A Victory for Vietnam Veterans
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
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
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."
In 1991, plaintiffs and the VA agreed to a Final Stipulation and Order
(Stip. & Order) to resolve pending issues. Under this agreement, the VA
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.
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
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
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.