VA Compensation: Herbicide (Agent Orange) Claim Effective Dates of Presumptive Conditions

Agent Orange

Normally, the effective date for a VA Compensation Claim is the date the claim was filed, or the date the Intent to File was filed. However, there are several separate provisions for effective dates for presumptive conditions related to herbicide (Agent Orange) exposure.

These effective dates apply only to those with a presumed herbicide disease and presumed herbicide exposure who served on the land of Vietnam or its inland waterways.

38 CFR 3.816

In 2002 the Nehmer Court’s decision drastically changed how the VA processes Vietnam agent orange claims. Nehmer Court Nehmer v. Veterans’ Admin. of Govt. of U.S., 284 F.3d 1158 (9th Cir. 2002). 38 CFR 3.816 details the effective dates of claims for herbicide exposure under the Nehmer Court Order.

If the Veteran was denied an initial claim for a condition, that later became a covered herbicide disease, between September 25, 1985 and May 3, 1989, the effective date of the claim will be either the date the VA received the claim or the date the disability arose, whichever comes later. This applies to diseases that can be “reasonably construed as the same covered herbicide disease for which compensation has been awarded.” This means that the terminology used in the diagnosis of the disease can contain minor differences, such as not mentioning herbicide exposure, and still be awarded as the covered disease.

If the Veteran had a claim pending before the VA on or before May 3, 1989 or the Veteran submitted a claim between that date and the date the condition became a presumptive condition, the effective date of the claim will be the date the original claim was received by the VA or the date the disability arose, whichever is later. The later of the two dates will be granted regardless of when the condition was listed as a herbicide presumptive condition.

Additionally, if a Veteran submitted a claim for a presumptive condition within one year of discharge, the date of the claim will be the day following the date of the Veteran’s discharge.

For example, if a Veteran files a claim in 1985 for an Agent Orange related condition and is denied, but a decade later, the condition he filed for is added to the presumptive conditions list for Agent Orange. The VA is obligated to assist all Veterans that claimed the new presumptive condition and if service connection is granted, award an effective date back to the initial claim in 1985.

Additionally, if the Veteran dies prior to the VA deciding his Agent Orange claim, the VA is still obligated and must decide the claim and pay any award to the Veteran’s surviving spouse or dependent children and parents.

All this means that veterans should file a claim as early as possible to keep the date of claim as the effective date. Even if a condition being claimed is not yet a presumptive condition of Agent Orange, if the condition is ever granted presumptive status, the effective date for that condition is the date the VA received the claim.