In a stinging ruling, a panel of the U.S. 9th Circuit Court of Appeals in San Francisco ripped into the U.S. Department of Veterans Affairs on Thursday for its continued resistance to paying benefits to veterans suffering from chronic lymphocytic leukemia because of their exposure to Agent Orange.
Thursday’s 3-0 decision marked the sixth major ruling against the government by the appeals court or a federal trial judge in a case that started in 1986. It stemmed from a clash between Vietnam veterans and the government over a chemical defoliant used by U.S. armed forces to clear dense jungle in Southeast Asia.
“What is difficult for us to comprehend is why the Department of Veterans Affairs, having entered into a settlement agreement and agreed to a consent order some 16 years ago, continues to resist its implementation so vigorously, as well as to resist equally vigorously the payment of desperately needed benefits to Vietnam War veterans who fought for their country and suffered grievous injury as a result of our government’s own conduct,” Judge Stephen Reinhardt wrote in the opinion.
“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,” said Reinhardt, an appointee of President Carter.
“We would hope,” he concluded, “that this litigation will now end, that our government will now respect the legal obligations it undertook in the consent decree 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.”
Judges John Noonan, an appointee of President Reagan, and Milan D. Smith, who was named by President George W. Bush, joined in the opinion.
The legal battle over Agent Orange started in the late 1970s when Vietnam veterans filed a federal class-action suit in Brooklyn, N.Y., against the manufacturers of dioxin and the federal government seeking compensation for their injuries. In 1984, the manufacturers -- Dow Chemical Co., Monsanto Co., Diamond Shamrock Corp., Uniroyal Inc., T. H. Agriculture and Nutrition Co., Hercules Inc. and Thompson Chemical Co. -- agreed to establish a $180-million fund to compensate class members. The claims against the government were dismissed in that case.
But the veterans pursued their claims in another forum. They sought disability compensation from the Veterans Administration (later renamed the Department of Veterans Affairs), saying the diseases they developed were caused by exposure to Agent Orange during military service in Vietnam. The agency consistently took the position that only one disease -- a skin condition called chloracne -- was caused by exposure to Agent Orange. As of Oct. 1, 1983, the agency had denied 7,709 of 9,170 claims filed by veterans.
The next year, amid concern about possible long-term health effects of Agent Orange, Congress enacted the Veterans’ Dioxin and Radiation Exposure Compensation Standards Act to ensure compensation to veterans “for all disabilities arising after [service in Vietnam] that are connected, based on sound scientific and medical evidence.”
In 1986, angry veterans, represented by the National Veterans Legal Services Program, sued the VA, challenging the way the agency was handling claims for disability benefits filed under the new law by thousands who served in Vietnam.
Nearly three years later, after extensive proceedings, U.S. District Judge Thelton E. Henderson of San Francisco rejected the VA’s procedures and ordered the agency to reconsider the claims of more than 31,000 veterans.
Henderson ruled that the VA wrongly required proof that the herbicide caused various diseases. He held that the agency’s adoption of a cause-and-effect requirement, rather than the lower standard of a statistical connection, violated the federal dioxin compensation law. In addition, Henderson concluded that the agency had failed to give veterans’ claims “the benefit of the doubt” standard to which they were entitled.
“These errors, especially sharply compounded with one another, sharply tipped the scales against veteran claimants,” Henderson wrote. He ordered the government to reopen all claims denied under the rules the agency had been using.
That ruling was a major victory, said Barton Stichman of the Veterans Legal Services Program, who has been the lead lawyer for the plaintiffs. In addition to reopening claims, it led to further congressional actions -- chief among them 1991 legislation that compelled the VA to contract with the National Academy of Sciences to conduct independent studies of which illnesses could be attributable to Agent Orange.
Since then, Stichman said, Vietnam veterans suffering from Type 2 diabetes, lung cancer, multiple myeloma, larynx cancer, trachea cancer, Hodgkin’s disease, non-Hodgkin’s lymphoma, soft-tissue sarcoma and prostate cancer have received $30 million in disability benefits. The VA asserted that veterans were not entitled to retroactive disability benefits over prostate cancer, but Henderson and the 9th Circuit ruled in their favor several years ago.
Subsequently, the VA resisted making retroactive disability payments for chronic lymphocytic leukemia (CLL), one of the four main types of leukemia. Over time, according to medical studies, the dangerous cells multiply and replace normal lymphocytes in the marrow and lymph nodes. CLL cells are not able to fight infection like normal lymphocytes do.
In December 2005, Henderson ruled in favor of the plaintiffs on the CLL payments. The VA appealed, leading to Thursday’s 9th Circuit ruling.
The VA did not respond to phone calls seeking comment. A spokesman for the Justice Department, which represented the agency in the case, said the department was reviewing the ruling and had no further immediate comment.
Plaintiffs’ attorney Stichman, who has been litigating on behalf of veterans for more than 30 years, said he was pleased with the decision but remained troubled that “the VA has been an obstacle to justice for veterans exposed to Agent Orange. It is very hard to change the ocean liner that is the VA.” He said he expected that Thursday’s ruling would lead to many millions in benefits for disabled veterans.
Orlandes Shuemake, who repaired sighting mechanisms on heavy artillery such as howitzers in South Vietnam in 1969 and 1970, said he hoped the decision would help other veterans like himself who suffer from chronic lymphocytic leukemia. Shuemake, who is 58 and lives in Hercules, 25 miles northeast of San Francisco, said lymph nodes in his neck began to swell in 2001 and soon thereafter he was diagnosed with the disease.
“I am no longer able to work the way I used to,” said Shuemake, who worked in telecommunications for many years after being discharged from the Army, where, he stated proudly, he had earned a Bronze Star.
He said that the VA “blew me off” when he initially attempted to get help after discovering that he had CLL.
“With the help of the Veterans of Foreign Wars,” Shuemake said in a telephone interview, “I felt that there was a pathway to get some support.”