Nehmer v. US VETERANS'ADMIN.

• Citation: 712 F. Supp. 1404
• Decision Date: 15 May 1989
• Docket Number: Civ. A. No. C 86-6160 TEH.
• Court: U.S. District Court — Northern District of California
• Parties: Beverly NEHMER, Claude Washington, Linda Wagenmakers, Robert Fazio, George Claxton, Julio Gonzales, Paul Ray Jensen, William Madden, David Maier, Bruce Miller, Richard Frahm and the Vietnam Veterans, Plaintiffs, v. UNITED STATES VETERANS' ADMINISTRATION, The Veterans' Advisory Committee on Environmental Hazards, The Scientific Council of the Veterans' Advisory Committee on Environmental Hazards, and the Administrator of Veterans' Affairs, Defendants.

712 F. Supp. 1404

Beverly NEHMER, Claude Washington, Linda Wagenmakers, Robert Fazio, George Claxton, Julio Gonzales, Paul Ray Jensen, William Madden, David Maier, Bruce Miller, Richard Frahm and the Vietnam Veterans, Plaintiffs, v. UNITED STATES VETERANS' ADMINISTRATION, The Veterans' Advisory Committee on Environmental Hazards, The Scientific Council of the Veterans' Advisory Committee on Environmental Hazards, and the Administrator of Veterans' Affairs, Defendants.

Civ. A. No. C 86-6160 TEH.

United States District Court, N.D. California.

May 3, 1989.

As Amended May 15, 1989.

COPYRIGHT MATERIAL OMITTED

Linda S. Peterson, Robert I. McMurry, Los Angeles, Cal., Barton F. Stichman, Vietnam Veterans of America Legal Services, Washington, D.C., for plaintiffs.

Richard K. Willard, Asst. Atty. Gen., Joseph P. Russoniello, U.S. Atty., G. Christopher Stoll, Asst. U.S. Atty., Lisa Olson, Theodore Hirt, Charles Sorenson, Jr., Attys., Mona S. Butler, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for defendants.

ORDER

THELTON E. HENDERSON, District Judge.

This matter comes before the Court on cross-motions for summary judgment. After careful and extensive consideration of the parties' lengthy briefs and oral arguments of counsel, the Court hereby grants summary judgment in part to plaintiffs and summary judgment in part to defendants. The Court finds that defendants failed to comply with the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, 38 U.S.C. § 354 note (hereinafter "Dioxin Act" or "Act") by erroneously interpreting two provisions of the Act. As a result, a portion of the regulation promulgated by the VA and codified at 38 C.F.R. § 3.311 is invalid, and the Court remands this case to the Veterans Administration for further proceedings not inconsistent with this opinion.

I. Factual Background.

This lawsuit is another round in the conflict between Vietnam Veterans and the United States Government over Agent Orange, a chemical defoliant used by the United States Armed Forces in Vietnam during the 1960's to clear dense jungle land. Many veterans believe that their exposure to the chemical dioxin (contained in Agent Orange) has caused them to contract several debilitating diseases, particularly soft tissue sarcoma ("STS") (malignant tumors that form in muscle, fat, or fibrous connective tissue) and porphyria cutanea tarda ("PCT") (deficiencies in liver enzymes). In the late 1970's, veterans filed a class action lawsuit against the manufacturers of Dioxin and the United States to obtain compensation for their alleged injuries. In 1984, the manufacturers agreed to establish a $180 million fund to compensate class members. In Re Agent Orange Product Liability Litigation, 597 F.Supp. 740 (E.D.N.Y.1984) aff'd 818 F.2d 145 (2d Cir.1987). However, actions against the United States were dismissed; the Second Circuit applied the doctrine developed in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) to bar recovery for injuries suffered through military service. In Re Agent Orange Product Liability Litigation, 818 F.2d 194 (2d Cir. 1987).

Veterans also pursued their claims against the United States in another forum: they sought disability compensation from the Veterans' Administration, claiming that the diseases they incurred were caused by exposure to Agent Orange during military service in Vietnam. However, the VA has consistently taken the position that only one disease — chloracne, a skin condition — arises from exposure to Agent Orange. Accordingly, the VA has routinely denied compensation for veterans who allege that exposure to Agent Orange has caused diseases other than chloracne. As of October 1, 1983, 9170 veterans filed claims with disabilities that they allege were caused by Agent Orange; 7709 were denied compensation because the VA found that the claimed diseases were not service connected. House Report No. 98-592, reprinted in U.S.Code Cong. & Adm.News, 98th Cong. 2d Sess., 1984, at 4452.

In 1984, Congress enacted the Veterans' Dioxin and Radiation Exposure Compensation Standards Act (Dioxin Act), 38 U.S.C. § 354 note. The Act was passed amidst veterans' "concerns about possible long-term health effects of exposure to herbicides containing dioxin," section 2(1), as well as "scientific and medical uncertainty" regarding the long-term health effects of Agent Orange exposure. Section 2(1).¹ The Act's purpose is 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." Section 3.²

The Act dramatically alters the process governing Agent Orange disability claims. Rather than have the VA determine in individual adjudicatory proceedings whether a particular veteran's claimed disease was caused by Agent Orange exposure, the Act authorizes the Administrator of the VA ("Administrator") to conduct rulemaking to determine which diseases will be deemed service connected for all diseases claimed to be caused by Agent Orange exposure.³

To achieve these purposes, the Act requires the VA to appoint an advisory committee composed of experts in dioxin, experts in epidemiology, and interested members of the public to review the pertinent literature on dioxin and submit periodic recommendations and evaluations to the Administrator. Section 6.⁴ The Act also compels the Administrator to adopt regulations governing the evaluation of the scientific evidence. Id. at Section 5(b)(1)(A). Finally, after receiving the recommendations of the Advisory Committee and other members of the public, the Act requires the Administrator to promulgate a regulation identifying diseases to be deemed service connected, based on "sound scientific and medical evidence". Section 5(b)(2)(A)(i).

The Advisory Committee was established on March 4, 1985. The committee included four lay members with a demonstrated interest in dioxin issues, three recognized specialists on the health effects of dioxin, and five scientists with expertise in epidemiology, three of whom also had extensive experience studying the effects of dioxin.

On April 22, 1985, the Administrator published a proposed rule. 50 Fed.Reg. 15848. The rule sets forth five factors to govern evaluation of the scientific evidence. Id. The rule also proposes service-connection for only one disease — chloracne manifesting itself within three months of a veteran's service. The proposed rule states that "sound scientific and medical evidence does not support a causal association between dioxin exposure" and any other diseases. Id. at 15849-15850.

Also on April 22, 1985, the Advisory Committee met for the first time. The Committee received background information on the Act and scientific studies on the effects of Agent Orange exposure. At the second meeting on June 24-25, 1985, the Committee reviewed a number of studies on dioxin's effects on human populations and received written comments on the proposed regulation. The Committee recommended that the Administrator adopt the five factor guidelines in the proposed rule and agreed with the VA that only chloracne should be deemed service-connected. The Committee transmitted its findings to the Administrator.

On August 26, 1984, the VA published a final regulation identical to the proposed rule. 38 C.F.R. 3.311a(d) states that "sound scientific and medical evidence does not establish a cause and effect relationship between dioxin exposure" and any other disease but chloracne. The regulation does not preclude a veteran from proving in an individual case that a claimed disease was caused by Agent Orange exposure, but as of December 1987, over 31,000 veterans have been denied compensation under this regulation. Nehmer v. U.S. Veterans' Administration, 118 F.R.D. 113, 120 (N.D. Cal.1987) (order granting class certification).

Following adoption of the regulation, the Advisory Committee has continued to evaluate scientific studies, reviewing over seventy studies, reports, and articles on dioxin. However, the Committee has not recommended that the Administrator amend the regulation to grant service connection to any other disease.

II. Statement of the Case.

On February 2, 1987, plaintiffs, (Vietnam veterans and survivors of veterans) filed this action. Plaintiffs allege that the final regulation is invalid because the Advisory Committee and the VA violated provisions of the Dioxin Act, the judicial review provisions of the Administrative Procedure Act, (APA) 5 U.S.C. §§ 701-706, the Fifth Amendment of the United States Constitution, and the Federal Advisory Commission Act (FACA) 5 U.S.C.App. §§ 1-15. On December 22, 1987, this Court certified a class to litigate these claims. Nehmer v. Veterans' Administration, 118 F.R.D. 113 (N.D. Cal.1987). The class consists of all current or former service members (or their survivors) who are eligible to apply for benefits based on dioxin exposure or who have already applied and been denied claims for benefits based on dioxin exposure. Both plaintiffs and defendants now move for summary judgment. Because this suit challenges a federal agency's compliance with statutory provisions, and this court's review of the agency's action is limited for the most part to the administrative record, this case is well suited for summary judgment.

Plaintiffs challenge the Administrator's and the Advisory Committee's compliance with the statute on the following grounds:

1) The Advisory Committee failed to thoroughly review the pertinent scientific studies, and wrongfully chose not to review studies on animal populations, even though these studies allegedly demonstrate a link between dioxin exposure and diseases other than chloracne;

2) The VA's five factor guidelines for evaluation of scientific evidence wrongfully precluded consideration of animal studies;

3) The VA wrongfully required that the scientific evidence demonstrate a "cause...