Sick Agent Orange vets owed benefits - U.S. court
SAN FRANCISCO (Reuters) - A U.S. appeals court ruled Monday that Vietnam veterans who contracted prostate cancer and diabetes after exposure to Agent Orange should get retroactive disability payments, setting legal precedent that could cover a wide range of illnesses associated with the toxic defoliant.
The 9th Circuit Court of Appeals affirmed a lower court ruling that held the Veterans Administration incorrectly interpreted rules to deny retroactive payments to veterans who filed claims after early 1994.
The court's three-judge panel held that the VA was bound under the terms of a 1991 consent decree to pay the benefits, in many cases back to the date the veteran first claimed them.
The ruling marked a victory for activists who have been seeking compensation and care for tens of thousands of Vietnam veterans who have fallen sick after battlefield exposure to Agent Orange, a herbicide that contains the known carcinogen dioxin.
The National Veterans Legal Services Program, which filed the initial Agent Orange suit in 1986, said the court's decision would guarantee payments to an estimated 1,200 veterans with Agent Orange-related prostate cancer, as well as thousands more who suffer from adult-onset diabetes.
In both cases, the Veterans Administration had sought to deny retroactive payments on the grounds that the diseases' connection with Agent Orange was not scientifically established when payment regulations were promulgated in 1994.
Barton Stichman, the group's executive director, said the appeals court's ruling could have a wide impact by forcing the Veterans Administration to pay retroactive benefits for illnesses that future scientific research may tie to Agent Orange.
"As time goes on, as a result of additional scientific studies, it becomes clearer that other diseases are associated with Agent Orange," Stichman said. "The Veterans Administration is going to have to accept that the same legal theory will cover these cases."
A Veterans Administration spokeswoman said VA lawyers were reviewing the ruling and would have no immediate comment.
At least 9 million gallons of Agent Orange was sprayed on Vietnam between 1962 and 1970. The chemical got its nickname from the orange stripe on the barrels in which it came.
It has been linked with 10 diseases, including lung cancer, prostate cancer and diabetes.
Scientists are also probing possible links between Agent Orange and childhood leukemia among children of veterans, while Vietnam's government has blamed Agent Orange for causing tens of thousands of birth defects in Vietnam and demanded compensation.
After Agent Orange was found to cause cancer in laboratory rats, the U.S. military suspended its use in 1970 and halted all herbicide spraying in Vietnam the following year.
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Here is the full published opinion of the three judge panel of the 9th Circuit Court of Appeals in San Francisco. http://www.ca9.uscourts.gov/ca9/newopinions.nsf/28D4FD1ECE6EEC3B8825731D0057D6DD/$file/0615179.pdf?openelement
The full published opinion is worth reading if you have the patience to wade through all of the legalese and case citations. The conclusion of the court on page 32 is one of the best written pieces about Vietnam Veterans that I have seen written by the judiciary. The 9th Circuit is known as being very liberal and far left, however they did right on this one.
ReplyDeleteThe opinion in this case was written by Judge Stephen Reinhardt, a judge who has been labeled in the past as the “Judge whom the Supreme Court loves to turn around.” This is the same judge who wrote the opinion in the pledge of allegiance case, where the appeals court ruled that reciting the Pledge of Allegiance in public schools is an unconstitutional “endorsement of religion” because of the phrase “under God.” Therefore it is hard to figure a man like Reinhardt taking up for Vietnam Veterans the way he has in this opinion. He was in the Air Force for two years as a lawyer, perhaps that was a significant factor and perhaps he does have a conscience. In the conclusion of the opinion written by Judge Reinhardt, one of the more striking statements is where he states that “it is difficult to understand why the Department of Veterans Affairs (VA) continues to resist so vigorously the payments to the Vietnam Veterans who fought for their country and suffered grievous injury as a result of our government’s own conduct.” That is very strong language and a very good question. I am sure there are many factors that have manifested into this case but from my experience, I think that a very significant factor is that those VA lawyers just did not want to lose a case. Not losing a case seems to be paramount among the legal community. Win at all cost is the name of the game. Students in law school are taught this from the get go and it is reinforced when they become law clerks and junior attorneys. In the present time, the current generation of lawyers have little or no real life experiences to call upon. Most only have some form of minor college degree in basket weaving, which is all that is required to get into law school, and then they sit through law school ( it is commonly referred to as “surviving law school”) and are under the influence of hippy like law professors who for the most part are extremely liberal and secular. College students who go on to veterinary school have a much higher requirement to be admitted to vet school than college grads who apply and go to law schools. In other words, law schools are not getting the best and brightest, on the contrary they are getting the worst of the lot and from this pool will come our Article III Judges in the future. Not a very good situation. This case could be appealed to the Supreme Court via a writ of certiorari and a stay of the mandate. This would mean that the VA would not have to pay the Veterans until the Supreme Court decided whether to consider the case and make a decision and that might take a year or more. If these VA lawyers follow true to their past procedure, they will appeal. Government lawyers do not like to lose because it lowers their “batting average.” Someone should rein in these VA lawyers and it could be done with a United States Presidential Executive Order. The case should have never gone this far in the first place.
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