A federal appellate court has given the Department of Veterans Affairs 30 days to issue new rules for paying disability benefits to Vietnam veterans suffering from three Agent Orange-associated diseases.
The rules could affect benefits for an estimated 200,000 Vietnam veterans or their survivors. The three diseases are ischemic heart disease, Parkinson’s disease and B-cell leukemias.
The unanimous panel ruling yesterday came in response to a request for a writ of mandamus by a coalition of veterans service organizations assisted pro bono by Chadbourne & Parke partner Thomas Riley.
The VA had argued it could not issue the rules by a June 23rd statutory deadline because it was waiting for the Office of Management and Budget to review them.
“Congress clearly imposed on the Secretary a date-certain deadline to issue a final regulation,” wrote Chief Judge Randall Rader for the panel in In Re Paralyzed Veterans of America. “Under such circumstances, the agency has no discretion in deciding to withhold or delay the regulation, and failure to comply is unlawful.”
Bart Stichman, co-executive director of the National Veterans Legal Services Program, said the coalition filed the request for a writ of mandamus last month because veterans “should not have their compensation claims delayed because two federal agencies can’t get their act together and comply with the law.”
The date on which the rules are published is crucial to many veterans, he explained, because it affects the amount of benefits they may receive. If a Vietnam veteran or survivor files a claim before the rules are published, they are eligible for benefits retroactive to the date the claim is filed – even though VA publishes the rule after the claim is filed. However, the VA estimates that as many as 150,000 Vietnam veterans and survivors will not file their paperwork until after the rules are published. The date of publication is important to these veterans and survivors because by law, they cannot receive retroactive benefits for any period prior to the date of publication. Thus, for every month that publication is delayed, these veterans and survivors lose a month of retroactive benefits.
The veterans’ coalition initially sought in a letter to the VA to have the rules published by March 12, 2010, after the VA missed a Feb. 19 publication deadline. Besides the National Veterans Legal Services Program, the service organizations involved in the Federal Circuit case included the Paralyzed Veterans of America, the Non-Commissioned Officers Association, and United Spinal Association/VetsFirst.
The Federal Circuit panel also included Judges William Bryson and Kimberly Moore.