Paying new Agent Orange claims a complex drill
By TOM PHILPOTT | Special to Stars and Stripes | Published: November 4, 2010
Many Vietnam veterans with ischemic heart disease, Parkinson’s disease or B-cell leukemia expected VA compensation for their illnesses to begin soon after a 60-day congressional review period ended Oct. 30.
Though the first batch of payments went out this week, the relatively small number — about 1300 claims worth $8 million — reinforced the fact that the process for calculating retroactive payments is lengthy and complex.
VA expects to produce a steady stream of rating decisions and payments each week for these diseases,but there will not be a flood of checks as some veterans had hoped.
Most of 163,000 veterans or survivors with pending claims for these diseases should expect a longer wait, at least several more months. The VA goal is to have all these claims processed and paid by October next year.
After VA published its final regulation Aug. 31 to add these diseases to its list of ailments presumed caused by herbicide exposure in Vietnam, Congress had 60 days to block it. To veterans’ relief, it chose not to do so.
VA used that time to do preliminary work on many claims but had to stop short of assigning disability ratings. That’s because VA computers are programmed to assign a payment date with each rating and, by law, none of these claims could be paid before the 60 days had passed.
Claim specialists don’t have all the information they need yet to rate many of the older claims. Many veterans and survivors in line for retroactive payments, some going back 25 years, are being asked to provide letters from private physicians explaining when the ailments first were diagnosed.
VA also will try to develop timelines for a disease’s progression in individuals so appropriate disability ratings can be assigned at different stages, and back payments are calculated as accurately as possible.
For ischemic heart disease, for example, a patient initially needing medication might have been rated 10 percent. Years later, when an x-ray showed an enlarged heart, the rating could have been raised 30 percent. As stress tests showed the disease progressing, higher ratings and higher compensation would be made.
Barton F. Stichman, co-director of the National Veterans Legal Services Program, said he doesn’t know how many claims will need to be developed this way or how many can be paid without VA waiting for more information. His organization, NVLSP, is certified counsel for the class of veterans filing Agent Orange claims.
More than 1,000 claim specialists in nine VA resource centers are working on 93,000 claims filed for these diseases between Sept. 25, 1985 and Oct. 13, 2009. The end date is when VA Secretary Eric Shinseki announced his decision to add these diseases to the list of presumptive diseases for Agent Orange exposure.
The earlier date is when VA first published a regulation on presumptive Agent Orange diseases, sparking a successful court challenge on behalf of ailing Vietnam vets. This resulted in an appeals court ruling, Nehmer v. Department of Veterans Affairs, ordering that VA compensate veterans retroactively for any claim they filed for a disease later deemed service-connected because of new medical evidence linking it to herbicide exposure in Vietnam.
Shinseki’s announcement triggered Nehmer protection for 93,000 previously denied claims. Since then, 70,000 more veterans and survivors have filed new claims for these diseases. The more recent claims are being worked at VA regional offices.
VA has trained hundreds of rating specialists specifically for these new claims. These retroactive claims often require complicated calculations and, if veterans have died since claims were filed, often long searches for next of kin.
Veterans or survivors who want to be sure their denied claim is being reviewed can call their VA regional office to learn if they are among the 93,000 being eyed for retroactive compensation.
“There’s no time limit on this,” said a VA official. “So if they don’t get some notice that we are working on their claim in the next six months or so they should say ‘Hey, what about me?’ ”
About 10,000 of the older claims were filed by veterans now deceased. For these, award notices will be mailed to last known addresses. If past experience is an accurate guide, 90 percent will be returned as undeliverable. VA will take a few more steps to reach next of kin and then pass on these files to the NVLSP to continue the search.
“We’ve been able to locate a lot of these people in the past” for VA, Stichman. But for some cases “it’s taken us a few years.”
As certified counsel for the class, the NVLSP also gets a copy of every Agent Orange claim decided so it can monitor VA compliance.
Given the resources VA has committed to these claim, Stichman believes the VA is trying to pay claims as quickly and carefully as it can. He also isn’t concerned that VA’s own completion deadline is 11 months away.
“That doesn’t surprise me. It’s a hell of a lot of cases,” he said. “We’re not going to complain when they are putting this much effort into it.”
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