In the continued themes – "better late than never" and "there is good news and bad news" – the VA, by the time this article is printed, should have added Type 2 diabetes to the list of "presumptively" service connected diseases linked to Agent Orange for those who served in Vietnam.
Vietnam Veterans have long suspected a connection between Type 2 diabetes (diabetes mellitus or adult on-set diabetes) and exposure to Agent Orange. The VA's own Undersecretary for Health urged the Secretary, in 1999, to service-connect the disease without further study. Instead, the Secretary asked the Institute of Medicine of the National Academy of Sciences (NAS) to speed up its review of the new literature linking diabetes to dioxin exposure and to issue a report sooner than the normal two-year cycle. NAS did and on Oct. 11, 2000, issued a report finding a link sufficient to service-connect Type 2 diabetes.

Many Veterans with Type 2 diabetes (90 percent of all diabetics are Type 2) who filed for VA compensation in the 1980s and 1990s, have had to wait to receive disability benefits until the NAS issued its report, the VA reviewed it and the VA published a proposed diabetes regulation (which was published on Nov. 9, 2000). There may be further delay due to Congress' power to review regulations under the Congressional Review Act (triggered by regulations that may cost more than $100 million).

The good news is the regulation is simple. All that is needed to prove a claim is that the Veteran served in Vietnam (between Jan. 9, 1962 and May 7, 1975) and now has Type 2 diabetes. The bad news is the effective-date rules (date from which first payments are calculated) are easily confused by some VA adjudicators and, at this time, the VA is appealing a ruling in a National Veterans Legal Service Program (NVLSP) case (Nehmer) by the U.S. District Court of the Northern District of California which sets an earlier effective date in some cases.

The effective-date rules for Type 2 diabetes are important, because a Veteran or survivor may be entitled to up to 16 years in retroactive benefits. The rules are:

• For claims denied by a regional office or the BVA between Sept. 25, 1985 and Jan. 4, 1994, the effective date, as a result of the Nehmer case, is the date of the filing of the claim. This is the case even if the claimant did not mention Agent Orange during the claim. This is the result of the second decision in the Nehmer case.
• For claims first filed after Jan. 4, 1994, the VA will likely take the position that the effective date is not governed by Nehmer. Instead, the VA will probably decide the effective date rule for awards of disability benefits for diabetes should be no earlier than the date in 2001 that is the published effective date of the diabetes regulation. We, at NVLSP, believe the Nehmer court's decisions require the effective date for all Agent Orange claims to be the date the claim was first filed, as long as the claim was filed or denied after Sept. 24, 1985. If the third Nehmer decision, which deals with the effective date for prostate cancer claims filed after Jan. 4, 1994, is upheld, the VA will be forced to follow this Nehmer effective date rule on retroactive benefits whenever it grants a diabetes claim.
• A further complicating factor is the VA did not publish a final rule within the required 90-day time period set by the Agent Orange Act of 1991, and the Congressional Review Act may further delay the effective date of the rule as far as the VA is concerned.

Confused? Stay in touch with the VRNA's Web site and our "Ask the Expert" service. If you have Type 2 diabetes and served in Vietnam, file a VA claim now, even if you previously filed a claim for disability benefits for diabetes that was denied.