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NVLSP & Veterans Service Organizations File Lawsuit Against VA Over Agent Orange Disability Benefits

Released 6/3/14 | Tags: Agent Orange, Veteran's Benefits

VA Secretary Given More than 100 Days to Intervene, VSOs Turn to the Courts for Justice

WASHINGTON – A group of US military veterans who served in Korea’s demilitarized zone (DMZ) and were exposed to toxic Agent Orange chemicals are being wrongfully denied disability benefits, says a new lawsuit, McKinney v. Secretary of Veterans Affairs, filed today in the U.S. Court of Appeals for the Federal Circuit.

The lawsuit was filed by four veterans service organizations -- the National Veterans Legal Services Program (NVLSP), the American Legion, the Military Order of the Purple Heart and the Vietnam Veterans of America -- and one veteran, Michael McKinney, who served along the Korean DMZ.  Attorneys from Paul Hastings LLP and NVLSP represent the petitioners. 

The lawsuit hinges on the effective date used by the Department of Veterans Affairs (VA) to determine eligibility for Agent Orange benefits for military veterans who served in the Korean DMZ. The lawsuit identifies a seven-year gap between 2004 and 2011 when the VA denied claims for disability benefits it should have paid. Lawyers intend to file a motion for a stay on Thursday, June 5 that will force the VA to identify affected veterans and adjust their benefits accordingly.

The coalition of veteran’s groups sent former VA Secretary Eric Shinseki a letter on January 28, 2014 outlining the problem. The letter asked him to investigate it and direct his staff within 90 days to correct the situation. They have not received a response. It is now more than 100 days since that letter was sent.

Background on the Lawsuit
During the Vietnam War, from April 1968 to July 1969, the toxic chemical Agent Orange was sprayed along the southern boundary of the Korean demilitarized zone (DMZ). As a result, troops stationed in the Korean DMZ during that period and long after were exposed to harmful toxins, leading many to develop illnesses that are scientifically linked to Agent Orange exposure.

When passing legislation granting disability benefits to children with birth defects of veterans who served along the Korean DMZ, Congress was aware Agent Orange spraying along the Korean DMZ ended in 1969. Because Agent Orange persists in the environment long after spaying ends, Congress acted in 2003 to make the children with birth defects eligible for these benefits if the veterans served along the Korean DMZ either during the 16 months of herbicide spraying or during the 25 months after spraying ceased – from August 1, 1969 to August 31, 1971.

But in 2004 the VA adopted a manual rule that arbitrarily divided this 41-month period into two different time blocks, and imposed different benefit rules to these veterans depending upon when during the 41-month period they served along the Korean DMZ. Under VA’s 2004 rule, those who served near the Korean DMZ from April 1968 to July 1969 were entitled to the presumption that they were exposed to herbicides. But veterans who served near the Korean DMZ from August 1, 1969 to August 31, 1971 were not entitled to the same presumption.  Instead, the VA said that these veterans had to establish decades after the fact that they were actually exposed to herbicides on a factual, case-by-case basis. 

Seven years after the 2004 manual rule was published for public comment, the VA realized its mistake.  Based on objections from veterans service organizations, VA published a rule in 2011 that extended the presumption of Agent Orange exposure in the 2004 manual rule to veterans who served along the Korean DMZ from August 1969 to August 1971. But the VA refused to make the corrected rule retroactive. 

The net result is that veterans covered by the 2011 rule who filed claims before 2011 are treated dramatically differently by the VA, depending on when they came into contact with Agent Orange.  Those who filed claims prior to 2011 and are presumed exposed to Agent Orange along the Korean DMZ during the period from April 1968 to July 1969 are entitled to benefits retroactive to the date of their claims. But those who are presumed exposed to Agent Orange along the Korean DMZ during the period from August 1969 to August 1971 cannot receive benefits retroactive to the date of their claim if they filed their claim prior to 2011.    

Perhaps hundreds or thousands of veterans who filed claims for benefits after 2004 but before 2011 have been denied compensation for Agent Orange related illnesses based on the corrected regulation’s February 24, 2011 effective date. 

Prior Efforts to Get VA to End Its Discriminatory Treatment
The lawsuit filed today mirrors one filed by NVLSP in the U.S. Court of Appeals for Veterans Claims in 2011 on behalf of a veteran who served along the Korean DMZ and was denied benefits prior to 2011 because he was presumed exposed to Agent Orange along the Korean DMZ from August 1969 to August 1971, rather than from April 1968 to July 1969. The Veterans Court scheduled the appeal for oral argument before a panel of the Court, indicating that it would issue a precedential decision that would affect all veterans who served near the Korean DMZ from August 1969 to August 1971. But two weeks before the scheduled oral argument, the VA prevented issuance of a precedential decision by settling the case by paying benefits to the veteran who had appealed, retroactive to the date of his claim in 2006. 

But this settlement does not apply to any other similarly situated veterans.  One such veteran is petitioner Michael McKinney.  In 2010, he filed a claim for several diseases to which VA regulations accord presumptive service-connected status due to Agent Orange exposure.  His claim was based on exposure to Agent Orange during his service along the DMZ, which began in August 1969. In 2011, while Mr. McKinney’s claim was still pending, the VA finalized the 2011 regulation, but ultimately, the VA wrongfully denied his claim for benefits for the period between the date of his claim and 2011.

Comment from NVLSP Attorney
“We have no alternative to help Michael McKinney and the potentially hundreds or thousands of other veterans like him, other than to file a lawsuit and request relief from the court. Mr. McKinney has waited for years for the VA disability benefits he is entitled to and suffers from serious illnesses linked to Agent Orange exposure,” said Bart Stichman, co-executive director of NVLSP. 

“We made the VA aware of this problem in January 2014. We have yet to receive even an acknowledgement of our letter. We do not file lawsuits lightly. We would prefer to work with the VA to correct a systemic problem immediately when it is identified, so we don’t have to pursue litigation to right a wrong. This lawsuit seeks to force the VA to do the right thing by these veterans,” said Stichman.

An expert in veteran-related litigation, Stichman and NVLSP won VA disability benefits for Vietnam veterans suffering  from illnesses linked to exposure to Agent Orange chemicals during their military service through the class action lawsuit, Nehmer v. US. Veterans Administration.  The 1991 consent decree has since resulted in Vietnam veterans and their families receiving more than $4 billion in retroactive disability compensation.

For Veterans Who Served in the Korean DMZ
If you are a veteran or a survivor of a veteran who served in the Korean demilitarized zone between August 1, 1969 and August 31, 1971, and you filed a VA claim for disability benefits between 2004 and 2011 for illnesses that are linked to Agent Orange exposure, please contact NVLSP at 1.855.333.0677.

Press and media interview requests should be directed to Ami Neiberger-Miller, 703-887-4877, ami@steppingstoneLLC.com.

The National Veterans Legal Services Program (NVLSP) is an independent, nonprofit veterans service organization that has served active duty military personnel and veterans since 1980. NVLSP strives to ensure that our nation honors its commitment to its 22 million veterans and active duty personnel by ensuring they have the federal benefits they have earned through their service to our country. NVSLP offers training for attorneys and other advocates, connects veterans and active duty personnel with pro bono legal help when seeking disability benefits, publishes the nation's definitive guide on veteran benefits, and represents and litigates for veterans and their families before the VA, military discharge review agencies and federal courts. For more information go to www.nvlsp.org.


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