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newsletter articles
OCTOBER 2010
Vietnam Veterans win as the Veterans Administration Recognizes
Three New Diseases Associated to Agent Orange Exposure
National Veterans Legal Services Program (NVLSP)
and other veterans service organizations scored a victory for Vietnam
veterans suffering from diseases associated with Agent Orange exposure.
On August 31, 2010, based on the lawsuit filed by NVLSP and other
veterans organizations, the United States Court of Appeals for the
Federal Circuit ordered the Department of Veterans Affairs (VA) to
publish a final regulation which added
ischemic heart disease,
Parkinson’s disease
and chronic
B-cell leukemias
to the list of diseases that are linked to exposure to Agent Orange.
Background
In 1989, a federal court ruled in National Veterans Legal Services
Program’s favor in the landmark Agent Orange class action lawsuit
Nehmer v. U. S. Veterans Administration.
The court ruling in this case invalidated Veterans Administration (VA)
rules prohibiting benefits based on Agent Orange exposure for any
disease other than a minor skin condition. The court also required the
VA to periodically issue replacement rules based on the emerging
scientific evidence on Agent Orange.
Whenever a new disease is recognized by the VA as associated with Agent
Orange exposure, the VA must; identify all Vietnam veterans and their
survivors who were previously denied benefits for that disease and
individually review each of their cases and pay benefits retroactive to
the date the VA received the original claim that was previously denied.
On five occasions since the 1989 court ruling, the VA has recognized
that one or more additional diseases are associated with Agent Orange
exposure. Each time, the VA was required to identify and review the
individual cases of Vietnam veterans and survivors who were previously
denied benefits for these newly recognized diseases.
The Fight for Veterans Benefits
In October, 2009 the Secretary of Veterans Affairs announced that the VA
would recognize three additional diseases as associated with Agent
Orange exposure: ischemic heart disease, Parkinson’s disease, and
B-cell leukemias. But as time went by it seemed that the VA was
delaying the publication of the regulations identifying these new
diseases, which meant that Vietnam veterans were loosing benefits they
had earned for their service to their country.
National Veterans Legal Services Program (NVLSP)
decided that it was time to step in and take action on behalf of our
veterans. On March 1, 2010, NVLSP and
Chadbourne & Parke LLP
sent a letter to the VA requesting that the VA Secretary publish an
interim regulation establishing a presumption of service connection for
Vietnam veterans suffering from ischemic heart disease, Parkinson’s
disease, and chronic B-cell leukemias.
The VA responded by letter on March 11, 2010 stating that a notice of
proposed rule-making to establish the presumption of service connection
had been drafted but that the “Administration” had determined the
proposed regulation was subject to mandatory review by the Office of
Management and Budget.
On
March 16, 2010,
Chadbourne & Parke LLP
and NVLSP filed a lawsuit on behalf of NVLSP, Paralyzed Veterans of
America, the Non-Commissioned Officers Association, and the United
Spinal Association/VetsFirst requesting that the U.S. Court of Appeals
for the Federal Circuit review the VA’s failure to publicize a rule
establishing presumptive service connection. The basis for the lawsuit
was that the rules associated with the 1989 decision set a cumulative
deadline of 210 days following receipt of a report by the Institute of
Medicine on the effects of Agent Orange to issue final regulations
establishing presumptive service connection for any diseases linked to
Agent Orange exposure in the report. NVLSP and the other parties
alleged that the deadline for circulation of the final regulations
passed on February 19, 2010.
On March 19, 2010, the parties filed a motion for a preliminary
injunction o direct the Secretary to issue an interim rule and proposed
final rule. Shortly thereafter, on March 25, 2010, the VA issued the
proposed rule.
Pursuant to the Agent Orange Act, within 90 days of issuing the proposed
regulation, the VA must issue final regulations establishing presumptive
service connection for the new disabilities.
On April 16, 2010, the Federal Circuit decided that because the VA
belatedly issued the proposed regulation, the 90-day time period to
publish a final rule had not elapsed. Thus, the Court dismissed NVLSP’s
lawsuit, but stated that they had a right to return to Court if the VA
were to miss the June 23, 2010 deadline. The VA missed the June 23, 2010
deadline for publishing the final rule.
On July 14, 2010, Chadbourne & Parke and NVLSP, on behalf of NVLSP and
other petitioners, filed a “Petition for a Writ of Mandamus” requesting
that the Federal Circuit direct the VA to immediately issue a final rule
or, in the alternative, an interim final rule, based on the VA’s
proposal to establish presumptive service connection for Vietnam
veterans suffering from ischemic heart disease, Parkinson’s disease, or
chronic B-cell leukemias.
On August 2, 2010, the Federal Circuit issued an order granting the writ
of mandamus and stating that review by the Office of Management and
Budget cannot interfere with the issuance of a final rule. The Court
directed the Secretary to issue a final rule within 30 days from the
filing of the order.
Victory
On August 31, 2010, pursuant to the Federal Circuit’s Order, the
VA published a final regulation
in the
Federal Register
which expanded the list of health problems VA will presume to be related
to Agent Orange to include ischemic heart disease, Parkinson’s disease,
or chronic B-cell leukemias.
With this victory, the VA will now begin to review almost 150,000 cases
and estimates that there may be an aggregate of $12.3 billion in
retroactive compensation to these veterans or their survivors. As class
counsel, NVLSP will monitor VA adjudications to make sure Vietnam
veterans and their survivors receive the benefits they need and deserve.
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