NVLSP Impact Report

It required that whenever the VA recognized that an additional disease was related to herbicides under the Agent Orange Act, the VA had to: • Identify all Vietnam veterans and their survivors who had previously filed a claim based on the newly recognized disease • Readjudicate the prior claim and pay benefits retroactive to the date the prior claim was filed As a result of the first NAS report, the VA was forced to recognize that six types of cancer and one other disease were related to Agent Orange. But what we did not realize at the time was that our court victory was only the first of many steps NVLSP would need to take over the next 27 years to ensure that the benefits owed by the VA were actually paid. From 1995 on, the VA “interpreted” the Nehmer consent decree—wrongly—in various ways that would have blocked more than 100,000 veterans and their surviving family members from receiving any retroactive benefits. On four separate occasions, NVLSP had to return to court to enforce the consent decree over the VA ’s vigorous objection. For example, in response to NVLSP ’s first enforcement motion, the court overturned a VA directive prohibiting retroactive benefits under the consent decree unless the veteran or survivor had used the magic words “Agent Orange” in the prior claim. Thereafter, when Congress extended the sunset date of the Agent Orange Act from 2001 to 2015, the VA issued a directive “interpreting” the consent decree to expire in 2001—so that retroactive benefits would not be paid for any disease recognized by the VA after that year. When NVLSP won its enforcement motion challenging this directive, the VA appealed to the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit unanimously rejected the VA ’s interpretation in 2007, stating:


When the government fails to keep its promise to disabled veterans, it is often due to systemic shortcomings that impact a large number of veterans.The source of the systemic problem can usually be traced to a rule or practice of the Department of Veterans Affairs or a military department. The most successful tool NVLSP has used to force the government to correct systemic barriers to justice is federal court litigation against the government. Many of these successes have come in class actions on behalf of thousands, even hundreds of thousands, of veterans and their survivors. One of these triumphs — NVLSP ’s Agent Orange class action— is detailed below. Decades of Forcing the VA to Comply with NVLSP’s Legal Victory on Agent Orange By 1991, NVLSP thought it had achieved its greatest litigation victory. Two years earlier, the U.S. district court in NVLSP ’s Nehmer v. U.S. Veterans Administration class action lawsuit invalidated the VA rule calling for the denial of nearly all claims filed by Vietnam veterans and their survivors based on exposure to the herbicide Agent Orange.The court agreed with NVLSP that the VA had unlawfully stacked the deck in its rulemaking by insisting that benefits could not be paid unless the scientific evidence showed a strict cause-and-effect relationship between herbicide exposure and the disease in question—an unlawfully high standard of proof. The court ordered the VA to promulgate new rules using the lower standard of proof that Congress intended.The Agent Orange Act was then enacted to require the VA , before finalizing its new rules, to consider periodic reports analyzing the scientific evidence prepared by the independent National Academy of Sciences ( NAS ). Finally, in 1991, the court approved a historic consent decree in the Nehmer class action.

Policing the Promise NVLSP provides free legal services to help veterans, service members, and their families secure disability benefits from the Department of Veterans Affairs and the United States Armed Forces. NVLSP ’s individual representation services include class actions and appeals to the U.S. Court of Appeals for Veterans Claims ( CAVC ).

What is difficult for us to comprehend is why the [VA], having…agreed to a consent order some 16 years ago, continues to resist its implementation so vigorously, as well as to resist equally vigorously the payment


National Veterans Legal Services Program H

Impact Report

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