Thousands of Vietnam veterans are missing out on VA benefits

While Veterans Affairs has been trending in the right direction on some metrics, the failures are still magnified due to the subject matter. A recent inspector general report found VA failed to identify tens of thousands of Vietnam veterans who could qualify for retroactive benefits. To get some reaction and legal knowledge about what is required of the agency, Federal News Network executive producer Eric White welcomed Bart Stichman, co-founder and special counsel for the National Veterans Legal Services Program on the Federal Drive with Tom Temin.

Interview transcript: 

Eric White  Bart, thank you for always joining us.

Bart Stichman  Well, thank you for having me here.

Eric White  Absolutely. So, why don’t we just set the table and tell me a little bit about the history of this class action lawsuit that actually involves the NVLSP back in the 1980s, which I don’t know if you were around then, but I’d be happy to learn some of the insight that you know about that case.

Bart Stichman  Well, actually, I was around then. And I was part of the team at our organization that filed the lawsuit in 1986 in federal court in California, challenging the VA Agent Orange compensation rules. For people who are younger than me, they may not realize that the United States sprayed, during the Vietnam war, in Vietnam, a herbicide to kill forests where the enemy was hiding as a tool during the war. And this herbicide contained, which chemical companies produced for the government, contained toxic substances that caused illnesses in humans, both Vietnamese and the troops. It contained a contaminant called dioxin that the EPA banned because it was so toxic to humans and animals as well. And, so, the lawsuit successfully got the court to strike down the VA’s position, that only chloracne, a skin condition, is connected to exposure to Agent Orange, and required the VA to conduct a new rulemaking proceeding to decide what’s connected. And then Congress stepped in, in 1991 and required VA in deciding what’s associated with dioxin, A, and the National Academy of Sciences, a nonprofit independent scientific entity, to advise the VA. And as a result of that, the VA agreed with the National Academy, that dozens of diseases, including many cancers, are connected to Agent Orange. And as a result of that legislation combined with our class action, the VA has been forced to pay billions of dollars, over $5 billion, in retroactive benefits to Vietnam veterans and their survivors. And that gives you the background of the case, which is still going on, because the VA keeps adding diseases as connected to Agent Orange even decades after the Vietnam War.

Eric White  In the context of it, this was a pretty landmark case. I mean, that rule saying that only that skin condition was associated with exposure to Agent Orange is almost laughable now that we, well, not a laughing matter, but just knowing what we know now, how out there that rule was. Where did that case stand in the context of the fight for Vietnam veterans to get this far, when it comes to Agent Orange and the diseases it caused in our veterans?

Bart Stichman  The class action was the key that opened the door. Otherwise, the VA could have kept that rule that only chloracne will be compensated and never compensated for other diseases. So, the court’s decision did lead Congress to pass the Agent Orange Act, which required the VA to pay attention, to actually contract with the National Academy, and pay attention to what they had to say about the science on Agent Orange. But our class action, we agreed to a consent decree on who would get paid, and the VA agreed that every time they added a disease, which they started in 1991, and they’ve continued to add diseases through 2021 to the list of Agent Orange related diseases. Every time they added the disease, they had agreed with the consent decree to find everyone who had previously filed a claim based on one of those diseases, re-decide the claim under the new rule that added the disease, and then pay retroactive benefits back to the date of the initial claim.

Eric White  We’re speaking with Bart Stichman, co-founder and special counsel for the National Veterans Legal Services Program. Okay, and, so, now the problem is, and this came out in a recent IG report, that it appears that VA is not doing what you just said, which is, when a disease is added, going back and saying, you know, well, these are the claims that we denied, we do owe this person money now. Is it a case of they are doing a little bit of it? Or are they cherry picking which diseases they do it for? Are they doing a little but not enough? What is your standpoint?

Bart Stichman  They are doing it some. There are three diseases that were added in 2021: bladder cancer, Parkinsonism, and hypothyroidism. That’s an underactive thyroid. And, they looked, they said, completely, for all three, veterans and survivors and filed claims based on all three of those diseases. And they found approximately 70,000 of those. And they’re in the process of redeciding their claims, and paying retroactive benefits. So, that, they have done, but then the Office of Inspector General did a review of the accuracy of their search. And they found that the search was half a loaf. The search didn’t go nearly as far as it should have, because it found over 80,000 additional people who were diagnosed in the past for one of these three diseases, and VA didn’t identify them for purposes of re-adjudication and retroactive benefits. So, that’s the nub of the problem.

Eric White  Was there any reaction from VA when you all reached out to them about these kinds of claims? You know, dollars to doughnuts, VA is going to be facing a budget shortfall this year and next fiscal year. Is it just coming down to, they don’t have the resources and money to do so? Or, what is the main issue, the reason that they gave you?

Bart Stichman  No, the IG, before this was issued, they gave the VA a draft of their report and asked for their reaction. And their reaction was not, we can’t afford to pay these 80,000 additional people. And they wouldn’t pay all of them, they have to re-decide their claim. And maybe there wasn’t a diagnosis or there could be a reason for denial, but most of them would probably win. And they say they don’t have to, for many of these claims that OIG found. They don’t believe they’re required by our consent decree to identify them, because the records showing a diagnosis of one of those three diseases was in a different part of the VA, the Veterans Health Administration, and that diagnosis was never associated with the VA claims file. And, so, their objection is technical. The diagnosis was in location A and not in location B, even though the VA possessed it as a whole. And because the it was not in location B, the VA claims file, they don’t have to do anything.

Eric White  So, where do you all go from here? Are you, I imagine you’re going to keep on keeping on for those folks that feel they are owed retroactive benefits? What can, you know, one of those veterans, if they feel as if, or loved ones or survivors, that feel they are owed some retroactive benefits for a disease claim from Agent Orange, what is their option? What are their options here?

Bart Stichman  Their options? First of all, we’re going to be dealing with the VA now that this report comes out and get to the bottom of this problem and see what they’re willing to do to rectify it. We hope we’ll be able to reach some type of agreement with them without us having to go back to court. But if we’re not satisfied, we may end up back in court. We’ve had to go back to court five times already for VA resistance to compliance with the consent decree. But as to the veterans, if they have one of these three diseases, and they haven’t been contacted by VA to be told we’re re-deciding your claim, then I suggest that they contact us at agentorange@nvlsp.org. And if you send an email to that address, and describe what disease you had, and that you’ve never been contacted for re-adjudication of that, and that the person could be a veteran, a Vietnam veteran, a surviving spouse of a Vietnam veteran, because if the veteran’s already deceased, the surviving spouse would be entitled to the veteran’s retroactive benefits, or a child of a Vietnam veteran, no matter the age, if there’s no surviving spouse alive.

Eric White  It’s a cliché argument between groups of veterans of, you know, who had it worse, which war was was rougher on people. Is there a more unjustly underserved group of veterans than those affected by Agent Orange in all of your experience? I know you don’t, you can’t really rank people’s suffering. But it seems as if this issue has just been a real sticking point and caused a lot of malice between the veteran, or the relationship between veterans and the VA.

Bart Stichman  You’re right. We did very well as a country by veterans, World War Two, Korean War veterans. But the Vietnam War was the beginning of the government falling way short of its obligations and promises to veterans that it will care for them if they become injured due to war. And the country’s let down Vietnam veterans not just for Agent Orange, but medical, mental problems like post traumatic stress disorder. It took them a long time to comply with their obligations. And it took them a long time to comply with their obligations, looking at more recent wars. For those who were in Southwest Asia, Iraq and Afghanistan after 9/11. But this time, Congress acted more quickly than they did for Vietnam veterans. And with the help of the veterans organizations, including ours, that lobby Congress, they have passed, enacted something called the PACT Act, which provides service connected benefits for many diseases to those who served in those areas and now have cancers or respiratory illnesses that are related to the burn pits that were used there. So, the government treated those people wrong for over a decade, and didn’t fulfill their promises to them. But finally, as a result of the PACT Act, passed in 2022, they’re being treated now the way they should have been treated since 9/11.

Eric White  Bart Stichman is co-founder and special counsel for the National Veterans Legal Services Program. Thank you so much for joining us.

Bart Stichman  Thank you. Appreciate it, Eric.

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