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What happens now that veterans can file class-action suits against VA?

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WASHINGTON — A recent federal court ruling allowing class-action suits against the Department of Veterans Affairs could lead to a host of new legal options for veterans who share similar illnesses, service records or bureaucratic headaches.

“It is a watershed moment,” said Greg Rinckey, a founding partner of the the law firm Tully Rinckey PLLC, which specializes in military law. “For veterans dealing with Gulf War illness or Agent Orange claims … this makes it easier for them to fight against big government.”

On Aug. 23, an eight-judge panel on the U.S. Court of Veterans Appeals ruled that in “appropriate cases,” class-action lawsuits against VA will be allowed. In the ruling, Chief Judge Robert Davis wrote that he hopes the decision will “shape our jurisprudence for years to come and … bring about positive change for our nation’s veterans.”

Previous court rulings had questioned long-standing precedent prohibiting such group lawsuits, even as other class-action filings have been brought against other federal entities. Rinckey said the move makes it possible for a group of veterans with similar grievances to use their numbers to put pressure on VA, and win legal relief.

“For an individual vet, this doesn’t change anything,” he said. “But it opens a whole new type of cases that can be brought against VA, and how those veterans complaints can be answered.”

The irony of the appeals court ruling is that the case which allowed class-action lawsuits to move forward — Monk v. Wilkie — denied the plaintiff’s claim that his case should proceed as one. The panel ruled his desire to group together all veterans facing a wait of more than a year for appeals claims did not meet previously established standards for forming a class.

Catherine McCarthy, a student at the Veterans Legal Services Clinic at Yale Law School who handled the Monk lawsuit, said officials there are still considering whether to refile the case with new parameters.

But she said the ruling provides a roadmap for a host of other legal complaints. In several other clinic cases, plaintiffs have already eyed class-action suits for veterans who were exposed to toxic chemicals while serving, and for veterans whose benefits cases are stuck in bureaucratic processing.

“It’s still trial and error at this point to see what will work,” she said. “But it’s a great opportunity, because so much of what we hear wrong about VA are systemic problems, not just one veteran dealing with a single issue.”

John Rowan, national president of Vietnam Veterans of America, said when he first heard of the court ruling, his first thoughts turned to the ongoing Agent Orange fights between his membership and VA.

The department has a long-list of rare cancers and other illnesses connected to exposure with the chemical defoliant during the Vietnam War, allowing veterans to receive expedited consideration for benefits.

But Rowan said some veterans who served in the region are excluded from that presumptive status — including so-called “blue water” veterans who served in ships off the coast of Vietnam — and others have rare medical problems like brain cancer not covered in existing department policies. A class-action suit by either of those groups might force VA policy changes.

“The good thing is once there is a court ruling, it’s a done deal,” he said. “If the court orders them to make a change, there’s no budget aspect to it like there is with legislative fixes.”

Rinckey said veterans dealing with burn pit exposure illnesses and other toxic chemical exposure from the recent wars could also use the new legal avenues to force VA changes. But one thing the new legal precedent won’t alter is the timeline for these type of lawsuits to be resolved.

“VA moves very slow on these issues, but so do the courts,” he said. “And now you’ll have to establish a class, support that and then argue for a fix. It’s a lot of time and expense, so you won’t see every small law firm jumping on this.”

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