To say that we support our troops without including our Veterans in the same sentence is hypocritacal.

If we say that we support our troops, lets also say that we support our Veterans. The best way to support our Veterans is to see that their benefits are not reduced to nothing.

Make sure they get the care that they have earned.

I thought some of you may not be aware of what is happening on the front lines with Veterans Issues so I wanted to add this.

I for one wonder why the V.A. is fighting these issues in court and wasting money that should be spent on medical services.

___________________________________________________

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BEVERLY NEHMER; CLAUDE ü
WASHINGTON; LINDA
WAGENMAKERS; ROBERT FAZIO;
GEORGE CLAXTON; JULIO GONZALES;
PAUL R. JENSEN; WILLIAM MADDEN;
DAVID MAIER; BRUCE MILLER; No. 06-15179 VIETNAM VETERANS OF AMERICA, ý D.C. No.
Plaintiffs-Appellees, CV-86-06160-TEH
v.
UNITED STATES DEPARTMENT OF
VETERANS AFFAIRS,
Defendant-Appellant. þ
BEVERLY NEHMER; CLAUDE ü
WASHINGTON; LINDA
WAGENMAKERS; ROBERT FAZIO;
GEORGE CLAXTON; JULIO GONZALES;
PAUL R. JENSEN; WILLIAM MADDEN; No. 06-16164
DVAIEVTINDA MM AVIEERT;E RBARNUSC OE FM AILMLEERRI;CA, ý CV-8D6-.C06. 1N6o0.-TEH
Plaintiffs-Appellees,
OPINION
v.
UNITED STATES DEPARTMENT OF
VETERANS AFFAIRS,
Defendant-Appellant. þ
Appeal from the United States District Court
for the Northern District of California
Thelton E. Henderson, District Judge, Presiding
8731
Argued and Submitted
April 18, 2007-San Francisco, California
Filed July 19, 2007
Before: Stephen Reinhardt, John T. Noonan, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Reinhardt
8732 NEHMER v. USDVA
COUNSEL
Peter D. Keisler, Assistant Attorney General, William Kanter,
Attorney, and John S. Koppel (argued), Attorney, Civil Division,
United States Department of Justice, Washington, D.C.,
for the defendant-appellant.
8734 NEHMER v. USDVA
Kevin V. Ryan, United States Attorney, San Francisco, California,
for the defendant-appellant.
Barton F. Stichman (argued), National Veterans Legal Services
Program, Washington, D.C., for the plaintiffs-appellees.
Linda S. Peterson and Laboni A. Hoq, Sidley Austin LLP,
Los Angeles, California, for the plaintiffs-appellees.
OPINION
REINHARDT, Circuit Judge:
This case involves our government's treatment of its veterans
who contracted serious ailments as a result of their exposure
to Agent Orange in the course of the military's use of
that toxic chemical as a defoliant during the Vietnam war. It
is a disturbing story, and the performance of the United States
Department of Veterans Affairs (VA) has contributed substantially
to our sense of national shame.1
The issue before us on this occasion is a technical one. But
it is symbolic of the problems that have plagued a significant
group of veterans who deserve to receive our foremost care
and attention. The present question is whether the District
Court, in a clarification and enforcement order issued in 2005,
reasonably interpreted the earlier court-approved Stipulation
and Order (sometimes referred to as "Consent Decree") that
settled a class action lawsuit brought by veterans of the Vietnam
war (sometimes referred to as "plaintiff class" or "class
plaintiffs").
1At the inception of this class action lawsuit in 1986, the defendant was
the United States Veterans' Administration. In 1988, Congress redesignated
the United States Veterans' Administration as the Department of
Veterans Affairs, effective March 15, 1989. The Department of Veterans
Affairs Act of 1988, Pub. L. No. 100-527, §§ 2 & 18, 102 Stat. 2635
(1988).
NEHMER v. USDVA 8735
In 1989, the veterans successfully challenged a regulation
of the VA that imposed an erroneous standard for determining
which diseases were associated with dioxin. Congress thereupon
enacted new legislation, the Agent Orange Act of 1991,
Pub. L. No. 102-4, 105 Stat. 11 (1991), under which veterans
who served in Vietnam and later suffer from such diseases
receive a presumption that their ailments are connected to
their exposure to Agent Orange in Vietnam. The dioxinrelated
diseases are deemed to be "service-connected," and
the veterans qualify for disability benefits. The ensuing 1991
Stipulation and Order provides that as soon as the VA issues
new determinations designating particular diseases as
"service-connected," it must readjudicate the claims of veterans
suffering from them if their previously filed claims were
denied or are still pending, and must then pay them retroactive
benefits. Nehmer v. Veterans' Admin., 284 F.3d 1158,
1161-62 (9th Cir. 2002) (Nehmer III).
In 2003, the VA issued a regulation finding Chronic Lymphocytic
Leukemia to be a disease that was associated with
dioxin and thus "service-connected," but the VA did not readjudicate
the prior claims of Vietnam veterans suffering from
that ailment. Nor did it pay them retroactive benefits. The reason
it offered for its failure to follow the provisions of the
Consent Decree was that in its view the decree does not apply
to diseases that it determines to be "service-connected" after
September 30, 2002, the original sunset date of the Agent
Orange Act of 1991. In 2004, the plaintiff class, disputing this
interpretation, filed a motion that the district court construed
as a motion for clarification and enforcement of the decree. In
2005, the district court rejected the VA's interpretation and
granted the veterans' motion. Because we conclude that the
district court's construction of the decree is not only reasonable
but correct, and that our long-suffering veterans are presently
entitled to the benefits at issue, we affirm.
8736 NEHMER v. USDVA
I. Factual and Procedural Background
A. Agent Orange
"Agent Orange is a chemical defoliant used by the United
States Armed Forces in Vietnam to clear dense jungle land
during the war. It contains the toxic substance dioxin. Since
its use, Agent Orange has been statistically linked with the
occurrence of many diseases in those exposed, including prostate
cancer. For more than fifteen years [now, for more than
twenty years], veterans suffering from diseases they believe to
have been caused by Agent Orange have struggled with the
United States for compensation." Nehmer III, 284 F.3d at
1160 (citing In Re Agent Orange Prod. Liab. Litig., 818 F.2d
194 (2d Cir. 1987); Nehmer v. U.S. Veterans Admin., 712 F.
Supp. 1404 (N.D. Cal. 1989) ("Nehmer I"); Nehmer v. U.S.
Veterans Admin., 32 F. Supp. 2d 1175 (N.D. Cal. 1999)
("Nehmer II ")).
B. The Dioxin Act and the Challenge to the VA
Regulations Limiting the Number of Service-
Connected Diseases
The class action of which these proceedings are a part was
initially filed against the VA in 1986 by Vietnam veterans
who challenged a VA regulation, 38 C.F.R. § 3.311, governing
their eligibility for disability benefits based on diseases
associated with exposure to Agent Orange. Nehmer III, 284
F.3d at 1160; Nehmer I, 712 F. Supp. at 1408-09. The veterans
claimed that the regulation did not comply with the Veterans'
Dioxin and Radiation Exposure Compensation Standards
Act of 1984, Pub. L. No. 98-542, 98 Stat. 2725 (1984)
("Dioxin Act"). Nehmer I, 712 F. Supp. at 1408-09.
The Dioxin Act "dramatically alter[ed] the process governing
[veterans'] Agent Orange disability claims." Id. at 1407.
"Rather than have the VA determine in individual adjudicatory
proceedings whether a particular veteran's claimed dis-
NEHMER v. USDVA 8737
ease was caused by Agent Orange exposure, the Act
authorize[d] the Administrator of the VA [ ] to conduct rulemaking
to determine which diseases will be deemed service
connected for all diseases claimed to be caused by Agent
Orange exposure." Id. at 1407-08.
The regulation implementing the Dioxin Act provided that
any veteran who served in Vietnam "shall be presumed to
have been exposed to a herbicide containing dioxin while in
Vietnam." 38 C.F.R. § 3.311a(b) (1988). But it also stated that
only a single disease - chloracne - "is sufficient to establish
service-connection for resulting disability." Id.
§ 3.311a(c); see also id. § 3.311a(d) (stating that there is not
a "cause and effect relationship between dioxin exposure" and
"Porphyria cutanea tarda," "Soft tissue sarcomas," and "[a]ny
other disease" besides chloracne). The district court invalidated
the regulation because, although Congress intended the
VA to "predicate service connection upon a finding of a significant
statistical association between dioxin exposure and
various diseases," the VA had erroneously required proof that
a causal relationship existed. Nehmer I, 712 F. Supp. at 1420,
1423. The district court also voided all adverse VA benefit
decisions based on the invalid regulation. Id. at 1423.
C. The Agent Orange Act of 1991
After the district court invalidated the VA regulation, Congress
enacted the Agent Orange Act of 1991, Pub. L. No. 102-
4, 105 Stat. 11 (1991), 38 U.S.C. § 1116. The Agent Orange
Act was originally codified at 38 U.S.C. § 316, but six months
later Congress renumbered § 316 of title 38 as § 1116. See 38
U.S.C.A. § 1116 (2002); Department of Veterans Affairs
Codification Act of 1991, Pub. L. No. 102-83, § 5(a), 105
Stat. 378 (1991). Because the relevant portion of the Consent
Decree at issue in this action refers to 38 U.S.C. § 316(b), we
will refer to § 316 and § 1116 interchangeably.
8738 NEHMER v. USDVA
The Agent Orange Act requires the Secretary of the VA to
conduct new rulemaking proceedings to determine which diseases
are sufficiently associated with exposure to Agent
Orange so that veterans with approved diseases receive a presumption
of service-connection. 38 U.S.C. § 1116.2 Section
1116(b) states that
(1) Whenever the Secretary determines, on the basis
of sound medical and scientific evidence, that a positive
association exists between (A) the exposure of
humans to an herbicide agent, and (B) the occurrence
of a disease in humans, the Secretary shall prescribe
regulations providing that a presumption of
service connection is warranted for that disease for
the purposes of this section.
(2) In making determin

(2) In making determinations for the purpose of this
subsection, the Secretary shall take into account (A)
reports received by the Secretary from the National
Academy of Sciences under section 3 of the Agent
Orange Act of 1991, and (B) all other sound medical
and scientific information and analyses available to
the Secretary.
Id. § 1116(b).
To develop the scientific information upon which to base
service-connected determinations, § 3 of the Agent Orange
Act directed the Secretary "to enter into an agreement with
the National Academy of Sciences for the Academy to perform
the services covered by this section[,]" and under that
2For background regarding how the VA ordinarily processes veterans'
disability claims, and how a presumption of "service-connected" provides
an alternative route for proving entitlement to disability benefits, see Mark
Brown, Science for Judges IV: Agent Orange Revisited and Human
Behavior Research: The Role of Science in Department of Veterans Affairs
Disability Compensation Policies for Environmental and Occupational Illnesses
and Injuries, 13 J.L. & POL'Y 593, 593-99 (2005).
NEHMER v. USDVA 8739
agreement the Academy was to "review and summarize the
scientific evidence, and assess the strength thereof, concerning
the association between exposure to [dioxin] . . . and each
disease suspected to be associated with such exposure." Agent
Orange Act, § 3(b)-(c). Moreover, the Academy was to submit
its first report no later than 18 months after the enactment
of the Agent Orange Act, and, thereafter submit "periodic
written reports . . . at least once every two years (as measured
from the date of the first report)." Id. § 3(g)(1)-(2).
Furthermore, under the Agent Orange Act, when the Secretary
received a report from the Academy, he was required to
determine within 60 days "whether a presumption of service
connection is warranted for each disease covered by the
report," and if he determined that a "presumption is warranted,"
he was required to issue proposed regulations within 60
days setting forth his determination and to issue final regulations
within 90 days after proposing them. 38 U.S.C.
§ 1116(c)(1)(A), (c)(2).
Finally, § 2(a) of the Agent Orange Act, as originally
enacted, set forth a sunset date for the operation of the provisions
that required the Secretary to issue regulations designating
service-connected diseases in response to the scientists'
reports. 38 U.S.C. § 316(e), 38 U.S.C.A. § 1116(e) (1992)
("Subsections (b) through (d) shall cease to be effective 10
years after the first day of the fiscal year in which the [Academy]
transmits to the Secretary the first report under section
3 of the Agent Orange Act of 1991."). Because § 2(a), codified
as § 316(e) or § 1116(e), provided that its sunset date
would be 10 years after the first day of the fiscal year in
which the Academy transmitted its first report to the Secretary,
and the first report was transmitted on July 27, 1993, the
original effective sunset date was September 30, 2002.
8740 NEHMER v. USDVA
D. The Veterans Education and Benefits Expansion
Act of 2001
Ten years after the passage of the Agent Orange Act, Congress
enacted the Veterans Education and Benefits Expansion
Act of 2001, Pub. L. No. 107-103, § 201, 115 Stat. 976 (2001)
("Benefits Expansion Act"), which, inter alia, amended the
sunset date contained in 38 U.S.C. § 1116(e) and extended the
Secretary's authority to issue regulations designating serviceconnected
ailments for another thirteen years.3 As a result, the
provisions in 38 U.S.C. § 1116(b), (c) and (d) have remained
in effect since 1991, and will continue to be effective until
September 30, 2015, or until such other time as Congress
shall establish, should it enact another extension. See 38
U.S.C.A. § 1116(e) (2006) ("Subsections (b) through (d) shall
cease to be effective on September 30, 2015.").
E. The Final Stipulation and Order Entered in 1991
Shortly after Congress enacted the Agent Orange Act on
February 6, 1991, the VA and the plaintiff class signed a
court-approved Stipulation and Order or Consent Decree. On
May 17, 1991, the district court entered the decree, "setting
forth VA's ongoing responsibilities for further rulemaking
and disability payments to class members." Nehmer III, 284
F.3d at 1160.
Under Paragraph 1 of the decree, the Veterans' Advisory
Committee on Environmental Hazards - which the Dioxin
Act had created - would "complete its analysis as to whether
the scientific or medical evidence reveals a connection
between exposure to dioxin and diabetes, lung cancer and
3Section 201(d) of the Benefits Expansion Act of 2001 provided that
"EXTENSION OF AUTHORITY TO PRESUME SERVICECONNECTION
FOR ADDITIONAL DISEASES.-(1) Subsection (e) of
such section is amended by striking '10 years' and all that follows through
'Agent Orange Act of 1991' and inserting 'on September 30, 2015'."
NEHMER v. USDVA 8741
peripheral neuropathy . . . and convey its evaluations and any
recommendations to the Secretary." Under Paragraph 2, after
reviewing the Advisory Committee's analysis of these three
diseases, the Secretary was to initiate rulemaking in order to
determine whether they were service-connected, or alternatively
to defer rulemaking if the information was insufficient.
Furthermore, Paragraphs 3 and 5 established the VA's obligation
to readjudicate veterans' disability claims whenever
the VA in the future finds new diseases to be serviceconnected
under the procedures set forth in 38 U.S.C.
§ 316(b) (renumbered subsequently at 38 U.S.C. § 1116(b)),
and to pay retroactive benefits based on the date that a veteran
filed his claim or became disabled, whichever is later. Paragraph
3 provides that
As soon as a final rule is issued service connecting,
based on dioxin exposure, any . . . disease which
may be service connected in the future pursuant to
the Agent Orange Act of 1991, 38 U.S.C. § 316(b),
the VA shall promptly thereafter readjudicate all
claims for any such disease which were voided by
the Court's Order of May 3, 1989, as well as adjudicate
all similar claims filed subsequent to the Court's
May 3, 1989 Order, without waiting for final rules to
be issued on any other diseases.
Nehmer III, 284 F.3d at 1161. Paragraph 5 provides that
For any . . . disease which may be service connected
in the future pursuant to paragraph 3 above, as to any
details of claims which were voided as a result of the
Court's May 3, 1989 Order, the effective date for
disability compensation or dependency and indemnity
compensation ("DIC"), if the claim is allowed
upon readjudication pursuant to paragraphs 3 and 4
above, will be the date the claim giving rise to the
voided decision was filed . . . . For any claim for any
8742 NEHMER v. USDVA
such disease which was not filed until after May 3,
1989, the effective date for beginning disability compensation
or [dependency and indemnity compensation
("DIC")] will be the date the claim was filed or
the date the claimant became disabled or death
occurred, whichever is later.
Id.; Stipulation & Order 5. As a result of the VA's rulemaking,
the agency has "found that a number of cancers are linked
to Agent Orange using the appropriate standard, and, as a
result, they have been accorded service connected status."
Nehmer II, 32 F. Supp. 2d at 1177.
F. A Prior Appeal Confirms the Retroactive
Application of the Consent Decree
For the past sixteen years since he entered the Consent
Decree, Judge Thelton Henderson has "enforced compliance
with the Stip[ulation] & Order and adjudicated disputes concerning
its interpretation." Nehmer III, 284 F.3d at 1160
(internal citations omitted). In 1998, several disputes arose
between the VA and the veterans, which required Judge Henderson
in the first instance and this court on appeal to interpret
the language of the decree. Nehmer II, 32 F. Supp. 2d at
1177-78; Nehmer III, 284 F.3d at 1161. In 1996, the VA
determined prostate cancer to be service-connected, thus
reaching the opposite conclusion from the one it had reached
when it adopted its 1994 regulations. The VA, however, contended
that "it [wa]s not required to pay retroactive prostate
cancer benefits (accruing, in most cases, back to the date of
the veteran's first claim for such benefits) to any veteran suffering
from prostate cancer whose earlier claim was denied
under the valid 1994 regulations." Nehmer III, 284 F.3d at
1161. The district court rejected the VA's interpretation, holding
that "the consent decree requires [the] VA to provide
retroactive benefits to any class member who submitted a
claim after May 3, 1989, based on a disease that is later
[determined to be] service connected under the Agent Orange
NEHMER v. USDVA 8743
Act." Id. It then granted the veterans' motion to enforce the
Consent Decree. Id. We affirmed, because we held "the district
court's interpretation of the consent decree to be reasonable."
Id.
Specifically, we concluded that "[t]he plain language and
remedial purpose of the Consent Decree indicate that VA
agreed to pay retroactive benefits to all claimants whose
claims were filed after 1989, if and when the disease from
which they suffer is [determined to be] service connected
under the Agent Orange Act." Id. at 1161-62. Accordingly,
veterans who applied for benefits anytime after 1989, and
whose claims had been denied were to receive a readjudication
of those claims and retroactive benefits, if the VA subsequently
determined the disease from which they suffered to be
service-connected, "even if such veterans' claims were originally
denied under valid regulations." Id. at 1161.
G. The VA Finds Chronic Lymphocytic Leukemia to
be Service-Connected in 2003, But Fails to
Readjudicate Claims or Pay Retroactive Benefits
On January 23, 2003, the National Academy of Sciences
transmitted to the Secretar

The text is far too large to post in its entirety here.

But if you are interested the case site will give you the complete text.

I hope this will help some of you.

( I just couldn't resist including the ending)

" Whether the Vietnam war was just or not, whether one
favored or opposed it, one thing is clear. Those young Americans
who risked their lives in their country's service and are
even today suffering greatly as a result are deserving of better
treatment from the Department of Veterans Affairs than they
are currently receiving. We would hope that this litigation will
now end, 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.
AFFIRMED.
NEHMER v. USDVA 8763 "