New Agent Orange Conditions 2021
Robert Chisholm: Good afternoon and welcome to cck-law.com. My name is Robert Chisholm and I am here with Courtney Ross and we are here to give you an update on the NDAA 2021, the National Defense Authorization Act, as it relates to some new presumptive conditions for herbicide exposure. So, a measure was included in the final version of the National Defense Authorization Act to grant Department of Veterans Affairs benefits that tens of thousands of Vietnam War veterans suffering from the effects of Agent Orange. Every year, Congress passes the National Defense Authorization Act that says policy and spending bill for the Defense Department that goes to Congress every year, and recently the one for 2021 was finalized after a veto by the president. The veto was overridden by Congress, so that law has now been enacted. What does this change mean for veterans?
Robert: Courtney, I am going to turn it over to you to talk about what conditions were added. And, what is unique about this I think is that Congress years ago when it passed the original Agent Orange act, authorized the secretary to add conditions over time by regulation. But here, Congress stepped in and said, “We are adding these three conditions because the Secretary of Veterans Affairs had not done it.” So, I will hand it over to you.
Courtney Ross: Thanks, Robert. So, as Robert said, new conditions have been added to VA’s list of conditions that they consider presumptively due to exposure to Agent Orange for being veterans. These three conditions include bladder cancer, hypothyroidism, and Parkinson’s-like symptoms. So, symptoms like tremors, slow movement, impaired speech, muscle stiffness, symptoms that are similar to Parkinson’s without actually having the Parkinson’s diagnosis are included on the presumptive list now as well. And what is so important about this is that for any, generally speaking for service connection, veterans have to prove three elements. They have to show a current diagnosis of a condition, and in-service event, or in currents, or symptoms. And then a third element, a medical nexus, linking that current diagnosis to their service.
Courtney: For conditions that are on VA’s presumptive list, veterans do not have to show that third element. They you no longer need that medical nexus, for now, bladder cancer, hypothyroidism, and Parkinson’s-like symptoms. So, it makes establishing service connection and getting entitlement to those benefits essentially easier for veterans because there is one less element to prove. They now only have to show a diagnosis of bladder cancer and then their service in Vietnam, which makes them eligible for presumptive exposure to Agent Orange as well.
Robert: Yes, I think that is a really good point Courtney. Because in the past, when we have represented veterans who were exposed there resides in Vietnam, for example, who had bladder cancer we would have to go out and obtain a medical report from a private physician most times linking the condition and we were able to win some of those claims. Now, that is no longer necessary which makes it a lot easier for veterans. Is there any kind of estimate as to how many veterans will receive this benefit? Or will this easing of the standard approve if you will, by this presumption?
Courtney: Yes, one Senator’s office estimated around thirty-four thousand Vietnam veterans are going to fall within this category where they have had these three diagnoses, and now are going to be eligible for presumptive service connection. And so obviously, that is a really significant number of veterans and that is just Vietnam veterans too so, you know, keeping in mind this might benefit other veterans who served in other areas of war as well if there was exposure to Agent Orange.
Robert: Okay, are these three conditions or diseases part of the Nehmer class?
Courtney: Yes, and the Nehmer class is veterans who served in Vietnam and suffer from what VA has identified as a presumptive condition. And so now that these three conditions have been added to that list, veterans who suffer from one of the three of these will be considered part of the Nehmer class.
Robert: Okay, so what that means is if someone had previously filed for one of these conditions and then denied, they might be able to get an effective date back to the original claim then?
Robert: Good. The other thing I think is important to point out and you just hinted at this is that herbicides were used in other locations just like Vietnam. We know for example that they were used in Korea. We know that they were used in Thailand. So, these conditions would also apply to people exposed to herbicides in those locations as well.
Courtney: Yes, I think that is a really important point and usually in some of those other places there is the added step of having to maybe prove or establish exposure. But you still do not have that third element of needing the medical nexus and so it benefits those veterans as well.
Robert: So, it was kind of a long and winding road, add these three conditions, unfortunately. The evidence was there I think in 2016 based upon some reports that the Secretary of Veterans Affairs we usually have relied on to add these conditions like this. Once it reaches what they call the limited or suggestive evidence linking Agent Orange to, for example, bladder cancer or to Parkinson’s-like symptoms. There was more evidence in 2018 study, or what happened here was Secretary Wilkie refused to propose a new regulation adding these three conditions. So, Congress took it upon themselves to mandate it by Statute, which is a good thing for veterans especially veterans suffering from these three conditions.
Robert: So, at this point the NDAA 2021 has become law. What advice do we have for people that might be suffering from these conditions that were exposed to herbicides in Vietnam or elsewhere?
Courtney: The first thing I would say is to file a claim if you are suffering and have been diagnosed with one of these conditions. Get the claim in the door immediately as we talked about before. If you are a Nehmer class veteran there is potential for earlier effective dates, but the earlier you get the claim in, the earlier you can get a grant of service connection then deal with the effective date issues. And put it on these radar that you currently might fall in this class, Nehmer class veterans.
Robert: I think it is also important to point out that this would apply to the Blue Water Navy Veterans as well. Those who were exposed to Agent Orange in the waters offshore in Vietnam. So, they are part of the people that would benefit from this potentially as well.
Courtney: Yes, absolutely. That is a really good point.
Robert: I think that is all we have for now anything, like last thoughts Courtney?
Courtney: No, I think I just want to say this is like Robert said, “It has been a long winding road to get these three conditions added.” And so, I think it is exciting to finally see them on the list and just want to make sure veterans are out there who are suffering from them are aware and to get their claims filed.
Robert: I agree. I think if you have these conditions where in you were exposed to herbicides, definitely file a claim. And if you have already filed a claim, hope that it will be granted soon and get back to the original effective date when you filed your claim. Courtney, thank you for joining us this afternoon. This is Robert Chisholm and Courtney Ross signing off for cck-law.com. Please follow us on Facebook, Twitter, and Instagram. Thank you.
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