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NVLSP Applauds VA Sec’y McDonough’s Announcement to Apply Nehmer Consent Decree to 3 New AO Diseases

Released 5/27/21 | Tags:

NVLSP Applauds VA Secretary McDonough’s Announcement to 
Automatically Review Previously Denied Claims for Three New Agent Orange-Related Diseases and Pay Retroactive Compensation Under Nehmer Consent Decree 
-Potentially Impacting 50,000 Veterans and Survivors-


WASHINGTON – The National Veterans Legal Services Program (NVLSP) welcomed the announcement today from Secretary of Veterans Affairs Denis McDonough that the VA will review and pay retroactive benefits  for prior VA denials of disability and death benefits for three diseases with presumptive service connection to Agent Orange – bladder cancer, Parkinsonism and hypothyroidism – based on  the consent decree in NVLSP’s landmark case Nehmer v. U.S. Department of Veterans Affairs.

“We applaud Secretary McDonough’s efforts to finally recognize veterans and their families who have been suffering for far too long without benefits to which they are legally entitled, “said Bart Stichman, Executive Director of the National Veterans Legal Services Program (NVLSP). “This is a momentous decision and we hope that VA will expeditiously identify and pay those who were previously denied benefits for these diseases.” 

It took an act of Congress late last year to force VA to adopt the finding of the National Academy of Sciences, Engineering and Medicine that these three diseases are associated with Agent Orange exposure.  By applying the provisions of the 30-year- old Nehmer Consent Decree, the VA will now automatically identify all Vietnam veterans and their survivors who previously applied for compensation for these three disease and determine if they qualify for retroactive benefits based on the date of their prior claim.  

Nehmer v. U.S. Department of Veterans Affairs is a class action lawsuit brought by NVLSP attorneys in 1986 to challenge a VA regulation that stated, among other things, that chloracne is the only disease that scientific evidence shows is associated with exposure to herbicides like Agent Orange used by the United States in Vietnam.  In 1987, the district court certified the case as a class action on behalf of all Vietnam veterans and their survivors who had been denied VA benefits for a condition allegedly associated with herbicide exposure or who would be eligible to file a claim for such benefits in the future.  The court also certified NVLSP’s lawyers as the lawyers for the class.  In an order issued on May 3, 1989, the court invalidated the portion of the regulation providing that no condition other than chloracne is associated with herbicide exposure and voided all VA decisions denying benefit claims under that portion of the regulation.

In 1991, NVLSP’s attorneys negotiated a favorable consent decree with the VA in Nehmer.  The Nehmer consent decree requires the VA, whenever it recognizes that the emerging scientific evidence shows that a positive relationship exists between Agent Orange exposure and a new disease, to (a) identify all claims based on the newly recognized disease that were previously denied and then (b) pay disability and death benefits to these claimants, retroactive to the initial date of claim.  During the period from 1991-2010, the VA  recognized that scientific studies show that there is a positive association between Agent Orange exposure and diabetes, ischemic heart disease, Parkinson’s disease, and more than a dozen different types of cancer.  As a result of the Nehmer consent decree, over the last three decades, the VA has paid an aggregate of more than $4.6 billion in retroactive disability and death benefits to hundreds of thousands of Vietnam veterans and their surviving family members.

As recently as July 2020, NVLSP filed its fourth motion for enforcement to obtain compliance with the 1991 Consent Decree in Nehmer on behalf of Blue Water Navy Vietnam Veterans and their survivors who were wrongfully denied retroactive disability and death benefits since 2002 due to a change in VA policy.  In November 2020, the U.S. District Court for the Northern District of California ruled in favor of the veterans and their families and ordered the VA to automatically readjudicate thousands of benefits claims that the Court found had been wrongly denied under the Nehmer Consent Decree. The Court also ordered the VA to pay retroactive compensation if it finds the veteran served in the territorial seas of Vietnam.  The VA recently announced that it had identified more than 60,000 “Blue Water” Vietnam Veterans and Survivors whose cases the VA must automatically review.

The National Veterans Legal Services Program (NVLSP) is an independent, nonprofit veterans service organization that has served active duty military personnel and veterans since 1981. NVLSP strives to ensure that our nation honors its commitment to its 22 million veterans and active duty personnel by ensuring they have the benefits they have earned through their service to our country. NVLSP has represented veterans in lawsuits that compelled enforcement of the law where the VA or other military services denied benefits to veterans in violation of the law.  NVLSP’s success in these lawsuits has resulted in more than $5.2 billion dollars being awarded in disability, death and medical benefits to hundreds of thousands of veterans and their survivors. NVLSP 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.
Media contact:
For NVLSP: Patty Briotta, office 202-621-5698, patty@nvlsp.org

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