Nehmer v. U.S. Department of Veterans Affairs:
Nehmer v. U.S. Department of Veterans Affairs is class action lawsuit brought by National Veterans Legal Services Program (NLVP) 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 for 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’s lawyers as the lawyers for the class. In an order issued 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, attorneys negotiated a favorable consent decree with the VA in Nehmer. The Nehmer consent decree requires VA, whenever it recognizes that the emerging scientific evidence shows that a positive relationship exists between Agent Orange exposure and a new disease, to (a) identify all claims based on the newly recognized disease that were previously denied and then (b) pay disability and death benefits to these claimants, retroactive to the initial date of claim. During the period from 1991-2010, VA recognized that scientific studies show that there is a positive association between Agent Orange exposure and diabetes, ischemic heart disease, Parkinson’s disease, and more than a dozen different types of cancer. As a result of the Nehmer consent decree, over the last three decades, VA has paid an aggregate of more than $4.5 billion in retroactive disability and death benefits to hundreds of thousands of Vietnam veterans and their surviving family members.
The last time VA recognized additional diseases as related to Agent Orange occurred in 2010, when VA recognized ischemic heart disease, Parkinson’s disease, and chronic B-cell leukemias. VA has already reviewed more than 140,000 past claims for these diseases and is in the process of reviewing more than 40,000 additional past claims.
In an effort to secure retroactive benefits for thousands of so-called Blue Water Vietnam veterans, on July 10, 2020, 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.
On November 5, 2020 the U.S. District Court for the Northern District of California ruled in favor of thousands of so-called Blue Water Navy Vietnam Veterans and their survivors in response to the motion filed by attorneys from NVLSP to enforce the 29-year old class action Consent Decree in Nehmer v. U.S. Department of Veterans Administration . The Court ordered the VA to automatically readjudicate thousands of benefits claims that the Court found had been wrongly denied under the Consent Decree. The Court also ordered the VA to pay retroactive compensation if it finds the veteran served in the territorial seas of Vietnam. As of November 2021, the plaintiffs filed a motion to enforce the original settlement agreement, requesting the VA to automatically re-evaluate certain claims denied under the previous regulations.
Nehmer Class Members:
Nehmer class members include not just eligible veterans, but also survivors of eligible veterans (e.g., spouse, children, parents). This means that if the veteran dies prior to receiving payment for any Nehmer-related benefits, VA will pay any unpaid retroactive benefits to the veterans’ spouse, child(ren), or parent(s). And if the veterans’ survivors are deceased, retroactive benefits may be paid to any of the “class members’” surviving spouse, child(ren), or parent(s).
Nehmer Eligibility Requirements for Veterans:
For a veteran or their survivor to be eligible for benefits under Nehmer, the veteran must have:
Served in Vietnam; and
Filed a claim and/or had a claim denied, which includes a claim inferred (see “What counts as a claim?” section) for one of the three new presumptive conditions; and
That claim was filed, denied, or inferred between September 25, 1985 and August 31, 2010, the date VA published the final regulation; and
Note: If the claim was filed before September 25, 1985 but still pending or on appeal on or after September 25, 1985, the veteran is still eligible.
The veteran is diagnosed with one of the presumptive diseases, or has a diagnosis that could be reasonably interpreted as one of the covered diseases.
Unfortunately, only veterans with duty or visitation (i.e. “boots on the ground”) in the Republic of Vietnam, or on its inland waterways, between January 9, 1962, and May 7, 1975, make up the class of veterans affected by the Nehmer review. Blue Water Navy Veterans may qualify under the Nehmer class as well. This means that veterans who served in the Korean DMZ or Thailand are not considered part of the Nehmer class although a service connection may still be possible.
Nehmer Eligibility Requirements for Survivors:
If a Nehmer class member dies before receiving benefits, VA will pay any unpaid retroactive benefits to the first individual listed below that is in existence at the time of payment:
The class member’s spouse, regardless of current marital status. A spouse is the person who was legally married to the class member at the time of the class member’s death.
The class member’s child(ren), regardless of age or marital status. If more than one child exists, payment of the retroactive benefits owed shall be divided into equal shares.
The class member’s parent(s), regardless of dependency. If both parents are alive, half the retroactive benefits owed will be paid to each parent.
The class member’s estate
Reference:
NVLSP (National Veterans Legal Services Program): https://www.nvlsp.org/what-we-do/class-actions/nehmer-agent-orange-lawsuit
Federal Register (Awards Under the Nehmer Court Orders): https://www.federalregister.gov/documents/2003/08/25/03-21646/effective-dates-of-benefits-for-disability-or-death-caused-by-herbicide-exposure-disposition-of
