New Bipartisan Legislation on Toxic Exposure Announced
On Wednesday, May 18, 2022, Senate Veterans’ Affairs Committee Chairman Jon Tester and Ranking Member Jerry Moran announced a bipartisan agreement on legislation to provide improved benefits and health care to veterans suffering from toxic exposure, including Agent Orange in Thailand and burn pits, as well as expand exposure-related research, resources, and training.
What Does this Legislation Entail?
The Sergeant First Class Heath Robinson Honoring Our Promise to Address Comprehensive Toxics (PACT) Act of 2021 is part of a bipartisan agreement designed to provide “veterans and their families with health care and benefits,” as well as “historic relief to all generations of toxic-exposed veterans.”
Who is Part of this New Agreement?
While this agreement was announced by Senators Tester and Moran, it came together as a part of year-long negotiations amongst Democrats, Republicans, House Veterans’ Affairs Committee members, President Biden’s Administration, and Veterans Service Organizations.
In a joint statement released by Senators Tester and Moran, they acknowledged that veterans have “been living with chronic illnesses as a result of exposures during their time in uniform” for far too long. The legislation should take “necessary steps to right this wrong,” as well as providing “veterans and their families with the health care and benefits they have earned and deserve.”
To be clear, the legislation central to this agreement has not been passed yet. In order for the proposed legislation to become law, it needs to be passed by the Senate and the House, and then signed into law by the President.
What Would This Legislation Do, If Passed?
If enacted, the new law will:
- Expand VA health care eligibility to post-9/11 combat veterans, which is estimated to include more than 5 million toxic-exposed veterans
- Create a framework for the establishment of future presumptions of service connection related to toxic exposure
- Add 23 burn pit and toxic exposure-related conditions to VA’s list of service presumptions, including hypertension
- Expand presumptions related to Agent Orange exposure to include Thailand, Cambodia, Laos, Guam, American Samoa, and Johnston Atoll as locations where in VA will concede Agent Orange exposure
- Strengthen federal research on toxic exposure
- Improve VA’s resources and training for toxic-exposed veterans
- Invest in VA claims processing, VA’s workforce, and VA health care facilities
Breaking Down the Honoring Our PACT Act
On Tuesday, May 24, the full text of the legislation was released. Below is a breakdown of the text of the bill and what it means for veterans.
Expand Health Care for Toxic Exposed Veterans and Other Veterans
The bill defines toxic exposed veterans as those who participated in a toxic exposure risk activity while serving active duty, active duty for training, or inactive duty training. These veterans could become eligible for expanded hospital care (including mental health services and counseling), medical services, and nursing home care for any illness. Veterans who were deployed in support of a contingency operation are also eligible for these health care services. Contingency operations include:
- Operation Enduring Freedom
- Operation Freedom’s Sentinel
- Operation Iraqi Freedom
- Operation New Dawn
- Operation Inherent Resolve
- Resolute Support Mission
VA will also provide health care for veterans who may lack access. The legislation includes language indicating that VA must conduct a study on access to VBA and VHA benefits in territories and freely associated states of the US – including Federated States of Micronesia, Republic of the Marshall Islands, Republic of Palau, American Samoa, Commonwealth of the Northern Marianas Islands, Guam, Puerto Rico, and the Virgin Islands. VA will assess deficits in the availability and accessibility of these benefits compared to elsewhere in the United States.
Create Framework for Adding/Removing Presumptive Conditions
The bill includes a framework that can be used going forward for adding and removing presumptive conditions to VA’s list. Ultimately, the Secretary of VA “shall determine whether to establish or to remove presumptions of service connection based on toxic exposure.” However, the Secretary must go through certain steps before making any changes to the presumptive list.
For example, the Secretary will need to give the public an opportunity to comment on proposed formal evaluations to add or remove a presumption. The Secretary will also need to hear advice from the Working Group, a group consisting of personnel from the Veterans Health Administration and the Veterans Benefit Administration. The Working Group can provide recommendations to the Secretary about which medical conditions should be added to the presumptive list.
The bill stipulates that “not later than 160 days after the date on which the Secretary receives a recommendation to establish a presumption of service connection,” they need to commence issuing regulations to set forth the presumption and designate, in the regulations, any time frame during which a health effect must manifest.
In terms of removing a condition from the presumptive list, the Secretary shall not consider the lack of evidence as sufficient to support a decision for removal of a presumption. There are also some safeguards in place for veterans who are awarded benefits based on a presumption that is later removed. Specifically, these veterans shall maintain entitlement to compensation on that basis, as will surviving dependents receiving DIC benefits based on a presumption that is later eliminated. Ultimately, no veteran or survivor covered under a presumption shall have their compensation reduced solely because of the removal of an illness from the presumptive list.
Add 23 Conditions to the Presumptive List for Toxic Exposure
The following conditions have been added to the presumptive list for “covered veterans.” The bill defines a covered veteran as one of the following:
- A veteran who, on or after August 2, 1990, performed active military, naval, air, or space service while assigned to a duty station in, including air space above:
- Saudi Arabia
- United Arab Emirates
- A veteran who, on or after September 11, 2001, performed active military, naval, air, or space service, while assigned to a duty station, including the airspace above:
For these eligible veterans, the presumptive list will include:
- Asthma diagnosed after service
- Head cancer (of any type)
- Neck cancer (of any type)
- Respiratory cancer (of any type)
- Gastrointestinal cancer (of any type)
- Reproductive cancer (of any type)
- Lymphoma cancer (of any type)
- Lymphomatic cancer (of any type)
- Kidney cancer
- Brain cancer
- Pancreatic cancer
- Chronic bronchitis
- Constrictive bronchiolitis or obliterative bronchiolitis
- Granulomatous disease
- Interstitial lung disease
- Pulmonary fibrosis
- Chronic sinusitis
- Chronic rhinitis
These presumptions would be effective on the date of enactment for claims involving Dependency and Indemnity Compensation, or if the veteran is terminally ill, homeless, under extreme financial hardship, 85 years or older, or can show other sufficient cause.
The presumption is also effective upon the date of enactment if the claimed condition is asthma, respiratory cancer of any type, brain cancer, constrictive bronchiolitis or obliterative bronchiolitis, emphysema, granulomatous disease, interstitial lung disease, pleuritis, pulmonary fibrosis, sarcoidosis, chronic sinusitis, chronic rhinitis, and glioblastoma.
Otherwise, the presumptions would become effective on:
- October 1, 2023 for claims of chronic bronchitis and COPD;
- October 1, 2024 for claims of head cancer, neck cancer, gastrointestinal cancer, reproductive cancer, lymphoma, lymphomatic cancer, and pancreatic cancer;
- October 1, 2025 for claims of kidney cancer and melanoma
Expand Presumptions for Herbicide and Radiation Exposure
The bill also includes language to expand presumptions for herbicide exposure, including updated conditions and additional locations.
Specifically, the legislation would amend 38 USC § 1116 to extend the presumption of herbicide exposure to service members with active military, naval, air, or space service who served in:
- The Republic of Vietnam from January 9, 1962 to May 7, 1975;
- 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.
If a claim is for Dependency and Indemnity Compensation, or the veteran is terminally ill; homeless; under extreme financial hardship; 85 years old or older; or can show other sufficient cause, then this presumption would become effective immediately. Otherwise, the presumption would become effective on October 1, 2022.
Additionally, the legislation adds monoclonal gammopathy of undetermined significance (abnormal protein in the blood) and hypertension to the presumptive list of conditions for herbicide exposure. Again, if the claim is for DIC, the veteran is terminally ill; homeless; under extreme financial hardship; 85 years old or older; or can show other sufficient cause, then this becomes effective immediately, otherwise it will become effective on October 1, 2022. However, this will only apply retroactively for DIC claimants.
For veterans exposed to radiation, the legislation would add Enewetak Atoll from January 1, 1977 to December 31, 1980 to the list of presumptive locations for radiation exposure. It also adds service members who participated in the response to the Palomares, Spain B-52 plane crash from January 17, 1966 to March 31, 1967 to the list of presumptive locations for radiation exposure, as well as service members who responded to the B-52 plane crash at Thule Air Force Base in Greenland from January 21, 1968 to September 25, 1968.
Strengthen Federal Research on Toxic Exposure
VA will partner with the National Academies of Sciences, Engineering, and Medicine to assess possible relationships between military toxic exposures and mental health conditions. Mental health conditions included in the study are chronic multisymptom illness, traumatic brain injury (TBI), PTSD, depression, episodes of psychosis, schizophrenia, bipolar disorder, and suicide attempts, among others.
The bill stipulates that VA must also establish and maintain a public website for toxic exposure research (i.e., health consequences of toxic exposures during military service). This will be coordinated with the War Related Illness and Injury Study Center of VA.
Further, VA is required to publish a list of resources and establish an outreach program that offers information to veterans exposed to toxins in service, as well as to their families, caregivers, and surviving dependents.
Two more areas of research that VA will expand are the health effects of jet fuels and the health effects of Fort McClellan Exposure.
VA is required to issue a public report on the health effects of jet fuels used by the military. It must also identify what fuels were used, where they were used, safety measures taken, and the effects on service members based on length of exposure.
Additionally, VA must conduct an epidemiological study on the health trends of veteran who served at Fort McClellan between January 1, 1935 and May 20, 1999.
Improve VA’s Resources and Training & Invest in VA Claims Processing, Workforce, and Health Care Facilities
Certain parts of the PACT Act will also improve VA’s resources and training. The legislation also explains how funding may be used to pursue these paths.
Below are some examples:
- Electronic VA Communication – Veterans and their representatives will now have the option to receive VA communication electronically. Veterans can opt in and out at any time.
- Automated Claims Processing – VA will use the Cost of War Toxic Exposures Fund to continue developing the automated claims processing system and enhance claims processing capacity.
- Correction of Exposure Records – VA must help veterans update their records to reflect exposures to occupational or environmental hazards, if necessary.
- Improvement of VA Workforce – The last portion of the Act offers instructions on how VA can improve its workforce. This includes a national rural recruitment plan and other modifications.
Other Important Parts of the Legislation
Camp Lejeune – Veterans and other individuals who resided, worked, or were otherwise exposed for 30 days or more between August 1, 1953 and December 31, 1987 to contaminated water at Camp Lejeune may take legal action to obtain financial compensation for harm caused. These claims will be the exclusive jurisdiction of the Eastern District of North Carolina. It is important to note that awards granted will be offset by any federal benefits, including VA disability compensation. The statute of limitations is two years from the date of this Act or 180 days after an individual’s claim is denied.
Persian Gulf War (PGW) – This legislation also would amend 38 USC § 1117 to remove the requirement that a qualifying chronic disability claimed due to PGW service becomes manifest to a compensable degree during the presumptive PGW period, and now only requires that it became manifest to any degree at any time. It would also remove 1117(b) which allowed the Secretary to set the period of eligible service for PGW presumptions. PGW presumptive locations are now expanded to include Afghanistan, Israel, Egypt, Turkey, Syria, and Jordan.
What Happens Next?
As mentioned above, this legislation has not yet been passed into law.
However, President Biden recently released a statement indicating support for the legislation, saying that it is “driven by a desire to ensure that our nation’s veterans receive timely access to the benefits and services they deserve.” He also urged Congress to pass the bill and “deliver the vital benefits our veterans have earned.”
The bill is expected to pass in the coming weeks.
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