Air Force Veteran Receives the Benefits He was Unfairly Denied for Almost Ten Years

The veteran served in the Air Force from 1966 to 1987. After suffering a back injury while moving heavy equipment, he filed for disability compensation for the pain he experienced in his back and legs, and was assigned a 10% rating in 1987. In 2003, the veteran retired early from his civilian job because the increasing pain in his back, hip, and leg, made his work extremely difficult. Two years later the veteran sought treatment for a flare-up in pain associated with his injury. An MRI revealed a "prominent" bulging disk.   

During the summer and fall of 2005, he underwent physical therapy, numerous injections, and electrical therapy in an effort to alleviate his back pain. In 2006, the VA regional office increased his disability rating to 40%. The veteran appealed the decision, and in 2010 the Board of Veterans Appeals denied his claim for a disability rating in excess of 40%, and remanded the issue back to the regional office for a VA medical examination to evaluate the veteran's ability to work. After the evaluation, the VA examiner issued an opinion that the veteran was unable to work due to his service-connected disability, which rendered him unable to engage in prolonged standing, walking, or sitting.

Despite the opinion from the VA examiner,the Board denied the veteran entitlement to a total disability rating based on individual unemployability (a 100% disability rating known as TDIU). According to the Board, his disabilities did not prevent him from securing employment consistent with his education and experience. With representation from NVLSP, he appealed this decision to the U.S. Court of Appeals for Veterans Claims.

NVLSP attorneys argued that the Board had insufficient rationale for rejecting the VA examiner's opinion. Also, NVLSP argued that the Board improperly denied the appellant's claim by imposing requirements that do not exist for establishing entitlement to TDIU.  

The Judge ruled in the veteran's favor, reversing the previous decision to deny him entitlement to a TDIU rating. The veteran will receive retroactive compensation dated back to 2005 totaling about $150,000.00. In addition, he will receive monthly disability payments of $2,858.00.

NVLSP Wins Agent Orange Benefits for Navy Veteran who Served in Vietnam

The VA will only acknowledge that a veteran was exposed to Agent Orange if the veteran can prove that he either stepped foot on Vietnamese soil or entered the inland waterways (i.e., rivers) of Vietnam.  This means that for any veteran who served aboard a Navy ship in Vietnam but never got off the ship, or if the ship they were stationed on never went down any rivers, they would not be presumed to have been exposed to Agent Orange, even if that ship was only a few feet from the shore. 

In a recent case, the VA denied a Navy veteran's claim for benefits, stating that the deck logs of the ship he was stationed on did not reveal that the ship ever entered the inland waterways of Vietnam. Therefore, the VA would not acknowledge that the veteran was exposed to Agent Orange. The VA keeps a list of ships that have been shown to have operated on the inland waterways in Vietnam, but this particular ship was not on the VA's list at the time. 

Through research conducted at the National Archives and Records Administration (NARA), NVLSP was able to verify the VA's determination was incorrect that the ship did not operate on the inland waterways. NVLSP's review of the deck logs revealed that the ship undeniably operated upon the Cua Dai River during the time that the veteran served aboard the ship. NVLSP filed an appeal of the VA's denial to the U.S. Court of Appeals for Veterans Claims.  

NVLSP has filed a lawsuit along with the American Legion, the Military Order of the Purple Heart and Vietnam Veterans of America that alleges that a group of US military veterans who served in Korea's demilitarized zone (DMZ) and were exposed to toxic Agent Orange chemicals are being wrongfully denied disability benefits. Attorneys from Paul Hastings LLP and NVLSP represent the petitioners. 

The lawsuit hinges on the effective date used by the Department of Veterans Affairs (VA) to determine eligibility for Agent Orange benefits for military veterans who served in the Korean DMZ. The lawsuit identifies a seven-year gap between 2004 and 2011 when the VA denied claims for disability benefits it should have paid.  

The coalition of veteran's groups sent former VA Secretary Eric Shinseki a letter on January 28, 2014 outlining the problem. The letter asked him to investigate it and direct his staff within 90 days to correct the situation. They did not receive a response.  

Background on the Lawsuit 

During the Vietnam War, from April 1968 to July 1969, the toxic chemical Agent Orange was sprayed along the southern boundary of the Korean demilitarized zone (DMZ). As a result, troops stationed in the Korean DMZ during that period and long after were exposed to harmful toxins, leading many to develop illnesses that are scientifically linked to Agent Orange exposure.

When passing legislation granting disability benefits to children with birth defects of veterans who served along the Korean DMZ, Congress was aware Agent Orange spraying along the Korean DMZ ended in 1969. Because Agent Orange persists in the environment long after spaying ends, Congress acted in 2003 to make the children with birth defects eligible for these benefits if the veterans served along the Korean DMZ either during the 16 months of herbicide spraying or during the 25 months after spraying ceased - from August 1, 1969 to August 31, 1971.

But in 2004 the VA adopted a manual rule that arbitrarily divided this 41-month period into two different time blocks, and imposed different benefit rules to these veterans depending upon when during the 41-month period they served along the Korean DMZ. Under VA's 2004 rule, those who served near the Korean DMZ from April 1968 to July 1969 were entitled to the presumption that they were exposed to herbicides. But veterans who served near the Korean DMZ from August 1, 1969 to August 31, 1971 were not entitled to the same presumption.  Instead, the VA said that these veterans had to establish decades after the fact that they were actually exposed to herbicides on a factual, case-by-case basis. 

Seven years after the 2004 manual rule was published for public comment, the VA realized its mistake.  Based on objections from veterans service organizations, VA published a rule in 2011 that extended the presumption of Agent Orange exposure in the 2004 manual rule to veterans who served along the Korean DMZ from August 1969 to August 1971. But the VA refused to make the corrected rule retroactive. 

The net result is that veterans covered by the 2011 rule who filed claims before 2011 are treated dramatically differently by the VA, depending on when they came into contact with Agent Orange.  Those who filed claims prior to 2011 and are presumed exposed to Agent Orange along the Korean DMZ during the period from April 1968 to July 1969 are entitled to benefits retroactive to the date of their claims. But those who are presumed exposed to Agent Orange along the Korean DMZ during the period from August 1969 to August 1971 cannot receive benefits retroactive to the date of their claim if they filed their claim prior to 2011.    

It is possible that hundreds or thousands of veterans who filed claims for benefits after 2004 but before 2011 have been denied compensation for Agent Orange related illnesses based on the corrected regulation's February 24, 2011 effective date. 

For Veterans Who Served in the Korean DMZ 

If you are a veteran or a survivor of a veteran who served in the Korean demilitarized zone between August 1, 1969 and August 31, 1971, and you filed a VA claim for disability benefits between 2004 and 2011 for illnesses that are linked to Agent Orange exposure, please contact NVLSP at 1-855-333-0677. 

Dean Panayides is a staff attorney at NVLSP. The bulk of his work consists of ensuring that class members of the Nehmer v. Dept. of Veterans Affairs lawsuit receive the benefits they deserve. Dean has devoted most of his time at NVLSP to ensuring that VA complies with the Nehmer Court Orders and that class members are paid the correct amount of retroactive benefits for ischemic heart disease, chronic B-cell leukemia, and Parkinson's disease, which were added in August 2010 to the VA's list of disabilities presumptively associated with Agent Orange exposure. Today, in addition to his appellate work at the U.S. Court of Appeal for Veterans Claims, Dean has been leading NVLSP's efforts to identify military retirees who had their Nehmer benefits illegally withheld by the VA due to their previous receipt of military retired pay. These recent efforts have already resulted in the payment of over $8.5 million of VA disability compensation to military retirees. 

Dean graduated from the University of Pennsylvania with a Bachelor of Arts, cum laude, having majored in Philosophy, Politics and Economics. He received his Juris Doctor in 2010 from Boston University School of Law. He was first exposed to the challenges confronted by veterans and service members while in high school, when he served as an intern to then-Senator Hillary Rodham Clinton handling constituent concerns from veterans and military servicemen and women.

When asked what he finds rewarding about working at NVLSP, Dean mentions that he has spoken with over 3,000 veterans and their family members. "I can't imagine another job where I would be able to give legal advice to so many deserving people." He also notes the immense scale of the Nehmer lawsuit, which has helped hundreds of thousands of veterans, and the amount of money the VA has paid as a result of the Nehmer Court Orders. As class counsel in the Nehmer lawsuit, NVLSP has discovered errors that have resulted in the payment of over $60 million of additional retroactive VA disability compensation to class members over the past 20 years, with over $25 million of that being paid in the past three years. "It is incredible to think that despite not being alive during the Vietnam War, I can still contribute to that era in our nation's history in a positive way by righting the wrongs that the veterans of that war faced upon returning home."

Looking forward, Dean says that with the increase in veterans returning home from the wars in Afghanistan and Iraq he sees NVLSP playing a leading role in assisting as many veterans as possible by fostering partnerships within the legal community with the aim of encouraging other attorneys and legal professionals to follow NVLSP's example and represent veterans and service members on a pro bono basis.