VA Identifies More Than 60,000 “Blue Water” Vietnam Veterans and Their Survivors Whose Cases VA Must Review to Determine Entitlement to Retroactive Benefits for Agent Orange-Related Diseases
- Automatic Review Required by November 5, 2020 District Court Order Enforcing 30-Year-Old Nehmer Class Action Consent Decree-
FOR IMMEDIATE RELEASE: April 12, 2021
WASHINGTON- In response to the November 5, 2020 Order of the U.S. District Court for the Northern District of California, the VA recently identified 60,492 so-called “Blue Water” Navy Vietnam Veterans and their survivors whose cases VA must automatically review to determine whether these individuals are entitled to retroactive compensation for their Agent Orange-related diseases. The District Court determined last November that this automatic review was necessary to enforce the 30-Year Old Class Action Consent Decree obtained by the National Veterans Legal Services Program (NVLSP) in Nehmer v. U.S. Department of Veterans Administration (VA). NVLSP’s enforcement efforts were aided by the pro bono assistance of Paul Hastings LLP.
The November 5 Order now requires the VA to:
1. Review the VA claims file in these 60,492 cases and issue a decision that determines:
• o (a) whether the veteran served in the territorial waters of the Republic of Vietnam during the Vietnam War and, if so,
• o (b) the amount of retroactive compensation, if any, the veteran or the veteran’s survivor (or, if the veteran or survivor is deceased, the estate of the deceased veteran or survivor) is entitled for Agent Orange-related diseases under the terms of Nehmer Consent Decree; and
2. Provide NVLSP with a copy of all of the 60,492 decisions that VA issues, and
• (c) each notice letter sent to the class members and coding sheet associated with such replacement decisions.
The November 5 Order in Nehmer fills a major gap that exists in the Blue Water Navy Vietnam Veterans Act of 2019 (BWN Act), which codified the presumption that veterans who served within 12 nautical miles of the coast of Vietnam during the Vietnam era (known colloquially as Blue Water Vietnam Veterans) were exposed to toxic herbicides such as Agent Orange. The BWN Act does not automatically require the VA to assess if any Blue Water Vietnam veteran or survivor is entitled to 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.
On the other hand, the November 5 Order requires VA to automatically review 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.
The November 5 Order also fills another gap in the BWN Act. If a veteran was previously denied retroactive benefits because the veteran did not set foot on land or serve in the inland waterways of Vietnam, the BWN Act does not require VA to pay retroactive compensation to the survivors if the veteran is now deceased. But under the November 5 Order, the retroactive compensation owed to the deceased veterans who served within 12 nautical miles of the coast of Vietnam must be paid 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), and (3) the estate of the deceased Blue Water veteran.
“We call on VA to expedite its review of these 60,492 cases. Retroactive benefit payments in these cases are long overdue,” said National Veterans Legal Services Program (NVLSP) Executive Director Bart Stichman. “Most of these Blue Water Vietnam veterans and their survivors were wrongly denied retroactive compensation between 2010 and 2014.” There is no valid reason for further delay.”
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