Tuesday, July 31, 2007

VA AGENT ORANGE CLAIMS UPDATE

VA AGENT ORANGE CLAIMS UPDATE 01: 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 as a result of exposure to Agent Orange. Recently, there have been two important developments. This article provides advice about the steps you should take if you represent yourself, a veteran, or a survivor who may be affected:

1.) CLL Claims: 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 16 OCT 03. 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 [Nehmer v. U.S. Veterans Administration, 32 F. Supp. 2d 1175 (N.D. Cal. 1999)] 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 with the exception of claims that were finally denied before 25 SEP 85. VA took the position that when it was service connected CLL the Nehmer rules did not apply to CLL claims. As a result, the VA assigned an effective date no earlier than 16 OCT 03 whenever the VA granted a disability or DIC claim based on CLL even if the first CLL claim was filed before 16 OCT 03.

The Nehmer lawsuit is a class action brought by National Veterans Legal Services Program (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 1 DEC 05, 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 16 OCT 05. The VA recently appealed the December 1st decision to the court of appeals. If you know of a Vietnam veteran or survivor who filed a CLL claim before 16 OCT 03, you should contact NVLSP attorney Rick Spataro at (202) 265-8305, ext. # 149 or rick_spataro@nvlsp.org. 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.

2.) Blue Water Disability/DIC claims: 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 (blue water vets) 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 offshore and their survivors were granted disability or DIC benefits based on an Agent Orange-related disease. However, in FEB 02 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. As a result of the policy change the VA has been denying claims filed by blue water vets for Agent Orange related diseases since FEB 02. 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 10 JAN 06, 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. In any case in which you are representing yourself or another blue water Navy veteran/survivor on a claim based on an Agent Orange-related disease, you should keep the claim alive by filing a timely Notice of Disagreement (NOD) after the VA denial, and a timely substantive appeal after the Statement of the Case (SOC). If the BVA denies the claim, contact NVLSP attorney Rick Spataro so that a timely appeal can be filed with the Veterans Court. This is a prudent move 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 a clear and unmistakable error even if NVLSP were to win its appeal.

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