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Court orders VA to pay in Agent Orange cases

SAN FRANCISCO — A federal appeals court chastised the Veterans Affairs Department on Thursday for failing to pay retroactive disability benefits to Vietnam War veterans who contracted a form of leukemia after exposure to Agent Orange.

In a strongly worded opinion, the 9th U.S. Circuit Court of Appeals said VA is obliged to pay retroactively.

“The performance of the United States Department of Veterans Affairs has contributed substantially to our sense of national shame,” the appeals court wrote in its opinion.

The opinion was on a technical matter involving whether a lower court had properly interpreted a landmark agreement in 1991 on benefits, stemming from a class-action lawsuit originally filed in 1986.

The ruling was also related to VA agreeing in 2003 to extend benefits to Vietnam vets diagnosed with chronic lymphocytic leukemia. U.S. troops had sprayed 20 million gallons of Agent Orange and other herbicides over parts of South Vietnam and Cambodia in the 1960s and ’70s to clear dense jungle, and researchers later linked CLL to Agent Orange.

But with that 2003 agreement, VA did not re-examine previous claims from veterans suffering from the ailment, nor did it pay them retroactive benefits, and that was the heart of the latest dispute.

The appeals court sided with veterans groups who said the veterans were entitled to retroactive benefits.

“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,” Judge Stephen Reinhardt wrote in the court’s opinion.

“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,” Reinhardt wrote.

One lawyer involved in the case said the ruling could finally halt years of legal battles — if VA does not appeal to the Supreme Court.

“We think this is a huge victory for the vets who have suffered from CLL for years and who had been unjustly denied benefits for that disability, and we’re just very glad that the Court of Appeals agreed with our arguments and is doing the right thing in our opinion,” said Richard Spataro, a lawyer with the National Veterans Legal Services Program.

Spataro has been involved in the case for about two years, most recently helping prepare briefs in the appeal decided Thursday.

More broadly, Spataro said, if researchers link other disabilities to Agent Orange, “this decision will preclude VA from re-litigating and trying to deny retroactive benefits for those veterans.”

A spokesman for VA did not immediately respond to a message left after business hours Thursday.