The PACT ACT Explained: Toxic Exposure Veterans’ Benefits

CCK Law: Our Vital Role in Veterans Law

Video Transcription

Nicholas Briggs: Welcome to CCK Live. My name is Nicholas Briggs and I’m joined today by Emma Peterson and Maura Black. In this video, we will be breaking down the toxic exposure bill known as the PACT Act.

The long form name of the bill is the Honoring our Promise to Address Comprehensive Toxics Act, or PACT Act. And this is a piece of legislation that, if passed, will then provide improved benefits and health care to veterans suffering from toxic exposure, including Agent Orange in Thailand and burn pits in the Middle East, as well as expand exposure-related research, resources, and training.

One thing to note at the outset is that this bill has not yet passed Congress fully. It’s been passed by the Senate and it’s currently with the House of Representatives for some procedural issues. But once signed, the bill could expand health care benefits and eligibility to more post-911 combat veterans. And this group is estimated to include more than 5 million toxic-exposed veterans. The bill would also create a framework for the establishment of future presumptions of service connection related to toxic exposure.

It would add 23 burn pit and toxic exposure-related conditions to the VA’s list of current presumptions. It would also expand presumptions related to Agent Orange exposure to include Thailand, Cambodia, Laos, Guam, American Samoa, and Johnston Atoll. In addition to those presumptions, it would also expand presumptions for radiation-exposed veterans at certain locations in certain years. And then, it would finally strengthen federal research on toxic exposure, improve VA’s resources and training for toxic exposed veterans, and then invest in VA’s claims processing, VA’s workforce, and VA’s healthcare facilities to make sure that VA itself has the resources to provide additional benefits and additional health care to the veterans covered by this act.

So obviously, that’s a lot. And that’s why we’re here today to sort of work our way through the different areas of the bill and go through them one by one. So first Maura, could you tell us a bit more about the expansive health care that’s going to be available if the bill should become law?

Maura Black: Yes, thanks, Nick. And, Nick, as you mentioned, the PACT Act, the part of the bill defines toxic exposed veterans as those who participated in a toxic exposure risk activity while serving on active duty. The idea is to take this information about exposure and apply that to increased health care benefits for veterans who were exposed. Veterans who are found to be toxic exposed veterans, under that definition that I just provided that is in the bill, will become eligible for expanded hospital care, including mental health services and counseling, expanded medical services, and nursing home care for any illnesses that they have.

The legislation also states that VA must conduct a study on access to VBA and VHA benefits, so Veterans Benefits Administration (VBA) and Veterans Health Administration (VHA) benefits in territories and freely associated states of the United States, those include the Federated States of Micronesia, the Republic of the Marshall Islands, the Republic of Palau, American Samoa, the Commonwealth of the Northern Marianas Islands, Guam, Puerto Rico, and the Virgin Islands. And the idea is that the VA study that they must conduct pursuant to the Act needs to assess the deficits and the availability and accessibility of the benefits that are offered to veterans in the primary states as compared to elsewhere in the United States. So, that study is going to specifically look at those territories and freely associated states of the United States.

The bill is also going to add 23 conditions to the presumptive list for toxic exposure. So, this is really important because it’s going to recognize the connection between toxic exposure and the later development of certain disabilities. We often refer to this kind of presumption as a presumption of a nexus or replacing the nexus element for veterans who are seeking service connection. Maybe they have a diagnosis and they have details of in-service exposure, but they’re missing that medical link. The expansion of the list of presumptive conditions is going to be really helpful to veterans pursuing benefits for the disabilities that were added to the list.

The conditions that were added to the presumptive list through the PACT Act include respiratory problems such as COPD, chronic obstructive pulmonary disease, lung disease, and bronchitis, and a range of cancers — brain cancers, kidney cancers, and reproductive cancers. A full list of the new presumptive conditions can be found on our blog, CCK-law.com. I’m sure many of us will mention this throughout the discussion today, but there is a lot of granular detail to the bill that you can find more in-depth information about on the blog.

And veterans eligible for benefits based on these new presumptions, the bill refers to them as covered veterans, would include 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 the airspace above the following countries: Bahrain, Iraq, Kuwait, Oman, Qatar, Saudi Arabia, Somalia, and the United Arab Emirates.

In addition, covered veterans include veterans who honor after 9-11-2001, and performed active service, including in the airspace above the following locations: Afghanistan, Djibouti, Egypt, Jordan, Lebanon, and Syria. So, the specific locations where VA is recognizing, finally, that these toxic exposures occurred, coupled with the added conditions to the presumptive list of things that we know now, and have known really, but now they’re being officially recognized as disabilities that can arise from toxic exposure, all that information is in the bill, also accessible on our blog where we discussed the bill. And it’s really, really important for veterans who served in these locations and have developed those types of disabilities.

Nicholas: Perfect, thanks for all that information, Maura. And like you mentioned, there’s a lot of granular data and information in these bills that we’re going to cover, and our blog will cover.

But another important point to mention here is going to be how the effective dates for these conditions are going to work. By and large, the effective dates are only going to be from the date of the enactment of the bill. When it comes to dependency and indemnity compensation, your cause of death cases, or if the veteran is terminally ill, homeless, under extreme financial hardship, 85 years or older, or can otherwise show sufficient cause for why they should be entitled to service connection from the date of the enactment of the bill.

The presumption is also effective upon the date of enactment for certain conditions. But otherwise, what they’re going to do in order to allow VA to have processing time for some of these claims, is to sort of stagger the effective dates for the grants based off of the specific condition. So, the bill goes through and outlines this in more detail and our blog will as well. But for example, October 1, 2023, is going to be the effective date for chronic bronchitis and COPD. October 1, 2024, will be the effective date for head cancer, neck cancer, gastrointestinal cancer, reproductive cancers, lymphoma, lymphatic cancer, and pancreatic cancer. And then finally, the last category has October 1, 2025, for claims of kidney cancer, and melanoma.

And again, these effective dates are staggered and built into the bill to allow for processing time and sort of allow VA to catch up. But if you meet any of the criteria shown above, you’re terminally ill, homeless, etc., and you can demonstrate that using medical or lay evidence, then you can potentially be entitled to an earlier effective date, as early as the date of passage of the bill.

It’s just something to keep in mind. And even if you have pending claims for conditions, this is still going to impact what the effective date ultimately could be or will be, so it’s something to keep in mind. And it might encourage you to file claims now so that you can sort of get the ball rolling. So with that out of the way, we’ve kind of covered burn pits and that area of the bill. But it’s one of many like we’ve said, so Emma, could you tell us a bit more about what the bill does to expand presumption for herbicide exposure?

Emma Peterson: Absolutely. So, this is another really exciting portion of the bill for all of our Thailand and other herbicide-exposed veterans out there, the bill is going to include language that expands the presumption of herbicide exposure, so Agent Orange, Agent White, Agent Blue, and it’s going to include updated conditions and locations.

Specifically, the legislation is going to expand that presumption of herbicide exposure to service members who served in Thailand. So, at any U.S. or Thai base from January 9, 1962, to June 30, 1967, without regard to your military occupational specialty, so you’re no longer going to have to show that you were a security member, you were on dog handling duty, you’re not going to have to prove that you came close to the perimeter, that your living quarters were next to the perimeter, you worked the flight line. Anywhere on the base, and I think that’s huge for so many Thailand veterans out there who’ve been fighting for so long to demonstrate that they were exposed to herbicides as well.

In addition to Thailand, it’s going to include a couple of other locations where we knew herbicides were but never thought that VA would concede. Laos from December 1, 1965, to September 30, 1969. Cambodia in certain locations from April 16, 1969, to April 30, 1969. Guam and American Samoa or the territorial waters around there from January 9, 1962, to July 30, 1980. It’s also going to include the Johnston Atoll and the ships that were around there from January 1, 1972 to September 30, 1977.

And obviously, the presumption for boots on the ground in Vietnam will stay the same. But that’s very exciting. Now all you have to show is that you have a condition that’s related to herbicide exposure, whether it’s presumptively or otherwise, you’re not going to have to prove that exposure piece of the puzzle.

Similar to the legislation that dealt with toxic exposed veterans, so Persian Gulf War I, II, and burn pit veterans, if a claim is for dependency and indemnity compensation, you’re trying to get service connection for the cause of death for your spouse, or dependent child or dependent, your parent, or the veteran is terminally ill, homeless, or under extreme financial hardship. If you’re 85 or older, or you can show other sufficient cause, this presumption can become effective immediately for you from the passage of the bill. However, the retroactivity is only going to apply for DIC claimants. For dependency and indemnity compensation claimants, they could potentially get the effective date all the way back to the date of their claim.

Otherwise, this is going to become effective for everyone else on October 1, 2022. I think an important point to keep in mind and Nick and Maura just touched on this, if you have a claim pending, don’t stop it, there’s no reason to. You can still win your case without these presumptions. Just because it’s going to be presumptive as of X date doesn’t mean that you can’t also get medical evidence or other nexus evidence to win your case for the period of time you’ve had on appeal from the get-go. So, I wouldn’t give up. I wouldn’t pause anything. I keep going because there are, we’ve got years that could potentially be at stake.

Additionally, another really interesting part of this that I think we see time and time, again, is that this is going to add a couple of conditions to be presumptive due to exposure to herbicides. First and foremost, hypertension. We’ve known it for a while, we certainly have fought hard for a number of veterans to get service question for hypertension. And finally, that is going to be presumptively service connected, so huge for all of our Agent Orange veterans out there.

And it’s also going to add, and bear with me while I try to say this one, it’s a mouthful, MGUS, which is Monoclonal Gammopathy of Undetermined Significance. And that’s a big one, too.

A lot of conditions there, a lot to unpack in this PACT Act. But we will keep on tracking it for you. But make sure you check out our blog because it goes through each location, the timeframe for exposure, and we’ll explain some more about effective dates.

Nicholas: Perfect. Thanks for that, Emma. So up to this point, we’ve mostly talked about the specific presumptions that the bill creates in terms of adding conditions and adding presumptive exposure areas. But one other thing that it does and this is meant to clarify or improve the process by which the Secretary himself or herself goes through the process of adding conditions to the presumptive list, be it for Camp Lejeune exposure, herbicide exposure, so on and so forth.

So, with that in mind, Maura, could you tell us a bit more about this new framework that they’re creating to add and remove conditions?

Maura: Yes. So importantly, the bill establishes a specific process by which VA can add and remove presumptive conditions from its presumptive list. And I think the points that Emma just made highlight how important these presumptions are to VA, and also highlight why you should, not as Emma said we can’t repeat it enough, give up on a claim that’s pending. We’re talking a lot about the presumptive list and the effective dates that those presumptions take effect. But they’re not a bar to getting benefits from an earlier date, as Emma mentioned.

So, while these presumptions are really important, and they’re going to make pursuing benefits a lot easier for veterans, there’s nothing to say that you can’t establish your entitlement to benefits before the date that the presumptions take effect. So, I totally agreed with Emma’s point and I think it’s an important one. We see veterans a lot feeling cheated in the earlier years or the years that the presumption wasn’t in place, there is still a pathway to get benefits for that period. It’s not as simple. It’s a little more complex, but it’s a possibility. VA should not make you feel as though you’re not entitled to benefits before the date of a presumption.

Anyways, back to NIck’s question. Sorry for the deviation. The Secretary of VA under this new framework for adding and removing presumptions still retains the power to establish or remove presumptions of service connection that are based on toxic exposure, but they need to adhere to the following guidelines in doing so.

They need to make sure that the public is given an opportunity to comment on the proposed changes to the presumptive list whether it’s a plus or a minus of a condition. They need to hear advice from a group of VHA and VBA personnel. They need to take action within 160 days of receiving a recommendation to establish a presumption, which is really important, kind of reminds me of the hypertension stuff. There has been information and science out there for a very long time about hypertension, it’s nice to see that this framework includes a timeframe within which VA needs to act on a recommendation.

And VA may not consider a lack of evidence as a sufficient reason to remove a presumption from the list if it’s already there. The Act also will strengthen federal research on toxic exposure. The framework that I just outlined, and then the initiatives for more research kind of go hand in hand because I think both parts of the bill are meant to be safeguards for really veterans and the public to make sure that the VA is held accountable for the information that it has, and making sure that that information translates to increased benefits for veterans where appropriate.

So, pursuant to the act, VA will partner with the National Academy 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 or TBI, post-traumatic stress disorder (PTSD), depression, episodes of psychosis, schizophrenia, bipolar disorder, and suicide attempts, among others.

VA must also establish and maintain a public website for toxic exposure research. In other words, health consequences of toxic exposures during military service, and other related information that they need to make available publicly. VA needs to publish a list of resources and establish an outreach program to provide additional information about the risks of exposure.

Additionally, VA needs to expand its research on the health effects of jet fuels and exposure at Fort McClellan. This was all contemplated by the bill, which as we said before, it’s doing a lot. We’d really like to see these initiatives and the ongoing research that’s required. This is really important. We see this often in the defense spending and the other yearly things that we see from Congress, but it’s really nice to see that VA is going to be held accountable, or at least there’s a forum by which to do that when they obtain information about the risks of military toxic exposures.

Nicholas: Thanks, Maura. So up to this point, again, we’ve sort of worked our way through how compensation will be affected, how DIC benefits will be affected, and how healthcare, in particular, will be expanded to these toxic exposed veterans. And we’ve talked about herbicide expansions. And we’ve talked about burn pit exposure.

But there are other exposures still in the bill that are impacted and new benefits that might potentially be available to certain veterans. We’ve already published at least one video on the subject of Camp Lejeune veterans in particular, where the PACT Act contains provisions that could be potentially beneficial to them, as well as other individuals who happen to live and work at Camp Lejeune for more than 30 days between August 1953 and December 1987.

So, this particular expansion of potential available benefits involves financial compensation directly from the government for any harm caused by the exposure to contaminated water while living at Camp Lejeune for more than 30 days. These Federal Tort Claims would be under the exclusive jurisdiction of the Eastern District of North Carolina. But these benefits are different from the compensation benefits that we’ve talked about up to this point. So, rather than be provided, in addition to compensation benefits, they would actually directly offset compensation benefits service connection as we understand it. There’s no harm in pursuing both. But it’s important to note upfront that if you were awarded benefits under this PACT Act for the Federal Tort Claim, it would offset against any compensation you already receive.

In addition to creating this federal cause of action, the bill outlines that the statute of limitations is going to be 2 years from the final passage of the Act, or 180 days after the individual’s claim is denied. And we’re a leader in these new Camp Lejeune federal action cases, so feel free to check out our blog for additional information to see if we were able to help in your specific case when it comes to Camp Lejeune.

And last but not least, there are also some more Persian Gulf veteran benefits potentially expanding as a result of this bill, specifically, it amends 38USC1117, to remove the requirement that a qualifying chronic disability becomes manifest during a specific period after the Persian Gulf War.

There’s no presumptive Persian Gulf period anymore, there’s no pushing the deadline about a year each year, year after year. It only requires now that a disability related to Persian Gulf exposure becomes manifest to any degree at any time. So, there’s no eligible period of service. There’s none of that stuff anymore. And it’s also expanded to include Afghanistan, Israel, Egypt, Turkey, Syria, and Georgia.

A lot of those specific countries were previously excluded from the general exposures for Persian Gulf service and the particulate matter exposure in those countries. Now, those countries are available for these presumptions.

This bill really is a sort of one-stop shop for expanding the benefits to these different veterans based off of these different exposures. And last but not least, Emma, can you tell me a bit more about the improved VA resources and training that comes with this Act, because, obviously, this is a big change for VA, and they’re going to need some additional resources to help prepare themselves for it.

Emma: Absolutely. But just quickly circling back to Camp Lejeune a bit Nick, we’re going to have a link right below this video that you can click, don’t even have to go on our blog, it’ll take you right to the page you need. So, we have a lot of information on our blog about this particular Act. And I want to make sure that those that are watching that are interested in that Camp Lejeune cause of action can just shortcut right to where they need to go, so click the link below.

Okay, but about improving VA resources and training. So, certain parts of the Act focus on improving VA resources in training and explaining how funding may be used to pursue these different paths.

A few examples come a little bit dry, in terms of subject matter, it includes electronic VA communication, so veterans and their representatives, so they’re accredited agents, their VSOs, and their attorneys will now have the option to receive VA communication electronically. So, veterans can opt in and out of this service at any time. But that’s going to be huge because there have been mail delays across the country. Getting electronic mail is just sort of how people function these days. If you want that option, it’s going to be available to you.

There’s also going to be some updated automated claims processing. So, VA has to use the Cost of War Toxic Exposures Fund to continue to develop the automated claims processing system they already have and enhance the capacity, which will allow people to more easily file and have their claims reviewed. VA also has to do a correction of exposure records. So, they must, must help veterans update their records to reflect exposures to occupational or environmental hazards if necessary.

And then finally, there’s an improvement in the VA workforce. The last portion of the Act offers instructions on how the VA can improve its workforce, including a National Rural Recruitment plan and other modifications kind of in line with what Maura was mentioning at the beginning of the video.

In terms of where we go from here, this legislation hasn’t passed yet. It’s passed the House about a year ago went up to the Senate, some tweaks were made, and they passed it like last week, right, Nick? More or less, we think. It’s back now down before the House, we’re hoping they’re going to vote on it. I mean, the vote could be today. I don’t know what’s getting, we’re winding down here on the East Coast. We were hoping for this week but hopefully soon. Next several weeks, we anticipate it passing. And if signed into law, the PACT Act is going to provide much-needed benefits and support to millions of veterans, particularly all those who are struggling with the effects of toxic exposure, and their family members really.

Nicholas: Perfect. Thanks, Emma. Either of you, any other thoughts? I know we’ve covered a lot of ground today. And again, this is going to be a learning process for all of us as we work our way through, especially for the effective dates, in particular, how that’s going to work, how you can still continue to pursue your claims, even if it only goes as far back for presumptive purposes as the date of the Act.

So, as we encouraged earlier, consider filing claims as soon as possible if you have any of the claimed conditions. Consider reaching out to an authorized representative so that they can sort of better explain how this might affect your claims process. And check our blog. Like I said, we’re going to have a lot more comprehensive information there than we were able to cover in today’s video and sort of break out the different areas and the different conditions.

So, that’s all we have for you today. Thank you for tuning in. Be sure to follow us on social media and subscribe to our channel so you don’t miss any updates as the bill works its way forward and hopefully gets faster.