reopening of the claim may not be based on the date of the original claim. However, if such a surviving spouse’s reopened claim involved allegations that the veteran’s death from lung cancer may have resulted from exposure to Agent Orange, it would be governed by the provisions of the Stipulation pertaining to claims filed after the district court’s May 3, 1989, order in Nehmer invalidating a portion of the referenced regulations. Under paragraph 5 of the Final Stipulation and Order, the effective date of the award in such a claim must be based on the later of the date of filing of the reopened claim or the date of the veteran’s death. b. The portion of the Final Stiplation and Order in the Nehmer case pertaining to readjudication of claim denials voided by the district court’s May 3, 1989, order in that case applies to claims for burial allowance for service-connected death under 38 U.S.C. § 2307, if such claims were denied under former 38 C.F.R. § 3.311a(d). However, under the circumstances of a particular claim, you may be justi- fied in concluding that a burial-allowance claim was not denied under former section 3.311a(d). In that case, the Final Stipulation and Order would not be applicable. c. If a claim for service-connected burial allowance under what is now 38 U.S.C. § 2307 was denied under former 38 C.F.R. § 3.311a(d) and therefore fell within the group of claim denials voided by the district court’s May 3, 1989, order in the Nehmer case, or if entitlement to the nonservice-connected burial benefit was previously established, if service connection for the cause of the veteran’s death is later established on the basis of regulations issued pursuant to the Agent Orange Act of 1991, the post-burial effective date of those regulations would not be an impediment to payment of a burial allowance under section 2307. d. The maximum amount of burial allowance payable under section 2307 is determined based on the maximum rate autho- rized at the time the burial took place. Where nonservice-connected burial benefits have already been paid, and it is later determined that entitlement to service-connected burial allowance exists, only the difference between the amount previously paid and the amount payable under section 2307 may be paid. |
|
|
|
|
|
|
|
|
|
|
|
