NVLSP Seeks Class Action Order Requiring VA to Automatically Redecide Thousands of Benefit Claims Denials for Agent Orange-Related Diseases Filed by Vietnam Veterans Who Served in the Territorial Sea of Vietnam
--- More than $4.6 billion in retroactive compensation has been paid to Vietnam veterans who set foot on land but nothing to Blue Water Vietnam Veterans---
WASHINGTON – In an effort to secure retroactive benefits for thousands of so-called Blue Water Vietnam veterans, on July 10, 2020, the National Veterans Legal Services Program (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.
The 1991 Consent Decree applies to a class consisting of hundreds of thousands of Vietnam veterans and their survivors who applied to the VA for service connected disability and death benefits due to exposure to Agent Orange, the toxic herbicide used by the U.S. government during the Vietnam War. That Decree required the VA to pay retroactive benefits to members of the class whenever, during the period from 1991 to 2015, the VA recognized an additional disease is associated with exposure to Agent Orange.
Since 2002, the VA paid under the terms of the Consent Decree more than $4.6 billion in retroactive benefits to Vietnam veterans and their survivors if the veteran set foot on the land mass of Vietnam—but absolutely no benefits to Vietnam veterans who served on ships in the territorial sea of the Republic of Vietnam. The VA’s policy was that these “Blue Water” Vietnam veterans were not covered by the language of the Agent Orange Act of 1991, which provided that veterans who “served in the Republic of Vietnam” during the Vietnam era “shall be presumed to have been exposed during such service” to Agent Orange. But in 2019, in Procopio v. Wilkie, the U.S. Court of Appeals for the Federal Circuit rejected VA’s interpretation of that language and ruled that Congress intended that all Vietnam veterans who served on ships in the territorial sea of Vietnam—within 12 nautical miles of the coast—be entitled to the presumption of exposure.
NVLSP’s enforcement motion seeks injunctive relief requiring the VA to redecide the thousands of prior decisions that denied retroactive benefits under the Nehmer Consent Decree due to the VA policy rejected in Procopio v. Wilkie.
“The VA’s refusal to correct the wrong it has perpetrated since 2002 means that Blue Water Vietnam veterans and their survivors will continue to be deprived of the benefits to which they are entitled under the Consent Decree. Some of these veterans have already waited far too long for their country to do right by them. For many of these veterans and their survivors, the overdue compensation could be life-changing,” said National Veterans Legal Services Program Executive Director Bart Stichman.