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 re-adjudicate 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

Court Raps VA

In 2000, the plaintiffs again returned to the court because the V.A. 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 re-adjudicate 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.