With new 'AO' rule out, VA readies spigot of payments
By TOM PHILPOTT | SPECIAL TO STARS AND STRIPES Published: September 3, 2010
The Department of Veterans Affairs published its final regulation Aug. 31 for compensating Vietnam veterans with ischemic heart disease, Parkinson’s disease or B-cell leukemia, or their surviving spouses.
Veterans diagnosed with these diseases only will have to show they stepped foot in Vietnam sometime from Jan. 9, 1962 through May 7, 1975, to qualify for service-connected disability ratings and compensation.
The first batch of payments will be made immediately after Oct. 30, when a required 60-day review period for Congress will expire.
As many as 93,000 veterans and survivors who filed claims previously for these conditions are in line for retroactive payments. Another 60,000 claims have been filed since Oct. 13, when VA Secretary Eric Shinseki announced that these diseases would be added to the list of ailments VA presumes are caused by wartime exposure to Agent Orange. VA projects that at least 150,000 more claims will be filed over the next 12 to 18 months.
In publishing the regulation, VA revealed that the price tag for adding these diseases to its Agent Orange presumptive list could be at least 50 percent higher, over the next 10 years, than the $42.2 billion VA uses.
VA calculated the lower estimate by applying incident rates for these diseases in the general population to the Vietnam veteran population. But Sen. Daniel Akaka (D-Hawaii), chairman of the veterans’ affairs committee, noted that Vietnam veterans are older. At his request, VA “age-adjusted” the incidence rate for heart disease alone and the cost jumped by $24 billion.
That figure would be even higher but VA officials, using newer data, lowered the average expected disability rating for heart disease from 60 percent down to 50 percent for Akaka’s age-adjusted calculation.
The resulting 10-year estimate of nearly $67 billion also doesn’t reflect the higher incidence of disease expected among Vietnam veterans due to Agent Orange. Still, VA officials said they remain satisfied with their original estimate of $42.2 billion.
The Akaka’s higher cost projection is sure to be raised at a Sept. 23 hearing where his committee will examine how the Agent Orange Act is being applied, and whether a finding by scientists of “limited or suggestive association” between these diseases and herbicide exposure is sufficient evidence to award disability compensation to any ailing Vietnam veteran.
To stop payments, both the Senate and House in this election year would have to pass a joint resolution to block the regulation. President Obama then would have to sign the resolution, after his own Office of Management and Budget spent the past two months studying the VA rule before finally approving it. So VA officials are preparing to make payments.
Here’s a rundown of how payments will be handled for categories of veterans and survivors. This information came from an interview Sept. 1 with Thomas Pamperin, associate deputy under secretary for policy and program management for the Veterans Benefit Administration, and Diana Rubens, associate deputy under secretary for field operations.
RETROACTIVE PAY – Because of a 25-year-old court ruling, Nehmer v. Department of Veterans Affairs, VA must review claims previously filed for these diseases and make payments retroactive to the claim date, or to the date of the Nehmer ruling, Sept. 25, 1985, whichever is later.
The 93,000 veterans and survivors so far identified as having filed a claim for one of these diseases don’t need to file another, said Pamperin. “We are going to review those cases on our own…back to the earliest date they claimed that disability -- but not earlier than Nehmer -- and will award benefits from that date.”
If the veteran is deceased, VA will award back pay to the surviving spouse. If no surviving spouse is found, the National Veterans Legal Services Program, which litigated the Nehmer decision, will help to identify someone else who might be eligible for the benefits.
Besides disability pay, back payments could include Dependency and Indemnity Compensation for the widow, enhanced burial benefits if a veteran’s death was due to a service-connected condition, and 36-months of education benefit to a spouse or a child, no matter what age the child is today, if the veteran was 100-percent disabled at time of death.
If veterans or survivors are worried the VA will not identified them as eligible for retroactive payments, they can file a new claim, Pamperin said.
“We are doing a data run against our corporate record, and some of these corporate records are limited to six diagnostic codes. So we’ve done the best we can with the resources we have to identify people,” he said.
Diana Rubens said 1000 staffers at 13 regional officers, including 326 specially-trained rating specialists, are working only on Nehmer claims, which can involve complex calculations and long searches for next of kin.
RECENT CLAIMS – 60,000 veterans and survivors who have filed claims for the three diseases since last October also will receive Nehmer protection in that payment will be made back to the date of the claim.
Every VA service center and regional office is working to develop and process these claims for payment sometime after Oct. 30.
“Our goal is to spend the next couple of months setting up as many claims as possible for payments as quickly as possible,” Rubens said.
FUTURE CLAIMS – If veterans or survivors planning to submit a new Agent Orange claim can show they had one of these diseases diagnosed on or before Aug. 31 this year, and if they file their claim before Aug. 30, 2011, it will be payable back to Aug. 31, 2010, the date the regulation took effect. Otherwise, payment date will be the date an approved claim was filed.
Pamperin advises veterans to gather medical records from private doctors so VA won’t need to schedule new exams to confirm their diseases.
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