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Court demands care for Agent Orange victims

  Legal Business  -   POSTED: 2007/07/20 16:02

The U.S. Department of Veterans Affairs was wrong to deny retroactive benefits to certain Vietnam veterans suffering from Agent Orange-related leukemia, the 9th U.S. Circuit Court of Appeals ruled Thursday in a class-action lawsuit filed in the Bay Area. In 2003, the VA issued a regulation finding chronic lymphocytic leukemia to be a disease associated with dioxin, a toxic substance in the Agent Orange chemical defoliant that U.S. forces used in the jungles of Vietnam. But the VA didn't reconsider prior claims of Vietnam veterans suffering from that disease, nor did it pay them retroactive benefits.

A 1991 law and court consent decree ordered that those suffering from diseases that are newly considered to be service-related could have their cases reconsidered and their back benefits paid. The VA, however, contended this didn't apply to diseases deemed service-related after the law's 2002 original sunset date.

U.S. District Judge Thelton Henderson of San Francisco disagreed in 2005, and the appeals court affirmed his judgment Thursday with some harsh words for the VA.

"Three different Congresses in three different decades have enacted legislation signed by three different presidents, designed to ensure the payment of such benefits to veterans afflicted with Agent Orange-related ailments," Circuit Judge Stephen Reinhardt wrote for himself and circuit judges John Noonan and Milan Smith. "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."

The still-suffering veterans deserve better care than they're getting, he added. "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."

VA spokeswoman Laurie Tranter said the department won't comment until it more fully reviews the ruling.

Vietnam Veterans of America was one of the plaintiffs, and Rick Weidman, the group's executive director for policy and government affairs, called Thursday's ruling "a great victory for veterans."

"The court ... clearly is as incredulous as we are at the breathtaking attitude on the part of the VA in continuing to refuse to carry out the consent decree that they agreed to," Weidman said. "It's time for the VA to move forward and carry out the consent decree tout de suite, as soon as possible, with no further delay, no further nonsense."

If it doesn't, he said, the courts should hold individual VA officials in contempt of court and punish them with fines or jail time.


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