NVLSP Seeks Class Action Order Requiring VA to Automatically Redecide Thousands of Benefit Claims Denials for Agent Orange-Related Diseases Filed by Vietnam Veterans Who Served in the Territorial Sea of Vietnam
--- More than $4.6 billion in retroactive compensation has been paid to Vietnam veterans who set foot on land but nothing to Blue Water Vietnam Veterans--
WASHINGTON – In an effort to secure retroactive benefits for thousands of so-called Blue Water Vietnam veterans, on July 10, 2020, the National Veterans Legal Services Program (NVLSP) filed a motion for enforcement of the 29-Year Old Class Action Consent Decree in Nehmer v. United States Veterans Administration in the U.S. District Court for the Northern District of California. The motion was filed with the pro bono assistance of Paul Hastings LLP.
The 1991 Consent Decree applies to a class consisting of hundreds of thousands of Vietnam veterans and their survivors who applied to the VA for service connected disability and death benefits due to exposure to Agent Orange, the toxic herbicide used by the U.S. government during the Vietnam War. That Decree required the VA to pay retroactive benefits to members of the class whenever, during the period from 1991 to 2015, the VA recognized an additional disease is associated with exposure to Agent Orange.
Since 2002, the VA paid under the terms of the Consent Decree more than $4.6 billion in retroactive benefits to Vietnam veterans and their survivors if the veteran set foot on the land mass of Vietnam—but absolutely no benefits to Vietnam veterans who served on ships in the territorial sea of the Republic of Vietnam. The VA’s policy was that these “Blue Water” Vietnam veterans were not covered by the language of the Agent Orange Act of 1991, which provided that veterans who “served in the Republic of Vietnam” during the Vietnam era “shall be presumed to have been exposed during such service” to Agent Orange. But in 2019, in Procopio v. Wilkie, the U.S. Court of Appeals for the Federal Circuit rejected VA’s interpretation of that language and ruled that Congress intended that all Vietnam veterans who served on ships in the territorial sea of Vietnam—within 12 nautical miles of the coast—be entitled to the presumption of exposure.
NVLSP’s enforcement motion seeks injunctive relief requiring the VA to redecide the thousands of prior decisions that denied retroactive benefits under the Nehmer Consent Decree due to the VA policy rejected in Procopio v. Wilkie.
“The VA’s refusal to correct the wrong it has perpetrated since 2002 means that Blue Water Vietnam veterans and their survivors will continue to be deprived of the benefits to which they are entitled under the Consent Decree. Some of these veterans have already waited far too long for their country to do right by them. For many of these veterans and their survivors, the overdue compensation could be life-changing,” said National Veterans Legal Services Program Executive Director Bart Stichman.
This is the fourth time that NVLSP has filed a motion for enforcement to obtain compliance with the 1991 Consent Decree. The District Court granted all three prior enforcement motions. As a result of these successful enforcement actions, NVLSP identified and the VA paid more than 5,100 Vietnam veterans and their survivors an aggregate of over $91 million in retroactive benefits.
The Blue Water Navy Vietnam Veterans Act of 2019 (BWN Act) codified the presumption of herbicide exposure for Blue Water Vietnam veterans. However, the BWN Act does not automatically require the VA to assess if any Blue Water Vietnam veteran or survivor is eligible for retroactive compensation. The BWN Act requirement to pay retroactive compensation is triggered only if a Blue Water Vietnam veteran affirmatively files a claim after January 1, 2020 and the veteran specifically identifies the Agent-Orange related disease that was the subject of the earlier claim.
The BWN Act does not completely correspond to the Nehmer Consent Decree. Some Blue Water Vietnam veterans and their survivors may be eligible for retroactive compensation under the Consent Decree but not eligible under the BWN Act and vice versa. As a result, the House Report on the BWN Act states that “Nothing in [the BWN Act] intends to limit the rights of Nehmer class members who seek relief for benefits under the Nehmer Consent Decree.”
Background on Nehmer Case
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. Since 1991, the VA has 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 two 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.
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.
For NVLSP: Patty Briotta, office 202-621-5698, firstname.lastname@example.org