articles - agent orange

VA says Nehmer Retroactive Benefit Rules Don't Apply to New Presumptive Agent Orange Condition

National Veterans Legal Services Program (NVLSP) believes VA is wrongly failing to pay retroactive disability and DIC benefits to veterans and surviving family members who have applied for benefits based on chronic lymphocytic leukemia (CLL)—the latest disease added by the VA to the list of diseases presumptively service connected due to exposure to Agent Orange. Although the Consent Decree in Nehmer generally requires VA to pay benefits for Agent Orange-related diseases retroactive to the date the claim is filed, the VA announced on October 16, 2003, when it published its CLL regulation, that it believes the Nehmer rules do not apply to CLL. As a result, the VA has been assigning October 16, 2003, rather than the date of claim, as the effective date for benefits awarded under the CLL regulation.

NVLSP intends to challenge the VA's failure to apply the Nehmer rules to CLL claims. NVLSP urges those affected by the VA's position (Vietnam veterans and survivors of deceased Vietnam veterans—and those who represent them—who applied for benefits due to CLL before October 16, 2003, but who received an October 16, 2003, effective date) to contact NVLSP by calling (202) 265-8305, extension #119.

Nehmer is one of NVLSP's class action lawsuits against the VA. Nehmer invalidated VA's denials of all claims based on diseases related to Agent Orange exposure if such denials were made on or after September 25, 1985. Nehmer provided that these claims be readjudicated. See Nehmer v. U.S. Dep't of Veterans Affairs, No. CV-86-6160 at ¶¶ 3 and 5 (N.D. Cal. May 14, 1991) (Final Stipulation and Order). Many veterans and surviving family members have received or are entitled to retroactive benefits due to Nehmer.

According to VA, Nehmer applies only to awards based on conditions established as presumptive prior to the Agent Orange Act's original sunset date of September 30, 2002. However, in 2002, the Congress extended the Agent Orange Act of 1991 and required the National Academy of Sciences to continue to analyze scientific studies on the health effects of exposure to herbicides used in Vietnam, and to issue additional reports every two years until the year 2014.