Jan 20, 2001
John E. Howell
Stars and Stripes Veterans' Advocate
An important Federal District Court decision that may affect many Vietnam
veterans has
just been made. Essentially, it says the VA violated an agreement by (1)
refusing to pay retroactive disability and death benefits to Vietnam veterans
and their survivors and (2) by refusing to pay the estates of deceased Vietnam
veterans the retroactive benefits due them
while they were living.
If you are a Vietnam veteran with one of the presumptive Agent Orange-related
diseases
or the survivor of a Vietnam vet who died of one of the presumptive diseases
listed below,
you may be entitled to additional benefits from the VA.
To briefly summarize this complex case:
The Veterans Dioxin and Radiation Exposure Compensation Standards Act of
1984
(the Dioxin Act) was intended to ensure that disability compensation be provided
to
veterans for all disabilities arising [after service in Vietnam] that are
connected,
based on sound scientific and medical evidence, to such service. VA regulations
were
revised in 1985 to state that any Vietnam veteran was presumed to have been
exposed
to a herbicide containing dioxin; but the VA recognized only chloracne as being presumptively service-connected.
In 1987, Beverly Nehmer, the Vietnam Veterans of America and nine Vietnam
veterans or
widows filed a federal class action suit against the VA for failure to comply
with the law.
They were represented pro bono (for free) by lawyers from the National Veterans
Legal
Services Program (NVLSP). In 1989, the court invalidated the VA's first
regulation on
dioxin exposure [38 CFR 311a(d)] and threw out all benefits decisions made
under that regulation. This decision is called "Nehmer I."
Diseases Listed
In 1991, plaintiffs and the VA agreed to a Final Stipulation and Order (Stip.
&Order) to
resolve pending issues. Under this agreement, the VA had to determine which
diseases
should be given presumptive service connection due to exposure to dioxin.
The VA contracted with the National Academy of Sciences, which found that
the following diseases could arise from exposure to dioxin: non-Hodgkin's
lymphoma, soft-tissue sarcoma, Hodgkin's disease, prostate cancer, multiple
myeloma, cancer of the larynx, lung cancer,
cancer of the bronchus and cancer of the trachea.
The last four cancers listed must develop to a 10 percent disability or more
within 30 years
of the veteran's departure from Vietnam in order to be service-connected.
Chloracne, porphyria cutanea tarda (a liver disease) and acute and subacute
peripheral neuropathy (non-cancer diseases) were also service-connected,
but only if they developed
to a 10 percent disability or more within one year of leaving Vietnam.
The Stip. & Order also required the VA to readjudicate denied claims
that were filed
after, or pending on, Sept. 24, 1985, and the effective date of any award
was to be
the date that claim was filed.
More litigation followed. In Nehmer II, decided in 1999, the plaintiffs returned
to court,
saying the VA violated the Stip. & Order by denying benefits retroactive
to the date the
claim was filed. The court rejected the VA's arguments, found it had used
an "unlawfully restrictive test" and ordered the VA to change their procedure
to conform to the
Stip. & Order. The court also granted the plaintiffs the right to look
for other veterans
and survivors who had not been paid the appropriate amount of retroactive
benefits
because of the VA's "misinterpretation."
Court Raps VA
In 2000, the plaintiffs again returned to the court because the VA was again
construing
the Stip. & Order too narrowly. The court decided two issues.
First, using rather harsh language, the court found that the VA improperly
denied retroactive benefits to class members (Vietnam veterans and their
survivors) whose claims were based
on prostate cancer. The plain meaning of the Stip. & Order was that whenever
the VA
service-connects a disease to dioxin, it must readjudicate all prior claims
as long as they
were filed after, or pending on, Sept. 24, 1985, and grant an effective date
as of the date
that claim was filed.
Second, the court found that the VA improperly denied benefits to the estates
of some
Vietnam veterans who died from presumptively service-connected diseases,
and ordered
the VA to pay compensation to the estates of class members who died after
retroactive
benefits began to accrue but before the VA made the payment.
The court also gave the plaintiffs the opportunity to find Vietnam veterans
(or their survivors)
who have not been paid the retroactive benefits owed to them by the VA.
Class Members Identified
Are you a class member who is owed additional retroactive benefits? You are if:
You are a Vietnam veteran and you filed a claim after, or had one pending
on, Sept.24, 1985,
for one of the presumptively service-connected diseases listed above, but
the VA has not paid you disability benefits retroactive to the date you filed
this claim.
You are a survivor of a Vietnam veteran who died of any of the presumptive
diseases,
and you filed a claim after, or had one pending on, Sept. 24, 1985, but the
VA has
not paid you death benefits retroactive to the date you filed this claim.
If you are a class member, contact the NVLSP by writing (don't call) to:
NVLSP's
Agent Orange Intake, Suite 610, 2001 S St. NW, Washington, D.C. 20009.
Or you can e-mail the NVLSP at nvlsp@nvlsp.org.
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