Bladder Cancer and Agent Orange
After many years of fighting for recognition, Vietnam-era veterans who were exposed to Agent Orange and later developed bladder cancer will qualify for presumptive service connection for their cancer as a result of the National Defense Authorization Act for Fiscal Year 2021.
Impact of Agent Orange Exposure on Bladder Cancer
Evidence linking agent orange exposure to bladder cancer has existed for years, but it took an act of Congress at the end of 2020 to force VA to update its presumptive list.
This Act comes following the “Veterans and Agent Orange: Update 2014” report that was released in March of 2016. In this report, the National Academy of Medicine released new research that, for the first time, recognized that evidence exists regarding a link between bladder cancer and Agent Orange exposure.
Specifically, the report stated there was “limited or suggestive” evidence of an association, which is an upgrade from its previous “inadequate or insufficient” association. This determination was based on evidence that higher levels of exposure to herbicide agents are associated with an approximately 2-fold increase in death from bladder cancer. The updated report also studied the connections between hypothyroidism, hypertension, and Parkinson’s-like symptoms, and exposure to Agent Orange.
In November 2017, VA sent a recommendation to the White House’s Office of Management and Budget that bladder cancer, along with the three other conditions, be added to the list of presumptive conditions. However, VA has yet to take any other action in regards to this matter. Instead, in August 2018, VA leadership informed the House Committee on Veterans’ Affairs that it was waiting on the results of two studies concerning mortality and morbidity, the second of which might not be complete until 2020. VA maintained that such research is necessary as it could provide more evidence of a connection between these conditions and Agent Orange exposure until the Act was passed.
Is VA Required to Add New Conditions to the Agent Orange Presumptive List?
In 1991, the Agent Orange Act was designed to respond to the many health-related concerns expressed by Vietnam-era veterans in relation to herbicide exposure. The Act set forth many requirements that VA must adhere to. Specifically, the Act required VA’s Secretary to contract with the Institute of Medicine (IOM).
The IOM must submit Health and Medicine Division Reports on Agent Orange every two years, at a minimum, that reviews and summarizes the link between exposure to herbicides during service and certain conditions. In developing the report, the IOM must consider useful clinical data gathered from VA medical exams and treatment provided after 1981 to Vietnam-era veterans who sought VA healthcare based on Agent Orange exposure.
Ultimately, the IOM must determine if there is a statistical association between exposure to herbicides and a specific disease, and if there is evidence of a causal relationship. Whenever the Secretary determines that a positive association exists between Agent Orange exposure and certain conditions, presumptive service connection is warranted.
Timeline of the Inclusion of Bladder Cancer in the Agent Orange Presumption
2019 Update: VA to Decide on Agent Orange Presumptive Status of Bladder Cancer
On March 26, 2019, VA Secretary Robert Wilkie testified before the Senate Veterans’ Affairs Committee about President Trump’s fiscal year 2020 budget request for the Department of Veterans Affairs. During this hearing, Senate members asked Secretary Wilkie to comment on the status of the above-mentioned conditions, including bladder cancer. Veterans groups have been calling on VA to add these conditions to the list of presumptive diseases related to Agent Orange exposure.
In response to this, Executive in Charge of the Veterans Health Administration, Dr. Richard Stone, noted that VA hopes to make a decision regarding the presumptive status of these conditions within the next 90 days. If added to the list of presumptive conditions, veterans with eligible service who are suffering from bladder cancer will no longer have to prove a connection between their condition and service, thereby establishing an easier path to disability compensation.
2020 Update: Agent Orange and Bladder Cancer Decision Delayed
Still under pressure from Congress to determine whether to add four conditions, including bladder cancer, to the list of presumptive conditions associated with Agent Orange exposure, VA officials are disputing scientific evidence and stating that the department will wait for additional research. In January 2020, VA Secretary Wilkie reported “significant concerns and limitations” with several IOM studies concluding that there is suggestive or sufficient evidence linking bladder cancer to Agent Orange exposure.
According to Wilkie’s report, which was sent to the House and Senate Veterans Affairs committees, the IOM did not identify any “definitive causal links” between Agent Orange and bladder cancer. Furthermore, he noted that bladder cancer has other risk factors outside of herbicide exposure, such as diet and tobacco use, that can contribute to its development. Secretary Wilkie also stated that IOM members relied heavily on studies of Army Chemical Corps members “with known high occupational exposure” that may not reflect the experiences of most service members in Vietnam.
VA estimates the costs of this decision can range between $11.2 billion and $15.2 billion, depending on interpretations of a court ruling. As a result, VA continues to wait for the results of its own studies, which are not expected until late 2020.
Senators Introduce Bill for Agent Orange-Linked Conditions to Include Bladder Cancer
In March 2020, Senator Jon Tester, along with 34 other senators, introduced the Fair Care for Vietnam Veterans Act in response to VA’s ongoing delays. This bill would effectively force VA to provide disability compensation to veterans with hypertension, hypothyroidism, Parkinson’s-like symptoms, and bladder cancer due to Agent Orange exposure during military service. Lawmakers and veterans’ advocacy groups have continuously called on Secretary Wilkie to extend benefits to veterans with the aforementioned conditions related to Agent Orange exposure. As such, the proposed bill is a step towards helping the tens of thousands of veterans and their families who have been waiting for benefits.
2021 Update: Bladder Cancer Added to Presumptive Condition List
The 2021 NDAA, or National Defense Authorization Act, passed by Congress added bladder cancer to the list of presumptive conditions caused by Agent Orange exposure. Essentially, Congress bypassed the VA to include bladder cancer to the presumptive conditions list and, by statute, determined that there is a link between Agent Orange exposure and bladder cancer.
The inclusion of bladder cancer to the list will make it easier for veterans experiencing bladder cancer due to Agent Orange exposure to secure disability benefits. Many veterans previously were denied service connection for bladder cancer related to Agent Orange exposure prior to this inclusion. This could mean that thousands of veterans whose claims were previously denied could receive substantial compensation.
How to File a VA Disability Claim for Bladder Cancer
In order to file a claim for bladder cancer, the veteran will need to submit a diagnosis of bladder cancer. Additionally, if the veteran is seeking presumptive service connection due to Agent Orange exposure, they might want to submit any service records or evidence that has not already been submitted to VA which indicates they were in a location where Agent Orange was used. If the veteran served in the following locations during the specified timeframes, then they may qualify for presumptive service connection:
- Boots-on-the-ground in Vietnam, veterans with service aboard a ship that operated in the inland waterways of Vietnam (i.e., Brown Water veterans), or veterans with service aboard a ship in Vietnam’s territorial seas (i.e., Blue Water Navy veterans) between January 9, 1962 and May 7, 1975
- On or near the Korean demilitarized zone (DMZ) between September 1, 1967 and August 31, 1971
- Active duty and reservist personnel who had regular contact with C-123 aircraft between 1969 and 1986
Like filing most claims, veterans will want to use VA Form 21-526EZ to file the claim. On this form, the veteran can list “Agent Orange” under the column labeled “Examples of Exposure Type” in Section IV.
How VA Rates Active Bladder Cancer
For veterans suffering from an active form of service-connected bladder cancer, or those in a period of post-treatment convalescence, VA will assign a temporary and total disability rating. This 100 percent rating will remain for up to six months following the end of treatment. If a veteran’s bladder cancer remains active, VA will extend the temporary and total disability rating until the cancer goes into remission.
Once the veteran stops receiving treatment due to remission, VA will schedule a follow-up Compensation & Pension examination in order to reevaluate the condition. At that time, veterans may still receive disability compensation for residual symptoms. VA will rate the most predominant residual, typically either renal (kidney) dysfunction or voiding dysfunction.
Renal dysfunction refers to poor function of the kidneys that may be due to a reduction in blood-flow to the kidneys. Typically, the kidneys regulate body fluid and blood pressure, as well as regulate blood chemistry and waste removal. Veterans may struggle with renal dysfunction following a bout with bladder cancer.
When rating renal dysfunction as a residual of bladder cancer, VA offers the following evaluations: 0, 30, 60, 80, or 100 percent, based on severity. For example, if a veteran requires regular dialysis, they will likely be rated as 100 percent disabled. Conversely, if the veteran’s residuals result in non-compensable ratings, they will be rated at 0 percent. Kidney functionality is gauged using blood tests to measure blood urea nitrogen (BUN) and creatinine levels.
Voiding dysfunction includes residuals such as urinary leakage, urinary frequency, and obstructed voiding:
- Urinary leakage is rated at 20, 40, or 60 percent, based upon the need for absorbent materials; the number of absorbent materials a veteran requires throughout the course of a day determines their disability rating
- Urinary frequency is rated at 10, 20, or 40 percent, and is dependent upon how often a veteran needs to empty their bladder throughout the day or night. For example, if a veteran must use the restroom at intervals less than one hour apart, or if they wake up to use the restroom five or more times per night, VA’s rating schedule calls for a 40 percent disability rating.
- Obstructed voiding occurs when the body retains too much urine. This condition is rated at 0, 10, or 30 percent. If a veteran requires “intermittent or continuous catheterization” to void the bladder, the rating schedule calls for a 30 percent rating.
Importantly, erectile dysfunction may result as a secondary condition to bladder cancer. Veterans who experience erectile dysfunction as a result of their service-connected bladder cancer may qualify for a level of special monthly compensation (i.e., SMC level K) for loss of use of a creative organ.
CCK Can Help Veterans Affected by Bladder Cancer
If you are a Vietnam-era veteran suffering from bladder cancer, the veteran’s disability team at Chisholm Chisholm & Kilpatrick LTD may be able to assist you. Now that bladder cancer is officially included on the list of presumptive conditions, you may want to seek assistance filing an initial claim, appealing a past denial, or seeking an earlier effective date.
The team at CCK may be able to guide you through the process. For more information, including a complimentary case review, contact us online or at 800-544-9144.
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