Nehmer v. U.S. Department of Veterans Affairs

Agent Orange Lawsuit

Nehmer v. U.S. Department of Veterans Affairs is class action lawsuit brought by NVLSP attorneys in 1986 to challenge a VA regulation, former 38 C.F.R. 3.311a, 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 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, 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, VA has paid an aggregate of more than $4.5 billion in retroactive disability and death benefits to hundreds of thousands of Vietnam veterans and their surviving family members.

The last time VA recognized additional diseases as related to Agent Orange occurred in 2010, when VA recognized ischemic heart disease, Parkinson’s disease, and chronic B-cell leukemias.  VA has already reviewed more than 140,000 past claims for these diseases and is in the process of reviewing more than 40,000 additional past claims.

In an effort to secure retroactive benefits for thousands of so-called Blue Water Vietnam veterans, on July 10, 2020, 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.

On November 5, 2020 the U.S. District Court for the Northern District of California ruled in favor of thousands of so-called Blue Water Navy Vietnam Veterans and their survivors in response to the motion filed by attorneys from NVLSP to enforce the 29-year old class action Consent Decree in Nehmer v. U.S. Department of Veterans Administration (VA) . The Court ordered the VA to automatically readjudicate thousands of benefits claims that the Court found had been wrongly denied under the Consent Decree.  The Court also ordered the VA to pay retroactive compensation if it finds the veteran served in the territorial seas of Vietnam.

On May 27, 2021, Secretary of Veterans Affairs Denis McDonough announced 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.

As class counsel, NVLSP currently has a team of five attorneys and a paralegal devoted to ensuring that the Department of Veterans Affairs (VA) meets its obligations under the Nehmer Court Orders. These NVLSP attorneys work with class members to ensure that the VA assigns them the correct effective date for their benefits and pays them the proper amount of retroactive compensation.  Over the years, NVLSP’s attorneys have identified more than 2,000 cases in which VA has shortchanged individual Vietnam veterans or their survivors on the amount of retroactive benefits owed, resulting in payment of more than $50 million in additional benefits.   

Vietnam veterans and their survivors who believe that VA has not assigned them the correct effective date for the award of benefits for their Agent Orange-related disease can contact NVLSP’s Nehmer team at the team’s toll-free hotline number – 855-333-0677.