News

Chadbourne Scores Pro Bono Victory For Vietnam Veterans Suffering From Illnesses Caused By Agent Orange Exposure

FEDERAL COURT OF APPEALS ORDERS VA TO PUBLISH NEW COMPENSATION RULES WITHIN 30 DAYS

August 6, 2010

Chadbourne Represents Paralyzed Veterans of America, National Veterans Legal Services Program,
Non Commissioned Officers Association, & United Spinal Association/VetsFirst

Chadbourne & Parke LLP announced today that it had scored a significant victory for Vietnam veterans suffering from diseases caused by exposure to Agent Orange. In a proceeding in which the firm represented a coalition of veterans service organizations, the U.S. Court of Appeals for the Federal Circuit granted an Order on August 2, 2010, directing the Department of Veterans Affairs to issue, within 30 days, new rules for paying disability benefits to Vietnam veterans stricken with ischemic heart disease, Parkinson’s disease, or B-cell leukemia.

Chadbourne filed the petition for a writ of mandamus on a pro bono basis on behalf of the National Veterans Legal Services Program (NVLSP), the Paralyzed Veterans of America, the Non Commissioned Officers Association, and United Spinal Association/VetsFirst. The petition demanded immediate action by the VA to allow thousands of Vietnam veterans suffering from any of the three illnesses to obtain disability benefits, because the VA had missed a series of deadlines created by the Agent Orange Act of 1991. The petition alleged that in total, the regulations were overdue by more than 5 months based on the deadlines set by Congress.

The VA announced its decision to allow disability compensation to be paid to Vietnam veterans with any of the three diseases in October 2009, based on a report issued by the Institute of Medicine linking the three diseases to Agent Orange exposure. But in the lawsuit, the VA argued that issuance of the rule had been delayed because an Executive Order requires the rule to be cleared by the Office of Management and Budget and that the rule was still under review by OMB. A unanimous three-judge panel rejected the VA's contention, citing concerns that the delay was "an affront to our tradition of legislative supremacy and constitutional separated powers." The Court ruled that OMB review "cannot interfere with a clear directive of Congress . . . ." The Court also stated that the order was needed to prevent additional delay in the payment of benefits to veterans.

By the VA's own estimate, the rule will enable 200,000 Vietnam veterans to begin receiving disability benefits.

"These benefits are long over-due. Congress passed the Agent Orange Act precisely because it recognized the need to protect Vietnam veterans who are suffering from diseases caused by Agent Orange," said Thomas E. Riley, head of firm's litigation department. "We are very pleased to achieve this result on behalf of the many thousands of veterans who are afflicted because of their service to our country."

In addition to Mr. Riley, the Chadbourne team working on the matter includes Michael R. Kelly, Paige Willan, Laura Rowntree, and Christopher Cusmano.

Bart Stichman, co-executive director of NVSLP, served as counsel for the veterans groups with Chadbourne. He commented, "We filed this request because veterans who have given so much for our country, should not have their compensation claims delayed because two federal agencies can't get their act together and comply with the law. Today's court order is a victory for our Vietnam veterans, and sends a strong message to federal bureaucrats – that bureaucratic delays will not be tolerated."

Even though the final rule has not been published, NVLSP and other veterans groups have urged veterans suffering from one of the three diseases to file a claim immediately, because a Vietnam veteran or survivor who files a claim before the final rule is published may be eligible for benefits retroactive to the date the claim is filed, even if the rule is published later. However, for veterans who delay filing their claims, the date of the publication of the final rule is important because they cannot receive retroactive benefits for any period prior to the date of publication. By requiring the VA to publish a final rule within 30 days, the ruling helps protect these veterans.