Important Developments With Regard To Va Claims Based On Agent Orange

[Guest VetWife Advocate]

IMPORTANT DEVELOPMENTS WITH REGARD TO VA CLAIMS BASED ON AGENT ORANGE

EXPOSURE

The American Legion and the National Veterans Legal Services

Program (NVLSP) have been working closely together over the last 15

years to make sure that the VA pays all of the benefits that Vietnam

veterans and their survivors deserve due to exposure to Agent

Orange. Recently, there have been two important developments. This

article provides advice about the steps you should take if you represent

a veteran or survivor who may be affected.

A. Claims Based on Chronic Lymphocytic Leukemia (CLL)

Chronic lymphocytic leukemia (CLL) is the latest disease the VA added to

the list of diseases presumptively service connected due to Agent

Orange. The VA issued the regulation adding CLL on October 16,

2003. CLL is a malignancy (cancer) of the white blood that results from

an acquired injury to the DNA of a single cell, a lymphocyte, in the

bone marrow. This injury is not present at birth.

As a result of the Nehmer lawsuit, the VA is normally required to pay

benefits for an Agent Orange-related disease retroactive to the date the

VA received the first claim the veteran or survivor filed based on the

disease (not counting claims that were finally denied before September

25, 1985). Nehmer v. U.S. Veterans Administration, 32 F. Supp. 2d 1175

(N.D. Cal. 1999). When it service connected CLL, however, the VA took

the position that the Nehmer rules did not apply to CLL claims. As a

result, the VA assigned an effective date no earlier than October 16,

2003 whenever the VA granted a disability or DIC claim based on CLL -

even if the first CLL claim was filed before October 16, 2003.

The Nehmer lawsuit is a class action brought by NVLSP on behalf of

Vietnam veterans who were exposed to Agent Orange and their

survivors. NVLSP appealed the VA's decision concerning CLL, and on

December 1, 2005, the federal court that oversees the Nehmer lawsuit

agreed with NVLSP that the Nehmer rules do apply to CLL claims. The

court's December 1st ruling requires the VA to pay disability and DIC

benefits retroactive to the date of claim to all veterans or survivors

who filed a CLL claim before October 16, 2003. The VA recently appealed

the December 1st decision to the court of appeals.

What you should do: If you know of a Vietnam veteran or survivor who

filed a CLL claim before October 16, 2003, you should contact NVLSP

attorney Rick Spataro at 202-265-8305, ext. # 149 or

rick_spataro@nvlsp.org <mailto:rick_spataro@nvlsp.org> (there's an

underscore after rick and before spataro). NVLSP is currently trying to

get the court to require the VA to pay the retroactive benefits owed

under the December 1st order as soon as possible, even though the VA has

appealed the decision. Rick is collecting a list of all CLL claimants

who deserve an earlier effective date under the December 1st order to

present to the court.

B. Disability or DIC claims filed by Navy veterans who served in the

waters offshore Vietnam or their survivors

From 1991 to 2002, the VA took the position that Navy veterans who were

awarded the Vietnam Service Medal as a result of service in the waters

offshore Vietnam were entitled to the same presumption of exposure to

Agent Orange as veterans who set foot on land in Vietnam. As a result,

many Navy veterans who served in the waters offshore and their survivors

were granted disability or DIC benefits based on an Agent Orange-related

disease.

In February 2002, however, the VA amended VA Manual M21-1 to limit the

presumption of exposure to Agent Orange to only those veterans who

actually set foot on the land mass of Vietnam. In other words, Navy

veterans who earned the Vietnam Service Medal for service in the waters

offshore Vietnam (often called "blue water veterans"), but who never set

foot on land, were no longer entitled to the presumption of

exposure. As a result of the amended M21-1, ever since February 2002,

the VA has been denying claims for Agent Orange-related diseases filed

by blue water Navy veterans. In addition, the VA has taken action to

sever awards of service connection in some of the cases that were

granted prior to February 2002.

NVLSP has appealed to the Court of Appeals for Veterans Claims many of

the BVA decisions denying benefits to blue water veterans. NVLSP has

argued in these cases that the VA's change of position in 2002 violates

the Agent Orange Act of 1991. On January 10, 2006, a panel of the Court

heard argument in one of NVLSP's appeals and a decision on the legality

of the VA's set-foot-on-land requirement is expected some time this year.

What you should do: In any case in which you are representing a blue

water Navy veteran or a survivor of a blue water Navy veteran on a claim

based on an Agent Orange-related disease, you should keep the claim

alive by filing a timely NOD after the VA denial, and a timely

substantive appeal after the SOC. If the BVA denies the claim, contact

NVLSP attorney Rick Spataro at 202-265-8305, ext. # 149 or

rick_spataro@nvlsp.org <mailto:rick_spataro@nvlsp.org> (there's an

underscore after rick and before spataro), so that a timely appeal can

be filed with the Veterans Court. This is the best strategy because if

NVLSP wins its appeal, the VA will be required to follow the Veteran

Court's decision on the pending claim. On the other hand, if the VA's

denial of the claim becomes final, there is no guarantee that the VA

will consider the prior final denial to be CUE even if NVLSP were to win

its appeal.

PLEASE PASS ON!! Brenda