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.


You may be entitled to additional benefits from the VA.
- Howell




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.

This case is a terrific win for all Vietnam veterans and the lawyers of the
NVLSP. Thanks, NVLSP!

John E. Howell, a retired Air Force colonel and attorney in Washington, D.C.,
can be reached at johnhowell@erols.com.

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"When the way comes to an end, then change - having changed, you pass through."

      I. Ching

 

 Bruce "Doc". Melson

http://www.docmelson.com/