On June 27, 2024, the Department of Veterans Affairs (VA) Office of Inspector General (OIG) released Review 23-01266-78. The Review was conducted to determine to what extent the Veterans Benefits Administration (VBA) identified veterans potentially eligible for prior disability claims.
The OIG Review indicated that the VBA has missed two entire veterans’ populations for re-adjudications and retroactive benefits, under the National Defense Authorization Act (NDAA) of January 1, 2021.
Of the 86,894 Vietnam veterans who were denied compensation and medical services benefits prior to the NDAA of 2021, approximately 36,125 Vietnam veterans were now entitled to approximately $836.8 million in unpaid benefits.
Specifically, 36,125 were entitled to about $836.8 million in unpaid benefits, and 13,669 of these were entitled to nearly $5.1 million in ongoing monthly benefits. Of the 86,894 veterans, 28,314 veterans were potentially due retroactive benefits, and 22,456 had claims not re-adjudicated, but they and their survivors were not affected.
The NDAA of 2021 introduced additional presumptions of service connection for the purposes of VBA compensation benefits based on the veteran’s exposure to herbicides, such as Agent Orange, in Vietnam. These three (3) diseases were: bladder cancer, hypothyroidism or underactive hypothyroidism, and Parkinsonism (a neurological disorder).
The OIG Review stated that “Entitlement to compensation payments was warranted in these (estimated 36,125) cases because service connection for the NDAA-covered three (3) diseases would have led to retroactive benefits.”
The second veteran population analyzed in the OIG Review were veterans identified by their Camp Lejeune military service records. The OIG reviewed claims for 226 veterans, who had their claims denied by the VHA, and estimated 102 veterans were entitled to about $7.5 million in benefits.
The OIG cited Nehmer vs US Department of Veterans Affairs in its Review. This was a 1986 class-action lawsuit in which Vietnam veterans, and their survivors, alleged VA had improperly denied their compensation claims for service-connected disabilities caused by herbicide exposure during military service.
In 1991, because of Nehmer vs US Department of Veterans Affairs, the VA was required to re-adjudicate claims filed by Vietnam veterans.
Consequently, in 2021, the VBA stated VA would review claims for Nehmer vs US Department of Veterans Affairs eligibility from approximately 70,000 veterans and survivors in its implementation of the NDAA, and additional veterans might be identified through other document reviews.
According to the requirement, the VA Manual 21-1, “Determining Eligibility to Retroactive Payment Under Nehmer Stipulation, stated when regulations add new presumptive diseases of service connection, the VA must search its records to find eligible claimants and award benefits, without requiring action by the claimant.
In the Conclusion portion of the OIG Review, three (3) recommendations were made. First, the VBA staff should use improved methodologies to identify eligible veterans, re-adjudicate claims, and send outreach letters to potential Nehmer class members who could qualify for retroactive benefits under the NDAA.
Second, the OIG recommended VBA ensure claims processors at screening sites understand the need to look for claims that may warrant re-adjudication under the Nehmer consent decree and subsequent court orders.
Third, the VBA should update the standard operating procedures to have staff screen all claims (not just those for NDAA-related diseases) to determine whether veterans’ medical records show a diagnosis of any now-covered herbicide-related disease that was documented at the time of a disability benefit claim received before January 1, 2021.
A VA senior management advisor disagreed with the first recommendation. He stated Veterans Health Administration (VHA) records were not involved in re-adjudication determinations because VBA did not have ready access to VHA diagnosis data.
Therefore, the VBA would not send outreach letters to potential Nehmer class members who could qualify for retroactive benefits under the NDAA.
However, VBA did say in their response that it plans to establish a work group to determine how to leverage improved methods of identification, within the parameters of Nehmer identification established within the consent decree.
“Although VA did not concur with the first recommendation,” according to the OIG Report, “this action by VBA to identify all eligible veterans to ensure veterans receive benefits to which they may be entitled meets the intent of the first recommendation.
The VA did concur with the other two (2) recommendations (improve claims processors’ identification of claims possibly warranting re-adjudication, and update procedures to include veterans’ medical records) contained in the OIG Review.
My Opinion: Congress should investigate this situation and require the VBA to send outreach letters to the 36,125 disabled veterans. This letter will inform the veterans that they will reconsider their claims based upon the NDAA of 2021 with the three (3) presumptions.
BioSketch: John Plahovinsak is a retired 32-year Army veteran, who served from 1967 to 1999. He is the Disabled America Veterans (DAV) Department of Ohio’s Hospital Chairman and Adjutant of DAV Chapter #63 (Clermont County). He can be reached at: plahovinsak@msn.com.