NVLSP Statement on Conclusion in VA OIG Report that VA Failed to Identify Tens of Thousands of Vietnam Veterans Eligible for Retroactive Benefits
ARLINGTON, VA – The National Veterans Legal Services Program (NVLSP) issued the following statement regarding the recent report from the Department of Veterans Affairs (VA) Office of the Inspector General (OIG), VBA Did Not Identify All Vietnam Veterans Who Could Qualify for Retroactive Benefits.
“It is an outrage that the VA continues to deny tens of thousands of Vietnam veterans exposed to Agent Orange and their survivors their rightful benefits,” said Bart Stichman, Special Counsel and Co-Founder of NVLSP. “The class action court order VA agreed to 33 years ago required VA in 2021 to identify and redecide the claims of approximately 100,000 Vietnam veterans and their survivors who previously sought benefits for three diseases, including bladder cancer, that were recently added to the list of Agent Orange-related diseases. But the OIG report concludes that VA neglected to redecide the claims of tens of thousands of veterans who are likely entitled under the 1991 agreement to hundreds of millions of dollars in retroactive compensation.”
This report documents the latest example of VA’s failure to fully comply with the class action order to which VA agreed in 1991. In 2007, after finding that the VA again had violated that class action order, the U.S. Court of Appeals for the Ninth Circuit stated:
What is difficult for us to comprehend is why the [VA], having . . . agreed to a consent order [many] years ago, continues to resist its implementation so vigorously, as well as to resist equally vigorously the payment of desperately needed benefits to Vietnam war veterans who fought for their country and suffered grievous injury as a result of our government’s own conduct . . . . We would hope that . . . our government will now respect the legal obligations it undertook in the Consent Decree . . . , that obstructionist bureaucratic opposition will now cease, and that our veterans will finally receive the benefits to which they are morally and legally entitled.
Unfortunately, that hope has gone unfulfilled. “Although the VA disagrees with some of the findings of the Inspector General’s report, even under the VA’s interpretation of the Consent Order a large majority of the cases that VA overlooked should have been readjudicated,” Stichman added. “The systemic failures that have led to Vietnam veterans being unjustly denied their rightful benefits continues to be a national tragedy.”
The VA-OIG report examined the eligibility for VA benefits based on the landmark case of Nehmer v. U.S. Department of Veterans Affairs, a 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 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 lawyers as lawyers for the class. 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
