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Agent Orange Presumptions

  1. What is a Presumption of Exposure?
  2. What is the Presumption of Service Connection?
  3. Conditions Associated with Exposure to Agent Orange
  4. How VA Decides which Conditions are Related to Agent Orange
  5. Difference Between Presumption of Exposure and Service Connection
  6. New Conditions to be Added to the Agent Orange List?
  7. Locations of Presumed Exposure
  8. Agent Orange in Vietnam Presumption
  9. Blue Water Navy Veterans and Agent Orange Exposure
  10. Stay on Blue Water Claims
  11. Agent Orange and the Korean DMZ
  12. Thailand Veterans Exposed to Agent Orange
  13. Thailand Perimeter Policy—Royal Thai Air Force Bases
  14. MOS Included in Thailand Agent Orange Policy
  15. Specific Royal Thai Air Force Bases
  16. Placing Yourself on the Perimeter with Evidence
  17. C-123 Aircraft and Agent Orange
  18. Other Locations Where Agent Orange was Tested or Stored
  19. Common Mistakes VA Makes Regarding Agent Orange Exposure
  20. Final Thoughts for Veterans

Video Transcription

*Please note: this transcript has been added to reflect legally accurate language of H.R.299 – Blue Water Navy Vietnam Veterans Act of 2019.

Maura: Good Afternoon, everyone. Thank you for joining us today on Facebook live. We are here at Chisholm Chisholm and Kilpatrick. My name is Maura Clancy. I’m joined by with Lindy Nash and Emma Peterson. And today, we are going to be talking about Agent Orange Presumptions. While we have our discussion today, we’re also going to be posting materials on the comments feed next to this video. As you follow along with us, please feel free to utilize any of the resources that we post in the comments. We also might have time to take a couple of questions through the comment sections. Please feel free to leave any questions that you have there. We’ll either respond to them in writing or we might be able to take a couple today while we discuss Agent Orange Presumptions.

Without further ado, Lindy, why don’t you start us off by telling us generally what is a presumption of exposure? When we talk about Agent Orange and herbicides, things that are going to be brought up today. We talk about the exposure element of an in-service problem or event.

Lindy: Mm-hmm. Right.

Maura: Can you tell us about what it means to be presumed exposed?

Lindy: Sure. VA actually created these presumptions to assist veterans in getting service connection. It’ll help make it a little bit easier. The presumption of exposure basically means that if you served at a certain place during a certain period of time, you are presumed exposed to certain harmful chemicals or environmental hazards and it takes the place of Element Two in service connection. As well as you know what service connection, you need the three elements; The first, the diagnosis; the second one would be that in-service event or injury and; the third is the nexus. If you’re presumed exposed to something like Agent Orange, that takes the place of element number two which would be that in-service event or injury.

Maura: The presumptions sounds like they are important because they alleviate the burden that the veteran has to prove certain things in order to gain benefits.

Lindy: Yes.

Maura: If you are seeking service connection as Lindy said, you need to be able to show that you have a current disability, that there was an in-service event and that there was a link between the in-service event and the current disability. But the presumption of exposure takes the place of the in-service event or injury prong of the test. It can be very helpful if VA can recognize or presume that you were exposed to herbicides.

Lindy: Yeah, definitely. I think we’re going to get into more detail a little bit later on in this presentation but we will be more specific about places you have served to certain periods of time and so on, but just generally speaking right now, if you have served at a certain place during a certain period of time, you can be presumed exposed to certain herbicides.

Maura: That was a really good overview, I think, of the service connection elements but just in case anyone has any additional questions about more of the fundamentals, and in case we don’t get to cover them in too much depth today. Definitely, feel free to access any resources that we have on our website at cck-law.com as well as in the comments feed here. We have done service connection topics before, we have done other exposure topics before. Feel free to check those out if for whatever reason what you are looking for is not covered today.

Back to the presumption language and weighing the foundation for what we’re discussing today. Lindy, the presumption of exposure is different from a presumption that someone is entitled to service connection. It’s different than the ultimate question in the case.

Lindy: Right.

Maura: Sometimes VA will reference a presumption of service connection. Can you tell us what that means?

Lindy: Yes, there’s a slight difference here and it basically just means that VA is presuming that your disability is caused from service. Typically, due to one of these exposure issues that we are going to get more into in a minute. This actually takes the place of element number three so that nexus opinion that you usually need in-service connection claims. If VA presumes that your disability was caused by service, then you actually don’t need that nexus element which can be really huge for your claim.

Maura: Great. Emma, can you tell us what are the conditions or some of the conditions that VA recognizes as being due to herbicide exposure and how they come to those conclusions?

Emma: Sure, some of the common ones that I’m sure many know about that people can get presumed service connection for if they had boots on the ground in the right place at the right time for herbicide exposure. Agent Orange exposure are Diabetes, Coronary Artery Disease, Ischemic Heart Disease, Parkinson’s Disease, Prostate Cancer, Respiratory Cancers and the list of the different conditions can be found in Federal Regulation 38 CFR 3.309.. We’ll give you the list of conditions for herbicide exposure.

That lists comes from congress mandated that VA look into this and research it and so research is conducted by the National Academy of Sciences, Institute of Medicine Branch looks at this and determines whether there is a relationship between the toxins and Agent Orange that are again, listed in the regulation and development of these various conditions. As what Lindy mentioned, if you’re in the right place and at the right time, you are presumed exposed and you have one of these conditions, you’re going to get the presumption of service connection.

Maura: Right.

Emma: But they each operate independently.

Maura: Mm-hmm.

Emma: You could be in the wrong place at the wrong time but if you can show exposure and you have one of these conditions, you’ll get service connection. Vice versa, you could be in the right place at the right time but have some other condition that’s not listed as one of the presumptive conditions.

Maura: Okay.

Emma: If you can get medical nexus information, you can get service connected. If you’ve got both, you’re gold and you’re gonna be clear, either way you don’t have to do much other than file your claim but there are some at least in legwork that you have to do if you’re missing either the presumption exposure or of presumed condition.

Maura: Okay, great. The list, it contains the conditions that VA will presume due to herbicide exposure but that doesn’t mean that if you have a condition that is not on the list that you believed as otherwise due to herbicide exposure as you mentioned before,–

Emma: Mm-hmm.

Maura: –you can’t file a claim. It’s just that as Emma said, you will still need to produce the nexus evidence. In other words you still need to show the relationship between what you currently have if it’s a condition not on the presumptive list.

Emma: Right.

Maura: And why you believe that was related to herbicide exposure and usually that needs to come in a form of a medical opinion.

Emma: Right, and VA is constantly looking at this as science gets updated, as more research is done, as more people are studied, that list can change.

Emma: It’s changed dramatically in the past. Diabetes, I think, was added in 2002 or 2003.

Maura: Mm-hmm.

Emma: Ischemic Heart Disease was added in 2010. I think, currently, VA is looking at adding, they haven’t yet, so don’t go running out there and saying, “CCK told me I can get service connection for this.” We’re looking at adding Bladder Cancer, Hyperthyroidism and Parkinson’s-like symptoms. You don’t have an actual diagnosis of Parkinson’s disease but you have something in that family.

Maura: Great and that last note is important because we do get questions about that a lot.

Maura: VA did go on the record and say that they were going to consider or going to look at adding conditions to the list which I think that they do periodically because the National Academy of Sciences will produce medical information. I think, about every two years.

Maura: They are commissioned to do a report and sometimes their report will reveal that there is more evidence suggesting a link between a certain condition that they’re studying, an herbicide exposure. However, the VA needs to act on that, add things to the list themselves so that the list is updated and expanded in the regulation 3.309 that Emma referenced earlier. They have mentioned adding those conditions that you were talking about, they have not done so yet. I think in maybe March of this year, they said it would be within 90 days and we haven’t seen anything yet. We will definitely be watching that.

Emma: Yes, fingers crossed.

Maura: Yeah, we continue to watch it and we would provide an update on if we have one but we are not here in a whole lot right now.

Emma: No, right.

Maura: That covers the conditions that VA will recognize as due to herbicides exposure. Now we want to talk about where you need to bend to establish that it should be presumed that you were exposed to herbicides.

Lindy: Yup.

Maura: Lindy, the big one is Vietnam.

Lindy: Yes.

Maura: Can you tell us about what a person needs to show if they’ve served in Vietnam or near Vietnam to be able to get that presumption?

Lindy: Sure, you may have heard the term ‘boots on the ground’. That’s what we say all the time. If you are a veteran who served boots on the ground in Vietnam, I’m going to read the dates so I don’t mess them up. January 9th, 1962 through May 7th, 1975 then you will be presumed exposed to herbicide agents. That is great for your claim especially if you have one of those disabilities that Emma just listed.

Lindy: If you have one of those disabilities, you have a diagnosed condition on that list and you were in Vietnam boots on the ground during that period of time, then in theory you should be all set and service connection should be granted. VA does sometimes make mistakes and may deny it incorrectly but typically, you should be granted service connection. If you were at boots on the ground in Vietnam during that period of time and you have one of those conditions listed in 3.307 E.

Emma: I think, yes, look at both 3.307 and 3.309.

Lindy: Right.

Emma: For the full picture of what you can get done.

Maura: Yup, typically that is the biggest thing people think of for presumed exposure cases.

Maura: Boots on the ground in Vietnam.

Maura: Okay.

Emma: Yup.

Maura: And then, recently there have been a developments to VA’s policies and the law about veterans who served in the water surrounding or in Vietnam. Emma, can you tell us about that?

Emma: Sure, before major federal circuit case came out and then congress acted on it, there was a distinction between brown water veterans and blue water veterans. Brown water veterans where those that were on vessels that traveled the inland water ways at Vietnam. It varies depending on what period of time you’re looking at, VA’s definition evolved over time.

Emma: For a time people who did dock Da Nang harbor that was brown water and then they changed their mind and said, “No, no”, that’s blue water. It prompted a whole host of litigation. Fast forward to this year, major decision comes out from the Federal Circuit Procopio that talked about how since congress decided to call Vietnam, The Republic of Vietnam that really meant the true international law definition of a country. Which includes up to 12 nautical miles from the line of demarcation. After that decision came out, congress acted then and acted simply water legislation.

Now we have this legislation that gives us precised coordinates generally fitting within that 12 nautical miles from the line of demarcation. Any veteran who served within 12 nautical miles or within those coordinates in legislation, can now be presumed exposed to herbicides which really opens it up to all these Navy veterans that have been talking for years about how, “Listen, Agent Orange and herbicides were sprayed on land mass but it ledged into the water.”

Maura: Right.

Emma: “The water is being circulated through our ship or bathing in it. We’re drinking it, we were exposed too.”

Emma: This extends the presumption to all those folks now which is great and really it opens it up. One thing to know is that the secretary has issued a stay. The secretary of VA has issued a stay on all these claims. Meaning he put the paused button on them. You can still file for service connection. If you have filed for service connection, you are a blue veteran, your claim is in a cue, it’s in line. They are just not making any decisions on them yet until they figure out how they are going to decide what boats were where, at what time, so that stay is in place until January 2020.

Emma: I think it’s still important to get your claim in as soon as possible.

Maura: Yeah.

Emma: Because your effective date will be governed by that but just note that there probably be a little bit of a wait before you hear something back.

Maura: Sounds good. Yeah, this is very important stuff ’cause it’s very new and as Emma said, they have stayed this cases so sometimes, that might make someone think that they should be deterred from filing a claim but that’s not really the case. Once they lift the stay and start working on this cases, it will be important to have your claims in.

Emma: Mm-hmm.

Maura: Definitely take a look, see if you fall within the 12 nautical miles. Hopefully, VA will come up with some information that might be helpful for our people to figure out if they were. We have some resources on this, I believe, on the website as well which is again, at cck-law.com.

Lindy: Yeah, there was another Facebook live on Procopio specifically that was really helpful. I think, Zach and Brad talked about how about 80,000 veterans are going to be affected by this Procopio decision.

Maura: Mm-hmm.

Lindy: When we say it’s huge, it really is and going to be a big deal in VA law. Definitely get your claim in. If you already have one in, like Emma said, just be patient a little bit longer.

Maura: Outside of Vietnam there are also presumptions in place for veterans who served on or near the Korean DMZ which is the Demilitarized Zone. Lindy, can you tell us about how that presumption works if the veteran served there?

Lindy: Yup, just like Maura said, if you served on or near the Korean DMZ, then you will or you can be presumed exposed to Agent Orange. Again, I’ll read the dates so I don’t get it wrong. April 1st, 1968 through August 31st, 1971. The only trick here is that VA has recognized and the Department of Defense has recognized certain units that they will presume exposed. This is a relatively long list and we have it on our website and it’s also on VA’s website. I suggest you go check it out.

If you served during that period of time in Korea on or near the DMZ, then you should definitely go and look to see if your unit is one of the recognized units. VA will often give you push back if you were not in one of those units so it might take a little bit of leg work as we talked about previously but definitely still possible to get service connected VA Agent Orange exposure.

Maura: Great, and DMZ cases can be tricky because instead of the standard, if you were in Vietnam, you are presumed exposed, standard really that they use for Vietnam veterans at the DMZ. They say if you served on or near the DMZ. The question becomes and the question that VA hasn’t really answered is, what is near the DMZ?

Emma: Right.

Maura: Is it within 500 feet? Is it within 5 miles? We don’t know.

Emma: It’s south in civilian control line. It gets really interesting and tricky so certainly talk with your representative, VSO, DAV an attorney, your friends from service about what they are hearing and what they are seeing because it can get tricky and confusing but certainly winnable.

Lindy: Right.

Maura: Another thing that can be helpful if you are a veteran that served at the DMZ is talking about proximity to the DMZ.

Emma: Mm-hmm.

Maura: In lay statements so it won’t just be enough to say that you served in Korea in the time-frame or even sometimes showing that you were in the particular unit. Obviously, there’s the list of recognized units but records aren’t full-proof and we know that records can get lost over the years. We’re talking about dates of service from decades ago so the records might not be totally complete and if you can provide VA with more information about where you were if you remember, that might help them figure out whether your proximity was near enough to the DMZ. Things like that can be helpful to try to piece together what you need and on along similar lines, there’s also the issue that comes up with people that served in Thailand.

Emma: Right.

Maura: Herbicides were used in Thailand and VA recognizes this but there’s currently no presumption the way that there is for Vietnam veterans, for Thailand veterans. Does someone want to talk about what VA is doing with these cases? How they assess the facts here.

Emma: Sure. I’ll start, Lindy and then you back me up.

Lindy: Okay, I’ll jump in.

Emma: Like Maura mentioned, there’s no presumption but there is a policy and it’s a pretty good policy to start. For veterans that were stationed on certain royal tight air-force bases, anytime between the same period of time for Vietnam veterans, January 1962 to May 1975, if you’re a military occupational specialty or your job duties or what it have you put you on the perimeter of that base or brought you in contact with the perimeter, VA should concede exposure to herbicides.

What does that mean, the perimeter? They were spraying these bases operationally with herbicides. VA has conceded the same herbicides that were used in Vietnam for tactical reasons to prevent ambushes attacks and things like that. You are going to be able to see what’s going on to guard the base. There are certain MOSs that VA will basically, as a policy matter, agree you were on the perimeter. Veterans in the air-force that had military police, dog-handled duties, perimeter security or other credible evidence that you were on any other perimeter will get that exposure conceded. The basis that VA is looking at right now are U-Tapao, Ubon, Nakhon Phanom.

Maura: Yes.

Emma: Udorn, Takhli, Korat and Don Mueang.

Maura: Very good, Emma.

Emma: Thanks, good try.

Maura: Oh, it’s good to try.

Emma: Yes. I just got to give it a try.

Generally, those are the major air-force bases. Army veterans, not just air-force folks but army veterans who were over there who provided perimeter security also get this presumption. Again, really, it’s a matter of putting yourself in the right place at the right time. Were you at one of these bases and did you go across the perimeter? Did you serve along the perimeter? Were you on flight line? Was the machine a shock next to the flight line which is next to the perimeter? Were you’re barracks next to the perimeter? Were you in supply? Did you have to drive across the perimeter each day into town to get supplies and drop them off other bases and come back?

It’s a little bit broader than maybe VA wants to concede first go around and but again, similar to the Korean DMZ stuff, you need to provide some extra evidence beyond just your service records to get this policy presumption.

Lindy: Mm-hmm, definitely. We do statements all the time with our clients who served at these Thailand Air-force bases like Emma said, just proving that maybe they crossed the perimeter everyday or once a week or whatever their job was. Usually, they have good evidences to being near the perimeter so we do statements all the time to substantiate that.

Maura: We try to make sure that we keep it as broad as possible. I think that’s probably the best approach because even though the policy talks about your occupational duties in-service, the policy is still other credible evidence that you served on or any other perimeter. I think, something along those lines and so anything that is relevant to exposure to the perimeter, even extra curricular activities, some places, some people smoked cigarettes along the perimeter or played cards with their friends along the perimeter or went in and out the base several times, like Lindy said, regularly.

Lindy: Mm-hmm, right.

Maura: Multiple times a week, a month, anything like that we try to bring in. Sometimes the barracks were even placed along the perimeter.

Lindy: Right.

Maura: That’s not going to be something that VA can tell based on your occupational specialty whether you were there but information that you can provide that you can remember is very, very important in those cases because again, just like what the DMZ rule, it’s sort of this VA near the perimeter.

Emma: Mm-hmm.

Maura: Near the DMZ and that’s undefined and that can be difficult for VA to get right frankly.

Emma: Yeah, they’re consistent.

Maura: Yes, and I was gonna say, if you have any buddy statements as well, maybe there is a friend that you served with who can attest you being on or near the perimeter, those are helpful. Also, pictures, we submit pictures all the time. If you have anything to show where you were, that’s helpful. Maps, even of the air-force bases.

Lindy: Mm-hmm.

Maura: We send them those sometimes. Any type of evidence like that to prove where you were is great. There’s also I believe a presumption and Emma, you can tell me if I’m wrong about this.

Maura: For veterans who worked with C-123 aircraft.

Emma: Right.

Maura: Can you tell us about that?

Emma: Sure, the C-123 aircraft actually sprayed the herbicide, sprayed Agent Orange in Vietnam. They were sent back to the U.S., it was by the air force and air-force reserves. Veterans might be exposed to herbicides who never even set foot in Vietnam, Thailand, DMZ or state side the whole time during the conflict.

Maura: Mm-hmm.

Emma: If you were a member of a certain air-force unit, where contaminated C-123 is where you’re assigned to and you had regular contact with the aircraft between 1969 to 1986, [these years are different than the Vietnam boots on the ground presumption exposure] and you developed Agent Orange disabilities, you can get presumption of exposure and service connection. Reservists at certain bases also between the same years can get the presumption but again, you’re going to look at the regulation 3.307 E.

Lindy: The disabilities are in E.

Lindy: Yes. I think above the C-123 regulation is 3.307 A.

Emma: Thank you.

Lindy: Yes.

Emma: To get the exact precise units and information about who gets the presumption. It’s a little bit more nuanced.

Maura: Right.

Emma: I would say that at least from what we have seen, this generally get granted.

Emma: If you have the right unit and you have the right disabilities, we don’t see a lot of push back from VA on granting this condition.

Maura: That’s still good to know because this is lesser known presumption, I think, when we talk about herbicide exposure.

Emma: Mm-hmm, absolutely.

Maura: Finally, there is a list of other locations that we haven’t talked about today, where herbicides were used, tested, stored et cetera. The locations are very variable and so are the dates of the storage in use.

Emma: Right.

Lindy: Yup.

Maura: I think a lot of them do line up with the Vietnam Air but not exactly at all. Based on the years that we’ve talked about today. We will make sure to make that list available through our website even through the comments or through the website. As we have said before, it’s cck-law.com. It’s also available on VA’s website. Did anyone want to add anything? Because I don’t think we see a ton of those cases, but it is important to know that there are some bases and locations where herbicide arguments would be important.

Emma: Right.

Lindy: Yeah.

Emma: VA maintains a list of locations both within the states, the United States and outside United States for herbicides for either tested or stored. There were folks that were involved in the testing of Agent Orange and herbicides before they actually wanted to use full scale and then also the disposal of any left-over product after the conflict was over. Certainly, take a look at that list. You might have a very clear memory of working with it and you may in fact be entitled to a presumption.

Lindy: Did you see what items are on the list?

Emma: I did see. There is a location in islands.

Lindy: I didn’t know that.

Emma: I do.

Lindy: Kingston, I don’t have any idea.

Lindy: Am I going to have to look at that again?

Emma: Yes, Kingston.

Maura: Once again, everyone, we’re here today talking about Agent Orange presumptions at Chisholm Chisholm and Kilpatrick. We’re going to wrap up with some final questions but as we have said before, please feel free to utilize the resources that we’ve been posting throughout this discussion through the comments feed.

We talked about the presumptions of exposure which replaces the in-service event element for service connection. It’s an important presumption if you’re trying to establish that you have a condition that’s due to herbicide exposure. We also talked about the presumption of service connection in VA’s list of conditions that they will presume as being due to herbicide exposure. We talked about the locations and dates where herbicides were used in what time-frame. We got into a little bit of what kind of evidence you might need to substantiate your claim that you were exposed to herbicides if it’s necessary.

Do you both want to offer in your experience, some common mistakes that you’ve seen that VA make with the respect to herbicide exposure and specifically the presumptions?

Emma: Sure, I think one of the big ones that you see is VA, especially for Thailand veterans, talking about based on how based on old information that the herbicides used were just commercial and not tactical and for all intents and purposes, there really is no distinction between the herbicides that were sprayed in Vietnam and the herbicides that were sprayed around perimeters in Thailand. Again, that’s old information and VA is a big institution and it can be slow-moving. It is important to push back on that and appeal that because the most current information and even our general counsel for VA itself has conceded that the same type of herbicide was used in Thailand. That’s an old information and that’s a common mistake, I think, we see the VA, either the regional office or the board are unfortunately making.

Emma: But there are avenues to appeal that and correct that mistake.

Emma: That’s one thing I would certainly beyond to look out for.

Maura: Definitely, because the way in which you use the substance doesn’t change the substance itself. That’s always my favorite thing that they say.

Emma: Right. Yeah.

Maura: It’s, “Well, it was used for this purpose.”

Emma: Right.

Maura: “It wasn’t used for this other purpose.”

Emma: Right.

Maura: But we are still talking about the same materials.

Emma: It’s the same chemicals. It tactically or otherwise.

Emma: I don’t care if it was used for garden maintenance, it’s still the same dioxin.

Maura: It’s still harmful.

Emma: Same thing with your MOS, you’re gone guard duty or you’re playing cards. The toxicity doesn’t change because of your occupational or recreational activities, all things to keep in mind.

Maura: Those are good ones.

Lindy: I’m was going to say actually the same thing about Thailand cases. I think, I probably see the most push back with those. Especially, with what Emma said and also again with the military occupation. We have clients who were in accounting or maybe works in reception or did something that isn’t typically thought that must be on or near the perimeter. In VA, it is not like that.

Again, lay statements are really important, buddy statements are important. Anything, maybe you went to town daily or weekly, to have to you have to cross the perimeter. Whatever it is showing that you were on or near the perimeter is important. Definitely push back on that too.

Maura: Mm-hmm, great. And along those same lines, your lay statements are important and sometimes VA doesn’t always appreciate that.

Maura: We have had plenty of instances and cases where the records, like the unit records or the personnel assignments from the military don’t specifically provide enough documentation or enough evidence of herbicide exposure and VA will kind of hang their hat on that and say, “Well, there’s nothing in here about herbicide exposure. There’s nothing in here about your exposure. herbicides or use of herbicides are being near them. So, we can’t concede exposure,” but plenty of people have described instances credibly.

Maura: In which they were near locations that VA knows too have been sprayed. Some people don’t have records that they were in Vietnam, this a more rare case but we have seen a few instances where VA refuses to accept the statement that a veteran was even in a particular location.

As Lindy and Emma, I think you have both covered really well. Get your evidence in. If VA is relying on the absence of evidence or the lack of enough records, try to supply a record for them.

Maura: Because they’re supposed to be considering the evidence that you submit.

Emma: Absolutely.

Maura: Any final thoughts for people to keep in mind?

Emma: Nope, just keep an eye out for any changes in the presumptions and if they do change, be sure to get your claim in as soon as possible after that change.

Maura: Great.

Lindy: Great. Yeah, and I would just say because Procopio came out, it’s okay that it stayed. It doesn’t mean anything bad for your claim. It just means getting in there. If you are one of those veterans with one of these conditions and you served within 12 nautical miles from the line of demarcation at Vietnam, definitely file your claim. Do not hesitate to do so.

Maura: Excellent, any questions? Perfect. Thank you all for joining us today. We will see you next time.

[END].

*Please note: this transcript has been added to reflect legally accurate language of H.R.299 – Blue Water Navy Vietnam Veterans Act of 2019.