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New Conditions Added to Agent Orange Presumptive List

January 15, 2021
New Conditions Added to Agent Orange Presumptive List

Three new conditions were recently added to the list of presumptive conditions for which the Department of Veterans Affairs 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.

Understanding the Connection Between Agent Orange and Vietnam War Veterans

To fully grasp the significance of the changes made by the 2021 NDAA, it is helpful to first understand the decades-long impact of Agent Orange on Vietnam-era veterans.  During the Vietnam War, the United States used several herbicides to destroy its enemy’s crops. The goal was to interrupt their food supply, and to destroy foliage in the jungle to increase visibility to prevent ambush attacks.

Among these chemical agents, and perhaps the most well-known of the “rainbow herbicides” used during the Vietnam War, was an herbicide called Agent Orange.  Agent Orange contained a mixture of two kinds of herbicide agents (i.e., 2,4-D and 2,4,5-T).  However, as a byproduct of its production, it also contained the highly toxic dioxin contaminant 2,3,7,8-TCDD.

As a result of this dioxin contaminant, many veterans who were exposed to Agent Orange have developed serious health conditions.  These conditions include everything from respiratory cancer to Diabetes Mellitus Type 2, and often symptoms do 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 Act established a presumption of service connection, meaning that VA must assume that veterans who served during certain time periods in predetermined locations were exposed to Agent Orange.

A presumption of exposure replaces the element of service connection that requires veterans to provide proof of an in-service event, injury, or illness that led to their current disability.  Instead, VA considers herbicide exposure (i.e., Agent Orange) to be the in-service event for any veteran who served in the following locations during the specified timeframes:

  • 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

Presumptive Service Connection for Certain Conditions Associated with Agent Orange Exposure

In addition, the Agent Orange Act created a presumption of service connection.  Presumptive service connection means that veterans do not have to prove a medical nexus between their condition and their military service.

If their service meets one of the above criteria and their condition is included in VA’s list of presumptive conditions, VA will grant service connection.  The Act also gave the Secretary of the Department of Veterans Affairs the power to add conditions to this list over time through the creation of new regulations.

VA presumes service connection for the following Agent Orange-related conditions:

  • AL Amyloidosis
  • Chronic B-Cell Leukemia
  • Chloracne (if it presents within one year of exposure to a degree of 10 percent disabling)
  • 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 (if it presents within one year of exposure to a degree of 10 percent disabling)
  • Porphyria Cutanea Tarda (if it presents within one year of exposure to a degree of 10 percent disabling)
  • Prostate Cancer
  • Respiratory Cancers, including Lung Cancer
  • Soft Tissue Sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, and mesothelioma)

Congress Adds New Presumptive Conditions to VA’s List

As mentioned above, the passing of the 2021 NDAA means that Congress has bypassed VA and determined, by statute, the link between three new medical conditions and Agent Orange exposure.  These conditions, which are now part of the list of presumptive conditions, include:

  • Bladder cancer
  • Hypothyroidism: A condition in which thyroid gland does not produce enough of certain crucial hormones.
  • Parkinson’s-like symptoms: A condition with symptoms such as tremor, slow movement, impaired speech, and muscle stiffness that resembles Parkinson’s Disease but is not formally diagnosed as such.

The addition of these three conditions to VA’s presumptive list will make it easier for veterans suffering from bladder cancer, hypothyroidism, or Parkinson’s-like symptoms due to Agent Orange exposure to secure disability benefits from VA.

Why Did Congress Expand the Presumptive List, Not VA?

The addition of bladder cancer, hypothyroidism, and Parkinson’s-like symptoms to the list of presumptive conditions has been long and complicated process.  Typically, the Secretary of VA proposes a new regulation to add a condition (or conditions) to the list when sufficient evidence linking the condition to Agent Orange has been collected.

In this case, however, Secretary Wilkie refused to propose a regulation to add the three conditions, despite evidence from studies dating back to 2016.  These studies (e.g., Vietnam Era Health Retrospective Observational Study) concluded that there was “suggestive” evidence linking Agent Orange exposure to each of the above-mentioned conditions.  Further, similar studies that met the same threshold of “suggestive” evidence have been used to add presumptive conditions in the past.

As a result, a Congressional statue was needed to add bladder cancer, hypothyroidism, and Parkinson’s-like symptoms to VA’s list of presumptive conditions.  Congress achieved this by including a measure in the 2021 NDAA that would approve benefits for veterans suffering from three more conditions thought to be caused by exposure to the chemical herbicide Agent Orange.

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: (1) identify all claims for the recognized condition that were previously filed and/or denied; and (2) 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 important to note that since three new conditions have been added to the list, veterans who suffer from one of the three 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.

Veterans who served in Thailand, Korea, and other areas may have also exposed to and affected by Agent Orange.  In this instance, a veteran suffering from one of the established presumptive conditions would still have to prove the first two elements of service connection (i.e., a current diagnosis and an in-service event), but they would not have to prove the medical nexus, or link, between their diagnosis and the in-service event.

CCK Can Help Veterans Affected by the NDAA Presumption Expansion

If you are a Vietnam-era veteran suffering from one of the newly determined presumptive conditions (i.e., bladder cancer, hypothyroidism, Parkinson’s-like symptoms), 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.  For more information, as well as a complimentary case review, contact us online or at 800-544-9144.

Herbicides and their agents