Agent Orange: Nehmer and its Progeny

In 1986 a class action suit was filed against the VA by veterans and their survivors. The class alleged that the VA improperly denied their claims for service connected compensation for diseases or disabilities that the class alleged were caused by exposure in active military service to herbicides a/k/a Agent Orange. This class action suit was known as “Nehmer”. In 1989, a US District Court ruled that the causation standard that the VA had been using was inconsistent with the intent of Congress and the VA’s regulation was invalidated by the court and all of the benefit denials by the VA that were made under the regulation were voided by the court. In 1991, the parties to the suit entered into a “Final Stipulation and Order”. This began with an outlining of actions to be taken by the VA: 1. The VA would issue new regulations in accordance with the Agent Orange Act of 1991. 2. The VA then readjudicated the prior claim decisions in which there were (1989) denials of service connection. 3. The VA adjudicated all similar claims filed after the court’s order 4. If the VA then granted service connection, the effective date of the award would be the later of the date that the claim was filed or the date when the disability arose. In 2000, the court ordered VA to pay full retroactive benefits to the estates of deceased class members. On October 13, 2009, the Secretary of the VA announced that hairy cell and other B cell leukemias, Parkinson’s disease, and ischemic heart disease would be added to the list of diseases that are presumptively associated with Agent Orange exposure. This law became effective on August 31, 2010 and the VA then established Nehmer teams at the VA Regional Offices throughout the nation for the purposes of selection of Nehmer subject matter experts and Nehmer raters who would adjudiate the prior claims. In late 2010, the VA Nehmer teams began readjudicating claims. The Nehmer teams would determine if veterans, during active military service were in the republic of Vietnam (one day or one minute is sufficient to establish presence for the purpose of presumed exposure to herbicides). The rule on effective dates for service connection: The later of the following: 1. The date when the VA received the claim or, a date prior to September 25, 1985; or, 2. The date when the disability arose; or, 3. The day after discharge of the class member if the claim was received within one year of discharge from active service.

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This pandemic is unlike anything any of us have faced in our lifetimes, and while we can continue to emotionally support one another through it all, staying home and keeping your distance is vital to the health and wellness of our communities. It does not feel good to break routines, cancel events and retreat from our normal, day-to-day socializing, but let us remember that, in times of strife, prior generations were asked to go to war and we are simply being asked to stay home. Your isolation equals more lives saved, and more time for medical providers to prepare for the treatment of patients battling COVID-19.

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Very truly yours,

Andrew G. Finkelstein and the staff of Finkelstein & Partners, LLP