Released 1/30/23 | Tags: Agent Orange, Class Actions, Toxic Exposures, Veteran's Benefits
VA Admits NVLSP Nehmer Class Action Required Payment of Over $201 Million in Retroactive Benefits to More Than 6,900
Blue Water Navy Vietnam Veterans and Their Survivors in 2021-2022
FOR IMMEDIATE RELEASE: January 30, 2023
WASHINGTON – As a result of the November 5, 2020 Order of the U.S. District Court for the Northern District of California, the U.S. Department of Veterans Affairs (VA) recently reported to the National Veterans Legal Services Program’s (NVLSP) that since 2021, it had paid nearly $201 million in retroactive benefits to 6,922 Blue Water Navy Vietnam Veterans and their survivors. The VA status reports documenting these payments were required by the District Court Order to enforce the 32-year-old Consent Decree secured by NVLSP as class counsel in Nehmer v. U.S. Department of Veterans Administration (VA). NVLSP’s efforts were assisted by pro bono counsel Paul Hastings LLP.
The November 5 Order of the U.S. District Court ruled in favor of thousands of veterans who served within 12 nautical miles of the coast of Vietnam during the Vietnam era (known colloquially as Blue Water Navy Vietnam Veterans) and their survivors in response to the motion filed by NVLSP attorneys to enforce the decades- old Class Action Consent Decree in Nehmer. The Court ordered the VA to automatically engage in a two-step process. First, the VA was compelled to identify the more than 60,000 previously denied disability and death compensation claims that may have been filed by a Blue Water Vietnam Veteran or the survivor of such a veteran. Second, the Court ordered the VA automatically to re-decide all these cases to determine whether the veteran served within the territorial seas of Vietnam (which equates to within 12 nautical miles of the coast of Vietnam), and to pay retroactive compensation in those cases in which the VA finds that the veteran served within the territorial seas.
The November 5 Order improves upon the relief provided in the Blue Water Navy Vietnam Veterans Act of 2019 (BWN ACT) which granted the presumption that veterans who served within 12 nautical miles of the coast of Vietnam during the Vietnam era were exposed to toxic herbicides such as Agent Orange.
First, the BWN Act did not automatically require the VA to assess whether any Blue Water Vietnam veteran or survivor is entitled to retroactive compensation based on a prior denial of benefits. The BWN Act requirement to pay retroactive compensation is triggered only if a Blue Water Vietnam veteran or survivor 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 denied claim.
In contrast, the November 5 Order required the VA to automatically identify and re-decide the cases of veterans and survivors who were previously denied retroactive benefits under the Nehmer Consent Decree based on the erroneous ground that the veteran must have served on the land mass or inland waterways of Vietnam to qualify for the presumption of herbicide exposure. If the VA determined in this new review that the veteran served within the territorial seas of Vietnam, the Order required the VA to pay retroactive compensation to the veteran or survivor regardless of whether the individual affirmatively filed a new claim.
Second, the BWN Act did not require the VA to pay retroactive compensation if the Blue Water Vietnam Veteran whose prior claim was wrongly denied is now deceased. Even if a survivor or the estate of the deceased Blue Water Vietnam Veteran affirmatively files a VA claim for the veteran’s retroactive compensation due because the veteran served in the territorial seas of Vietnam, the BWN Act allows the VA to deny the claim.
In contrast, the November 5 Order requires the VA to pay the retroactive compensation owed to the deceased veterans found by VA to have served within 12 nautical miles of the coast of Vietnam to the survivors in the following payment order: (1) the surviving spouse; (2) the surviving children in equal shares (regardless of the age of the surviving children), or (3) the estate of the deceased Blue Water veteran.
“We are gratified that Blue Water Navy Vietnam Veterans and their survivors are finally receiving their long overdue compensation for all that they have suffered,” said NVLSP Co-Founder and Special Counsel Bart Stichman.
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 three decades, the VA has now paid an aggregate of more than $4.9 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 $5.4 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