Nehmer v. US Veterans Administ

Background

This certified class action began with challenges to Department of Veterans Affairs regulations concerning disability and death compensation for Vietnam veterans and survivors whose claims arose from exposure to herbicides containing dioxin, including Agent Orange. Earlier proceedings resulted in a consent decree requiring the Department of Veterans Affairs to identify and automatically reconsider certain previously denied claims whenever the agency recognized an additional disease as presumptively connected to herbicide exposure.

The decree applied to veterans eligible for benefits under the Agent Orange Act of 1991. The agency had interpreted that law as excluding “blue-water Navy veterans”—those who served aboard ships in Vietnam’s territorial waters but did not set foot on Vietnam’s landmass or serve in its inland waterways. The Federal Circuit later held in a separate proceeding that the statute included blue-water veterans, and the agency accepted that ruling.

Issue

The issue was whether the consent decree’s automatic-readjudication requirement covered blue-water veterans, or instead applied only to veterans who had served on Vietnam’s landmass or in its inland waterways.

Analysis

The court concluded that the decree covered all veterans entitled to benefits under the relevant statutes, including blue-water veterans. It reasoned that the meaning of service “in the Republic of Vietnam” had been settled to include service in the country’s territorial waters. Because the decree’s purpose was to provide automatic reconsideration to all veterans covered by the statutes, the court found that the decree extended to blue-water veterans as well.

The court also relied on the agency’s conduct during the first eleven years of the decree. During that period, the agency provided automatic reconsideration to veterans who had received a Vietnam service medal, which included blue-water veterans. The court treated that past practice as the parties’ practical interpretation of the decree and rejected the agency’s later position that the earlier practice was a mistake.

The court rejected the agency’s argument that the plaintiffs waited too long to raise the issue. It found that the Federal Circuit’s later decision had recently resolved the underlying blue-water question and that class counsel acted reasonably by raising the issue after that decision. The court also concluded that it retained jurisdiction over the case because the lawsuit had been filed before later limits on judicial review of Department of Veterans Affairs regulations took effect.

Disposition

The court granted plaintiffs’ motion to the extent stated in the order. It ordered the Department of Veterans Affairs to, within 120 days, identify all consent-decree readjudication decisions in which compensation was denied because the veteran had not set foot on Vietnam’s landmass or served in its inland waterways. Within 240 days, the agency must issue replacement decisions determining whether each veteran served in Vietnam’s territorial waters during the war and, if so, the amount of retroactive compensation, if any, owed to the veteran, survivor, or applicable estate. The agency must also provide class counsel with the identified decisions, replacement decisions, notice letters, and associated coding sheets.