New Conditions Added to Agent Orange Presumptive List (2021)
CCK Law: Our Vital Role in Veterans Law
Three new conditions were recently added to the list of presumptive conditions for which the Department of Veterans Affairs (VA) grants service connection to Vietnam War veterans affected by exposure to the chemical herbicide Agent Orange. This means that tens of thousands of veterans will now be eligible for VA disability benefits if their Agent Orange exposure resulted in bladder cancer, hypothyroidism, or Parkinson’s Disease-like symptoms.
The addition of these conditions is unusual in that it came from Congress, not VA. Typically, presumptive conditions are determined by VA, based on significant supporting evidence from scientific studies. However, in this case, the conditions are being added as part of a measure included in the National Defense Authorization Act, or NDAA. The National Defense Authorization Act is a policy and spending bill for the Defense Department that passes through Congress every year.
In this article, CCK Law will discuss:
- The 3 newly added Agent Orange presumptive conditions in 2021
- VA’s presumption of exposure
- Why Congress, not VA, added these conditions
- And more
Newly Added Presumptive Conditions (2021 NDAA)
As mentioned, Congress, not VA, acted to expand the list of presumptive conditions linked to Agent Orange exposure. This unusual step ensures that more veterans will have a path to benefits. The three new VA presumptive conditions for Agent Orange are:
- Bladder Cancer
- Hypothyroidism (See our blog on thyroid conditions)
- Parkinson’s-like Symptoms (distinct from Parkinson’s Disease)
Background: Agent Orange and Its Legacy
Agent Orange was one of several herbicides used during the Vietnam War to destroy enemy crops. Its toxic byproduct, dioxin (2,3,7,8-TCDD), left lasting health consequences for many veterans decades after their service.
As a result of this dioxin contaminant, many veterans who were exposed to Agent Orange have developed serious health conditions, including:
- Respiratory cancer
- Diabetes Mellitus Type 2
- And others
Often, symptoms did not appear for years after exposure.
VA’s Presumption of Exposure to Agent Orange
In response to the many Vietnam-era veterans experiencing health-related concerns due to herbicide exposure, the Agent Orange Act of 1991 was passed.
The Agent Orange Act of 1991 created a presumption of exposure, meaning veterans no longer need to prove that they came into direct contact with the herbicide if they served in certain locations and timeframes:
- The Republic of Vietnam from January 9, 1962, to May 7, 1975 (including Brown Water and Blue Water Navy veterans)
- Thailand, at any US or Thai base from January 9, 1962, to June 30, 1976, without regard to the Veteran’s MOS or where on base they were located
- Laos from December 1, 1965, to September 30, 1969
- Cambodia, specifically at Mimot or Krek, Kampong Cham Province, from April 16, 1969, to April 30, 1969
- Guam or American Samoa, or in the territorial waters thereof, from January 9, 1962, to July 30, 1980
- Johnson Atoll or a ship that called at Johnston Atoll from January 1, 1972, to September 30, 1977
- 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
Other Locations Where Agent Orange was Used
VA also presumes service connection in the following locations:
- Laos from December 1, 1965, to September 30, 1969
- Cambodia, specifically at Mimot or Krek, Kampong Cham Province, from April 16, 1969, to April 30, 1969
- Guam or American Samoa, or in the territorial waters thereof from January 9, 1962, to July 30, 1980
- Johnson Atoll or a ship that called at Johnston Atoll from January 1, 1972, to September 30, 1977
VA’s Presumptive Conditions for Agent Orange
VA presumes service connection for the following Agent Orange-related conditions:
Why Did Congress Expand the Presumptive List, Not VA?
Normally, VA is the agency that adds new conditions when evidence warrants it. In this case, however, Congress stepped in after VA leadership declined to act on available research. Some points to keep in mind:
- VA usually adds conditions based on sufficient evidence linking them to Agent Orange
- Secretary Wilkie refused to expand the list despite studies dating back to 2016 linking the three new conditions
- Congress bypassed VA through the 2021 NDAA to ensure affected veterans could access benefits
Does This Change Impact Nehmer Class Members and Other Vietnam-Era Veterans?
Nehmer v. U.S. Department of Veterans Affairs was a class-action lawsuit brought against VA by the National Veterans Legal Services Program in 1986. As a result of the case, VA must take certain actions when it recognizes a new condition as scientifically linked to Agent Orange exposure.
Specifically, VA must:
- Identify all claims for the recognized condition that were previously filed and/or denied, and
- Pay retroactive disability and death benefits to the veterans or their survivors back to the date of the veteran’s initial claim.
The Nehmer class consists mainly of veterans who served in Vietnam and suffer from conditions VA has deemed presumptive. It is essential to note that, since three new conditions have been added to the list, veterans who suffer from one of these conditions may now be considered part of the Nehmer class.
This is particularly relevant to veterans who previously filed a claim for one of the three conditions but were denied. These veterans may now be able to secure benefits with an effective date back to the date of the original claim.
PACT Act Adds New Conditions and Locations to VA’s Presumptive List
In addition to the 2021 NDAA, the Honoring Our Promise to Address Comprehensive Toxics Act (PACT Act) of 2021 was officially enacted in July 2022. Alongside other legislation regarding burn pits and VA health care, this bill expanded Agent Orange presumptions to include additional locations and time periods.
Now, veterans exposed to Agent Orange can also receive presumptive service connection for:
- Hypertension: High blood pressure (i.e., when the force of blood against the artery walls is too high)
- Monoclonal Gammopathy of Undetermined Significance (MGUS): A condition in which abnormal protein is in the blood. MGUS can be precancerous
The PACT Act also expanded the Agent Orange presumption of exposure list to include:
- Thailand
- Cambodia
- Laos
- Guam
- American Samoa
- Johnston Atoll
Any veteran with active military, naval, air, or space service in one of these locations—in addition to service in Vietnam, on or near the Korean DMZ, and on or near C-123 aircraft—can qualify for presumption of exposure to Agent Orange.
When President Biden officially signed the PACT Act into law, he and VA Secretary McDonough announced that the rollout period for certain presumptive conditions for covered veterans would be waived.
Initially, these presumptions were effective upon the date of enactment of the PACT Act only for certain conditions, while presumptions for other conditions would become effective on a rolling basis over the next few years. Now, with this new rollout plan, the presumption for all conditions is effective from the date the PACT Act was signed (August 10, 2022).
CCK Can Help Veterans Affected by Agent Orange Presumption Expansion
If you are a Vietnam-era veteran suffering from one of the newly determined Agent Orange presumptive conditions, the veteran’s disability team at Chisholm Chisholm & Kilpatrick LTD may be able to assist you.
Whether you are filing an initial claim, appealing a denial of benefits, or seeking an earlier effective date, an accredited attorney from CCK may be able to guide you through the process. Call CCK Law today at (800) 544-9144 for a free case evaluation with a member of our team. You can also request a free case evaluation by reaching out to us online.
