Agent Orange Presumptives: Locations, Conditions, and Periods of Service
What is the Presumption of Exposure?
Generally speaking, a presumption of exposure means that if a veteran has qualifying service (i.e. served in a specific location during a defined time frame), VA will presume that they were exposed to certain harmful chemicals or environmental hazards. The presumptive of exposure help replace the element of service connection that requires veterans to have an in-service event or symptom that caused their current disability. In these instances, VA counts the in-service exposure as the event. This is important because it creates an easier path for veterans to obtain benefits.
Conditions Associated with Exposure to Agent Orange
Agent Orange is an herbicide agent that was used by the United States military during the Vietnam War. Specifically, Agent Orange is a 50/50 mixture of two kinds of herbicide agents: 2,4-D and 2,4,5-T. Agent Orange also contained the contaminant TCDD as a byproduct of its production, which is the most toxic of all dioxins. VA acknowledges several conditions to be associated with exposure to Agent Orange, including the following:
- AL Amyloidosis
- Chronic B-Cell Leukemias
- Chloracne (or similar acneform disease)
- Diabetes Mellitus Type 2
- Hodgkin’s Disease
- Ischemic Heart Disease including Coronary Artery Disease, stable and unstable angina, myocardial infarction, and sudden cardiac death
- Multiple Myeloma
- Non-Hodgkin’s Lymphoma
- Parkinson’s Disease
- Peripheral Neuropathy, Early-Onset
- Porphyria Cutanea Tarda
- Prostate Cancer
- Respiratory Cancers, including Lung Cancer
- Soft Tissue Sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, and mesothelioma)
This list comes from when Congress mandated VA look into herbicide exposure and conduct further research on related health outcomes. The research is conducted by the National Academy of Sciences (NAS), and the Institute of Medicine (IOM) branch determines if there is a relationship between the toxins in Agent Orange and the development of various conditions. If you have qualifying service (see below) and one of the above-mentioned conditions, VA should presume exposure and subsequently service connection. However, if you were exposed to Agent Orange and developed a condition that is not on this list, you can still apply for benefits. Here, you would likely need to provide a medical nexus opinion showing how the condition was caused by herbicide exposure.
VA is constantly looking at ongoing research and adding conditions to this list. For example, VA is currently investigating whether to add bladder cancer, hypothyroidism, and Parkinson’s-like symptoms. VA talked about adding these conditions in March 2019 and indicated that it would make a decision in 90 days; however, this has yet to happen.
Locations of Presumptive Exposure
If you are a veteran who served “boots on the ground” in Vietnam between January 9, 1962 and May 7, 1975 then you are presumed exposed to herbicide agents. If you have a diagnosed condition from the list above, then service connection should be granted on a presumptive basis.
Blue Water Navy Veterans Presumptive
Blue Water Navy veterans include those who served in the “deeper” water surrounding Vietnam. In January 2019, a decision was issued in Procopio v. Wilkie in which the Federal Circuit overturned Haas v. Peake. Specifically, the Federal Circuit found that “Republic of Vietnam” includes both the country’s landmass and its territorial seas in which Blue Water Navy veterans served. As a result, Blue Water Navy veterans will now be afforded the same presumption of exposure to herbicide agents as those who served “boots on the ground” in Vietnam.
After that decision came out, Congress enacted Blue Water legislation that gives veterans precise coordinates where Blue Water Navy veterans were located, generally fitting within the 12 nautical miles seaward of the demarcation line. Therefore, any veteran who served within 12 nautical miles of Vietnam or within those coordinates can now be presumptively exposed to herbicides. This opens up the presumptive benefits to a great number of these Navy veterans.
However, VA Secretary Wilkie has issued a stay on all of these claims until January 2020. Veterans can still file for service connection if they are Blue Water Navy veterans, and their claims will enter the pending inventory, but VA will not make a decision until it decides how to determine which Navy ships were located where. Overall, it is still important to file for service connection as soon as possible in order to receive the earliest possible effective date and thereby the earliest start date of retroactive benefits to which you may be entitled.
Korean Demilitarized Zone (DMZ) Presumptive
If you served on or near the Korean DMZ between September 1, 1967 and August 31, 1971, you should be presumed exposed to herbicide agents. VA and the Department of Defense (DoD) have established a long list of units that are presumed exposed; however, if you were not in one of the units listed, VA might give some push back. Nonetheless, it is still possible to get service connection due to Agent Orange exposure. The Korean DMZ exposure presumptive can be tricky because instead of the standard used for Vietnam, VA uses the language “on or near the DMZ,” and so the question becomes what is considered “near the DMZ?”. VA has yet to answer this question.
VA has recognized that herbicide agents were used in Thailand; however, there is currently no Agent Orange presumptive. Instead, there is a policy holding that veterans stationed on certain Royal Thai Air Force bases (e.g. U-Tapao, Ubon, Udorn, Takhli) during the same time period as Vietnam veterans (January 1962 to May 1975) may have been exposed to Agent Orange. Specifically, if your military occupational specialty or job duties put you on or near the perimeter of the base, VA should concede exposure. There are certain military occupational specialties that VA will, as a policy matter, agree had perimeter involvement. For example, veterans in the Air Force who had military police dog handling duties, perimeter security, or can provide other credible evidence that they were on or near the perimeter, will have exposure conceded.
Army veterans in Thailand who provided perimeter security are also provided this concession. Other examples of jobs that involved being on or near the perimeter include jobs:
- On the flight line
- In the mechanist shop next to the flight line
- In the barracks next to the perimeter
- Managing supplies (i.e. driving across the perimeter each day into town to get supplies and come back)
Veterans should provide evidence beyond just service records, including lay statements detailing how they were near the perimeter, their occupational duties in service, and anything that is relevant to exposure near the perimeter. Pictures showing that you were along the perimeter or in an area without vegetation can also be helpful to substantiate your claim.
C-123 Aircraft Presumptive
The C-123 aircraft were used to spray Agent Orange in Vietnam and were then sent back to the United States and used by the Air Force and Air Force reserves. As a result, veterans might be exposed to herbicides even if they never set foot in any of the above-mentioned locations. If you were a member of a certain Air Fore unit where contaminated C-123’s were assigned and had regular contact with the aircraft between 1969 and 1986, then the Vietnam “boots on the ground” presumptive of exposure applies. If you then develop any condition associated with Agent Orange exposure, the presumption of service connection should apply as well. Reservists at certain bases within the same time period can also get the presumptive. 38 CFR § 3.307a lists the precise units and information about who qualifies.
Other Locations Where Agent Orange was Used
VA maintains a list both within the U.S. and outside of the U.S. where herbicides were either tested, stored, or used. Some veterans were involved in testing Agent Orange before it went into use and others were later involved in the disposal of any left over product after the conflicts were over. Therefore, the number of veterans affected is wide ranging and spans across many years and locations.
Common Mistakes VA Makes when Adjudicating Claims for Herbicide Exposure
When it comes to disability claims for conditions due to exposure to herbicides and Agent Orange in Thailand, VA often attempts to make a distinction between tactical herbicides and commercial herbicides as a basis on which to deny claims. When it comes to claims pertaining to herbicides used in Vietnam, VA will say that the herbicides were “tactical.” For herbicides used in Thailand, VA will then state that the herbicides in question were “commercial,” not tactical. This is inaccurate as records show that the herbicides sent to Vietnam were also sent to Thailand, so veterans in both Vietnam and Thailand were likely exposed to the same herbicides. Furthermore, the way in which you use the substance does not change the substance itself. In other words, just because the herbicide was used in a different location does not change the chemical composition of the herbicide.
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