Perseverance Pays Off
When the government fails to keep its promise to disabled veterans, it is often due to systemic shortcomings that impact a large number of veterans. The source of the systemic problem can usually be traced to a rule or practice of the Department of Veterans Affairs or a military department.
The most successful tool NVLSP has used to force the government to correct systemic barriers to justice is federal court litigation against the government. Many of these successes have come in class actions on behalf of thousands, even hundreds of thousands, of veterans and their survivors. One of these triumphs — NVLSP’s Agent Orange class action — is detailed below.
Decades of Forcing VA to Comply with NVLSP’s Legal Victory on Agent Orange
By 1991, NVLSP thought it had achieved its greatest litigation victory. Two years earlier, the U.S. district court in NVLSP’s Nehmer v. U.S. Veterans Administration class action lawsuit invalidated the VA rule calling for the denial of nearly all claims filed by Vietnam veterans and their survivors based on exposure to the herbicide Agent Orange. The court agreed with NVLSP that the VA had unlawfully stacked the deck in its rulemaking by insisting that benefits could not be paid unless the scientific evidence showed a strict cause-and-effect relationship between herbicide exposure and the disease in question — an unlawfully high standard of proof.
The court ordered the VA to promulgate new rules using the lower standard of proof that Congress intended. The Agent Orange Act was then enacted to require the VA, before finalizing its new rules, to consider periodic reports analyzing the scientific evidence prepared by the independent National Academy of Sciences (NAS). Finally, in 1991, the court approved a historic consent decree in the Nehmer class action. It required that whenever the VA recognized that an additional disease was related to herbicides under the Agent Orange Act, the VA had to:
- Identify all Vietnam veterans and their survivors who had previously filed a claim based on the newly recognized disease
- Readjudicate the prior claim and pay benefits retroactive to the date the prior claim was filed
As a result of the first NAS report, the VA was forced to recognize that six types of cancer and one other disease were related to Agent Orange. But what we did not realize at the time was that our court victory was only the first of many steps NVLSP would need to take over the next 27 years to ensure that the benefits owed by the VA were actually paid. From 1995 on, the VA “interpreted” the Nehmer consent decree — wrongly — in various ways that would have blocked more than 100,000 veterans and their surviving family members from receiving any retroactive benefits.
On four separate occasions, NVLSP had to return to court to enforce the consent decree over the VA’s vigorous objection. For example, in response to NVLSP’s first enforcement motion, the court overturned a VA directive prohibiting retroactive benefits under the consent decree unless the veteran or survivor had used the magic words “Agent Orange” in the prior claim.
Thereafter, when Congress extended the sunset date of the Agent Orange Act from 2001 to 2015, the VA issued a directive “interpreting” the consent decree to expire in 2001 — so that retroactive benefits would not be paid for any disease recognized by the VA after that year. When NVLSP won its enforcement motion challenging this directive, the VA appealed to the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit unanimously rejected the VA’s interpretation in 2007, stating:
What is difficult for us to comprehend is why the [VA], having … agreed to a consent order some 16 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. … Those young Americans who risked their lives in their country’s service … are deserving of better treatment from the [VA] than they are currently receiving. We would hope that … our government will now respect the legal obligations it undertook in the Consent Decree some 16 years ago, that obstructionist bureaucratic opposition will now cease, and that our veterans will finally receive the benefits to which they are morally and legally entitled.
As a direct result of this ruling, the VA has since paid more than $4.6 billion in retroactive benefits to more than 100,000 veterans and their survivors. But the VA’s “obstructionist bureaucratic opposition” did not end with the Ninth Circuit’s ruling. Over the last 11 years, NVLSP has caught the VA violating the consent decree in many additional ways, forcing the VA to pay 4,000 veterans and their survivors a total of $97 million in additional retroactive benefits.
In other cases, NVLSP’s litigation victories have involved a challenge to the legality of a VA or military department rule that adversely affects veterans seeking benefits. NVLSP’s most important successes in both class actions and challenges to government rules are chronicled in the Timeline of Achievement section of this report.
“We hope our government will now respect [its] legal obligations [and] that obstructionist bureau-cratic opposition will now cease, and our veterans will finally receive the benefits to which they are morally and legally entitled.”— U.S. Court of Appeals for the Ninth Circuit
Individual Representation for CAVC work
Another pathway we have used to remedy systemic government wrongdoing is through an individual lawsuit challenging the denial of a veteran’s particular benefits claim. NVLSP files more than 600 individual appeals each year in the U.S. Court of Appeals for Veterans Claims (CAVC) on behalf of a veteran or survivor denied benefits by the Board of Veterans’ Appeals (BVA). Some of these denials are due to a systemic practice of dubious legality.
For example, we noticed that the BVA based its denial of disability benefits to one of NVLSP’s clients on the fact that even though the veteran had suffered from the claimed disability for years after the claim was filed, the disability had resolved itself by the time — many years later — the BVA decided the veteran’s appeal. Because we knew the BVA often used this rationale to deny claims pending for many years, we asked the court to issue a precedential decision outlawing this practice. The court agreed, ruling that for any of our nation’s veterans to be eligible for disability benefits, the veteran need only suffer from the claimed disability during some part of the multi-year period between the date the claim was filed and the date the VA was ready to issue a final decision on the claim.
A major development should expand NVLSP’s ability to challenge systemic government wrongdoing. In 1991, the newly created CAVC denied NVLSP’s petition that it adopt class action rules on the grounds that Congress had not provided it with authority to decide class actions. Twenty-five years later, in 2016, the Court of Appeals for the Federal Circuit ruled that the CAVC’s long-standing position was wrong; it has class action authority. NVLSP wasted no time in leveraging this important ruling by filing three different class actions challenging systemic VA rules and practices that violate the promise the government has made to disabled veterans.