The opinion of the court was delivered by: Henderson, District Judge.
The matter came on for hearing on Monday, November 16, 1998. Having
carefully considered the parties' oral and written arguments, and the
entire record herein, the Court concludes, for the reasons set forth
below, that plaintiffs' motion should be granted in part and denied in
part consistent with this Order.
In order to put the instant dispute in context, it is necessary to
review the underlying litigation and our 1989 ruling. As explained in
that ruling, the United States Armed Forces used Agent Orange, a chemical
defoliant containing the toxic substance dioxin, to clear dense jungle
land in Vietnam during the war. Many veterans believed that their
exposure to Agent Orange, "`one of the mostly highly toxic substances
known to the scientific community,'" Nehmer v. U.S. Veterans' Admin.,
712 F. Supp. 1404, 1407, n. 1 (N.D.Cal. 1989) (citation omitted), caused
them to contract several debilitating or deadly diseases. Many veterans
(or their surviving kin) sought compensation from the VA claiming that
diseases they developed after service in Vietnam were related to their
exposure to Agent Orange during military service. The VA. however,
consistently took the position that only one disease — a skin
condition called chloracne was associated with exposure to Agent Orange,
and thus "routinely denied compensation for veterans who allege[d] that
exposure to Agent Orange has caused diseases other than chloracne." Id.
In response to the controversy over Agent Orange, Congress in 1984
enacted the Veterans' Dioxin and Radiation Exposure Compensation
Standards Act ("the Dioxin Act"), Pub.L. 98-542 (HR 1961), 99 Stat.
2725, 98th Cong.2d Sess., reprinted in part at, 38 U.S.C. § 1154
note. The Act "was passed amidst veterans' `concern[s] about possible
long-term health effects of exposure to herbicides containing dioxin'
. . . as well as `scientific and medical uncertainty' regarding the
long-term health effects of Agent Orange exposure." Id. (citation
omitted). The purpose of the Act was "to ensure that disability
compensation is provided to veterans `for all disabilities arising after
[service in Vietnam] that are connected, based on sound scientific and
medical evidence, to such service.'" Id. (citation omitted).
The Act authorized the VA to conduct rulemaking to determine which if
any diseases, claimed to be associated with Agent Orange exposure, should
be deemed "service connected." To this end, the VA was required to
appoint an advisory committee which would study the medical and scientific
evidence and make recommendations to the VA. The VA was then required to
promulgate regulations identifying those diseases it deemed to be service
connected, based on "sound scientific and medical evidence," id. at
1408. Consistent with the above, the VA issued a final regulation
codified at 38 C.F.R. § 3.311a (1986). Under subsection (b) of the
regulation, veterans do not have to prove that they were exposed to Agent
Orange. Rather, any veteran who served in Vietnam is automatically
"presumed to have been exposed to a herbicide containing dioxin."
38 C.F.R. § 3.311a(b). Subsection (d), however, reaffirmed the VA's
earlier position that it would recognize only one disease —
chloracne — as being sufficiently linked to Agent Orange to qualify
as "service connected." Id. at 1408.
In February 1987, plaintiffs filed this class action challenging
38 C.F.R. § 3.311a(d) on a variety of grounds. After considering the
parties' cross-motions for summary judgment, this Court, in May of 1989,
(1) invalidated 38 C.F.R. § 3.311a(d), on the ground that the VA had
used too restrictive a standard to determine whether a disease is
sufficiently linked to Agent Orange to qualify as service connected*fn1
and (2) "void[ed] all
benefit decisions made under 38 C.F.R. § [3.]311[a](d)." Nehmer, 712
F. Supp. at 1409, 1416-18.
Two years later, in May of 1991, the parties agreed to a Final
Stipulation and Order ("Stip. & Order") which resolved the remaining
issues of injunctive and monetary relief for the class. With respect to
injunctive relief, the Stip. & Order set forth the VA's
responsibilities with regard to further rulemaking concerning Agent
Orange. As a result of this rulemaking, the VA, between 1990 and 1996,
found that a number of cancers are linked to Agent Orange using the
appropriate standard, and, as a result, they have been accorded service
With respect to monetary relief, the Stip. & Order requires the VA
to reopen and readjudicate previously denied claims that were voided by
the Court's May 1989 order if and when the VA issues new Agent Orange
regulations service-connecting diseases other than chloracne.
Specifically, paragraph 3 of the Stip. & Order provides that:
As soon as a final rule is issued service connecting,
based on dioxin [Agent Orange], any of [certain
specified diseases], and any other disease which may
be service connected in the future . . . the VA shall
promptly thereafter readjudicate all claims for any
such disease which were avoided by the Conrt's Order
of May 3, 1989 as well as adjudicate all similar
claims filed subsequent to the Court's May 3, 1989
Order without waiting for final rules to be issued on
any other diseases.
Paragraph 5 then states that, for those cases which are readjudicated
because the earlier denial was "voided" by the Court's order, the
"effective date" for disability compensation shall be the date the voided
claim was originally filed:
For any of [certain specified diseases], and any other
disease which may be service connected in the future
pursuant to paragraph 3 above, . . . [a]s to any
denials of claims which were voided as a result of the
Court's May 3, 1989 Order, the effective date for
disability compensation or dependency and indemnity
compensation ("DIC"), if the claim is allowed upon
readjudication pursuant to paragraph 3 and 4 above,
will be the date the claim giving rise to the voided
decision was filed.
The instant dispute concerns the scope of the VA's readjudication
obligations under paragraphs 3 and 5 of the Stip. & Order. As noted
above, the VA, as a result of this action and the newly applied
standard, has found that a number of diseases, besides chloracne, are
service connected based on their link to Agent Orange. Thus, there are
many class members who, during the time period when the invalid
regulation was in effect, filed a claim for service-connected benefits
based on a disease that the VA did not then recognize as linked to Agent
Orange — but which the VA now recognizes is so linked pursuant to
its revised Agent Orange regulations. Those claims were, of course, all
denied at the time they were filed.
The VA has taken the position that ¶ 3 of the Stip. & Order
does not require it to readjudicate such claims unless (1) the claim
specifically alleged that Agent Orange (or
herbicides) was a factor in the veteran's death or injury, or (2) the
VA's denial of the benefits expressly cited to 38 C.F.R. § 3.311a as
grounds for the denial. S., VA Adjudication Procedures Manual*fn3
M21-1, part VI, Change 52 (August 28, 1996), Section 7.20(d)(3), Stichman
Decl., ¶ 5 and Exh. 26. Plaintiffs counter that the Stip. &
Order requires the VA to readjudicate those claims in which the disease
causing death or injury is later service connected under revised Agent
Orange regulations, regardless of whether the applicant (1) expressly
referenced Agent Orange in his or her claim, or (2) the VA expressly
cited 38 C.F.R. § 3.311a in denying the claim.
The instant dispute arose when counsel for plaintiffs learned of the
situation of two class members, Rosa Aponte and Janet George, who first
filed applications in 1985 and 1987 on behalf of deceased spouses who
served in Vietnam. Ms. Aponte's application for service-connected death
benefits asserted that her husband's cause of death was "due to service"
but did not expressly allege that Agent Orange or herbicides were a
factor in his death. The cause of death was identified as lung cancer.
The VA denied her claim for death benefits on the pound that the evidence
did not show that the ...