VA Appeal Denied After 30-Year Wait

Denied. That has to be the scariest word for many disabled veterans after filing a claim for disability benefits. Unfortunately, appealing that denial could take your lifetime.

Recently, five veterans were denied a right to appeal in the Federal Circuit, the highest court before the Supreme Court for these claims. These five veterans filed an appeal back in 1979 based on the Veterans Administration publication regulating Agent Orange (AO) disability compensation. In its opinion, the Circuit said that it lacked the appropriate jurisdiction over the Administrative Agency because no one had jurisdiction over it prior to 1988. In a bit of a loophole, the guidelines used by the VA at that time were unpublished, which aided the VA’s claim that there was no oversight when the decision was first made.

The issue the veterans were appealing was the basic denial of the VA of all conditions that resulted from AO exposure other than “chloracne.” Chloracne is a type of skin deformity caused by exposure to certain toxic chemicals. This was the position mandated by the VA at that time:

“Except for a skin condition known as chloracne, there are presently no firm data to incriminate herbicides as causative agents of any other known category of disease or chronic symptom. However, a contaminant Dioxin, found in small quantities in defoliants is toxic.”

The actual list of disorders resulting from AO exposure ranges from cancer to birth defects to Parkinson’s disease. Between 1962 and 1971, the U.S. dumped at least 20 million gallons of Agent Orange type herbicides into Vietnam and surrounding areas. Anyone exposed to the chemicals may have lifelong diseases or disabilities as a result. For that reason, the VA recently developed a more robust approach to treating and compensating these veterans, especially when compared to what was in place in the 1970’s. The program and policy includes a specific compensation program directed right at AO exposed veterans.

Thankfully, our country is not nearly as ignorant as it was back then, but the court system seems unable to remedy early denials that were based on information grossly out of touch with scientific realities.

Again, Vietnam era veterans were at least “fortunate” enough to have the VA finally admit that AO caused the injuries and diseases it actually causes. But unfortunately for these five veterans, the VA and the U.S. Judiciary are still claiming an inability to right a wrong committed over 30 years ago.

At least the VA currently pays in large part for healthcare benefits while veterans battle with it to make the VA acknowledge that their injuries or diseases are similarly service related. Let’s hope it stays that way.



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  1. The Nehmer Court Order takes into account to adjudicate / re-adjudicate the (so-called) 30 (plus) years appeal made in 1979 . The Nehmer Training Guide February 2011 Revised makes it obvious and infers that the DVA actions were not that of which Congress intended; The DVA must process such claims to the Nehmer Court Order : The Nehmer Training Guide. The Lawyers are @ DVA Attn: Nehmer Working Group (211A) 810 Vermont Ave. N.W. Washington D.C. You can find the correct complete address in the Nehmer Training Guide( Mid pages)including Zip code. Nehmer Training Guide states: VA compensates class counsel for all of it’s work on Nehmer cases. Also, See Congressional Research Services / Statutory Presumptives ( by law clerk Nichols October 2010) to hold the the Nehmer Working Group (211A) “and” the DVA accountable.

  2. The anchorage area within Da Nang Harbor is within… “an estuary”… that consists of The Cu De River and The Han River ; surrounded by 3 shore lines; well sheltered from the open sea; well within the geographical borders of Vietnam. ” THE ESTUARY” definition / contents provides the scientific proof … presumption of exposure: by run-off erosion, defoliation,herbicides, pesticides, chemicals, to include raw sewage, ETC. . Apply Congressional Research Services / Statutory Presumptives (by law clerk Nichols 2010)… to include CONTIGUOUS OPERATIONS; And, …to include air quality, ETC. ; Apply the Nehmer Training Guide (February 2011) Revised; to have your claim(s) adjudicated / readjudicated. There are already claims approved for the inland waterway …Da Nang Harbor; ” THE ESTUARY” of the anchorage area now reviewed / revealed is substantive evidence. Let the Nehmer Working Group in Washington D.C. definitely know : VA compensates class counsel for all it’s work on Nehmer claims. See the Nehmer Training Guide for the correct address. The Statutory Presumptives (by CRS law clerk Nichols) apply to of within Vietnam. The Statutory Presumptives … also apply to of outside of Vietnam. The Buffalo Regional Office, again, denied my Compensation Claim(s) December 10, 2014. The Buffalo Regional Office denied the existence of any substantive evidence to support my claim(s), to that of researching …The Buffalo Office “intranet”. Hence, I sent the following information to DVA; Attn. Nehmer Working Group; Washington, DC : The January 2010 Compensation & Pension Bulletin Policy (211): Information on Vietnam Naval Operations; And, The June 2010 Compensation & Pension Bulletin Policy (211): ADDITIONAL Information on Vietnam Naval Operations. The history of The USS Newport News CA-148 includes operations in the Vinh Binh Province in the Mekong DELTA (see Jan. C & P Bulletin); The June C & P Bulletin ( Received by The Senate Committee on Veterans’ Affairs) lists the USS Newport News for operations of: Cua Viet River April 1969.
    The Substantive Evidence… in favor of my claim …did not come as a result of a VSO (etc.), either ! . Issues still remain including retro compensation. ([email protected] ).

  3. Veterans have been had by Congress. Kissinger was right we defend the people that control the money. They turn their backs on us and we still do nothing but complain. We need to do something united while we still can. Hopefully our military will support the people when the time comes and not be like Syria or other countries. This government is a sham and is full of deceit and corruption on all levels. As long as this constitution is our governing document we need to overthrow these liars and put real Americans in office. Look at what we have for representatives and leaders now. Used car salesmen and crooks.

  4. I sent in an appeal or Notice of Disagreement (NOD) on January 25th 2012. My original claim was completed January 31 2011 and I had a year to appeal. They received my NOD on January 25th 2012. They sent a letter February 9th 2012 saying my Nod was too vague and I needed to specify exactly what I was appealing. I then sent them another NOD on March 13th 2012 (within 60 day appeal window). They sent me another letter today saying they received my second NOD notice but that I filed too late and I should’ve replied no later than 31 January 2012 and that I can no longer appeal and their decision is now final. God I hate the VA! Good thing I have a certified hand receipt and the VFW sent my March 13th letter in for me…The VA has a lot of explaining to do…

  5. I think the VA wants to stall the connection between agent orange and illnesses scientific doctors find . The more years that pass the more vets die, and the less the VA will have to pay out. its already been almost fifty years for some of us I think its all about politics and they really don’t want to help us veterans. I think the wrong people are looking at paper work and scientific evidence

  6. Nemer did not do anything for us. The cardiologists diagnosed at the diagnosed non ischemic contrary to the doctor’s report we had back in 1994. Our denial said although left bundle branch blockage is considered ischemic we had to prove service connection…we are appealing through the D.A.V. our congressoman went haywire and let go of everyone that helped us….great job congress…go to freaking hell congress

    1. In Oct 2012 I turned in a claim for LBBB. How could you not prove service connection? I did a tour of Vietnam. Were you in Vietnam?

  7. I was informed by the VA that in January 2011 that the regs changed
    and tbey were mandated to process and complete over 200,000 AO cases
    prior to all other claims. I learned this when asking why my non AO case
    was taking so long.

    Hope this is helpful.

  8. ALL the paper work was sent in that was required and after months, the do not even respond to anything. I guess they just shit can it. its a shame

  9. I was sprayed with Agent Orange at a fire base on the border of South Vietnam and Cambodia with a huie Helicopter in the dry season with no way to take a shower or to wash off the only water we had was a tanker truck with water to cook and clean dishes with. Now iI’am legaly blind and the doctors say they can not rule out Agent Orange. I have Optic Neuropathy with no know causes but can not rule out Agent Orange. Had a comp and pen hearing August of 2010 and have not heard a word from anybody.Toxin is known to cause nerve damage.

  10. This is ridiculous that these men were denied and then denied access to remedy through the courts of the United States. This is a disgrace for any veteran to have to suffer.

  11. Can anyone relate to me about the time limit when to apply for Viet-Nam veterans, in other words when is the deadline to file for this claim.

  12. The VA still refuses to acknowledge and compensate veterans for A. O. related problems found in the “Ranch Hand” study. Hypertension (High Blood Pressure) is just one of several.
    What really rankles veterans is the VA’s penchant for treating less than perfect evidence as negative evidence, in a concerted effort to offset the “at least as likely as not” and equipoise is in favor of the veteran clauses in the laws.
    One glaring example of the VA’s attitude was/is a flow chart in the M-21 guide used to “rate” claims, and determine service connection. Heart Disease is at least aggravated by diabetes and can be caused by it. Further, diabetes starts the damage well before it reaches levels used to confirm and make a formal diagnosis. Even the VA’s own treatment gude acknowledges this.
    Yet the M-21 flow chart guides the rating officer to deny service connection when heart disease is diagnosed before diabetes reaches a formal diagnosis level.

    A.O. Presumptive veterans are fortunate in that the Nehmer court case made an “end run” around this practice, when combined with the recent secretary’s long overdue decision to cover IHD (A serious heart condition).

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