articles - agent orange

DEPARTMENT OF VETERANS AFFAIRS
Veterans Benefits Administration
Washington, D.C. 20420

April 12, 2004

Director (00/21) In Reply Refer To: 211A
All VA Regional Offices Fast Letter 04-06

SUBJ: Procedure for Manual Review of Claims Files to Award Earlier Effective Date Pursuant to Liesegang, et al. v. Secretary of Veterans Affairs.

Background Information

On December 10, 2002, the U.S. Court of Appeals for the Federal Circuit issued a decision in the case of Liesegang et al. v. Secretary of Veterans Affairs. The Court held that the correct effective date for the regulation adding type II diabetes to the herbicide presumptive list is May 8, 2001 instead of July 9, 2001. As a result of this decision, we issued an automatic one-time adjustment to 9,340 veterans granting an earlier payment date of June 1, 2001. For each adjusted case, a notice to the claimant, POA, and RO was issued. In order to comply with the decision in Liesegang, an additional 4,680 cases must be reviewed manually. This letter provides additional information and instructions for review of those claims.

Claims for Review

Enclosed with this letter is a file list in Excel spreadsheet format containing the cases that must be manually reviewed and adjusted to comply with the decision in Liesegang. The review of these claims must be completed by September 30, 2004.

Procedure

For each claim, you must:

Make the adjustment in effective date and payment date if necessary.

Send a notice letter to the claimant, regardless of what decision is
made.

Inform the RO where the file is currently located that it must perform the review. If the claims file is located at an RPC, request the file and perform the review.

Review the files from the list using the following criteria to determine if a change in effective date is required.

Filing Date: Change in effective date and payment date

First claim was filed on or after June 1, 2001, but before May 8, 2002. Effective date will be changed to May 8, 2001. First payment date will be changed to June 1, 2001, and benefits will be paid.

First claim was filed after May 8, 2001, but before June 1, 2001 Effective date will be changed to May 8, 2001, but no additional benefits will be paid because the payment date of VA benefits is the first day of the month following the month of entitlement: June 1, 2001. The veteran will have received the maximum amount of benefits allowed by law.

First claim was filed on or earlier than May 8, 2001 No change to either effective date or payment of benefits because the veteran has already received the maximum amount of benefit payments allowed by law.

First claim was filed on or after May 8, 2002. Effective date and payment
will not be affected by Liesegang.

Reminder:

We have attempted to remove claims that are also affected by Nehmer. However, if the provisions of the Nehmer lawsuit apply to any of these claims, including secondary service-connected conditions, please award the earliest effective date and payment date possible. For instance, claims for Agent Orange presumptive disabilities filed or denied between September 25, 1985, and May 8, 2001, are to be awarded the earliest possible effective date.