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VA Disability Benefits For Cancer

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Jenna Zellmer: Good afternoon! Welcome to CCK live. My name is Jenna Zellmer, I’m an attorney here at Chisholm Chisholm & Kilpatrick and joining me today are Michelle DeTore and Lindy Nash who both represent veterans before VA. Today, we are going to be talking about cancer. So just a couple of housekeeping things before we get into the topic. If you have any questions or concerns, please feel free to leave them in the comment box below and we’ll do our best to try to answer them or direct you in the right- to the right place to answer those questions. We will also be linking more information on our blog. Let’s get into it.  So, cancer like any other disability, is treated by VA as a disability that could be service connected, if it’s related to service. Now, there are a couple different ways that cancer can be shown to be service connected. So obviously, if you are diagnosed with cancer while you are in service, that’s probably the easiest way, but the problem is that a lot of veterans don’t get diagnosed with cancer until many years after service. Why do we really see veterans about cancer so far after their time in service? Well, a lot of it times it depends on the two things that they’re exposed to in service. VA has some policies in place to talk about, you know, what chemicals they have conceded; have been used in service and what chemicals they conceded, may later develop into cancer, and, like any other disability, VA has a bunch of different regulations regarding how they service connect them. So, obviously, like I said before, if you have cancer in service, you can get direct service connection, but there are also different presumptions and different rules depending on what cancer you have and where you served, that can come into play. So it’s a really complicated area of law. Cancer isn’t something that most people without medical training are competent or have the expertise to identify and diagnose. So, if you do have cancer and you are seeking to get service-connected, I would encourage you to reach out to your veterans’ representative whether it’s a veteran service organization and attorney; anyone who has a little bit more familiarity with veterans law because they can really guide you through the system. So, I think mostly today we’re going to be focused on exposure and then we’re going to talk a little bit about how VA rates cancer. So Lindy, the first most common exposure that we see a lot of veterans with cancer have is Agent Orange. Do you want to talk a little bit about Agent Orange?

Lindy Nash: Yeah, definitely. So, as you said, one of the ways that we most often see cancer stemming from a veteran service is because they were exposed to Agent Orange or some other type of herbicide agent while in service. So typically, we see this associated with Vietnam-era class veterans and so that can occur in numerous different places. So let me just hit on those really quick. The first one would obviously be time in Vietnam. So if you spent any part of your service in Vietnam, and if you were boots on the ground between 1962 and 1975, you are presumed to be exposed to Agent Orange. I think we’ll talk about that a little bit more later, but just to start off, that is if you’ve served in Vietnam and you actually stepped foot on the ground there.

Additionally, in June 2019, President Trump signed into law the Blue Water Navy Vietnam Veterans Act of 2019. So that actually extended the presumptions. So if you served aboard a ship in the open waters off the coast of Vietnam, but never went ashore, so you didn’t have to step on land at all, you’re offered the same presumption of herbicide agent exposure, as again, as those who stepped on-foot on land.

Then to be eligible for that, you have to serve offshore within 12 nautical miles of the demarcation line, again, between 1962 and 1975. We’ll touch on that again a bit later.

Similarly, if you were in Thailand, VA has conceded use of herbicides there as well. Specifically if you spent time on or near the perimeter of several different Royal Thai Air Force bases, between January 1962 and May 1975, you may also have been exposed to herbicide agents. Another place would be the Korean DMZ. So Agent Orange was actually used in or near the Korean demilitarized zone, otherwise known as the DMZ, VA will presume that you’ve been exposed if your unit was there.

So the Department of Defense and VA have actually come up with a list of certain units who were exposed to Agent Orange or herbicide agents during the specific time, September 1967 to August 1971. So again, those are specific units. Then lastly, another type of exposure we see with herbicide agents is if you spent any time in Fort McClellan. So Fort McClellan was an Army based down in Alabama and the chemical Corps operated there, so a lot of hazardous chemicals came and went through Fort McClellan; there was a lot of testing that was done there. They actually closed in 1999. While there’s no presumption associated with Fort McClellan, there is evidence that PCBs and certain other chemicals leaked into the ground and the environment and contaminated the surrounding area. So those are kind of the most popular locations and a lot of the arguments we make circulate around those areas.

Jenna: Great, and I think that you did a great job of listing those kind of an order from most favorable or easiest maybe, to establish a presumption, to hardest.

Lindy: Yes.

Jenna: So what exactly is the VA’s presumptive policy for Agent Orange? Of those locations, what do you think is the easiest and which ones might have a Veteran need a little bit more help with?

Lindy: Yeah, definitely. So under 38 CFR 3.309E, VA has conceded that if you were exposed to herbicides when you’re just in service, several different conditions are presumptively service-connected, and going along those lines, and I mentioned this a little bit earlier, if you were in Vietnam, so if you were boots on the ground meaning you walked on land in Vietnam between January 1962 and May 1975, you are presumed exposed to Agent Orange, so VA should not give you any trouble if you were to say something like that assuming that it’s in your service records that you were there at that time.

So that is easier, if you will, to show that you were exposed to Agent Orange and therefore, if you have a certain condition listed within 3.309E, you should be granted service-connection relatively easily. Similarly, and it is kind of new law, they’re still working the kinks out, but with the Blue Water Navy Veterans, it should should be another similar situation along those lines. If you have proof that you were on a ship, off the coast of Vietnam, 12 nautical miles from the demarcation line, again, you’re presumed exposed to Agent Orange. If you have one of those conditions, it should be, again, easy to prove that you were exposed and therefore your condition should be granted service connection.

Same with the DMZ. So the Korean DMZ like I mentioned earlier, if you were in a specific unit, VA and DOD have recognized certain units, you can find that list online. They will concede that you were exposed to Agent Orange if you were there between September 1967 and August 1971. So those are, kind of, I don’t want to say best-case scenarios, but those are some of the easier ways to show service-connection for cancer is warranted.

Jenna: It’s a double presumption, right? There are certain cancers that- so once you demonstrate that you’re presumed exposed to Agent Orange, then there are certain cancers that are presumed to be due to exposure to Agent Orange if that makes sense.

Lindy: Yes. Yep, exactly. I will list all of those- and really quick to go back to Fort McClellan for a second that would be probably one of the harder cases to prove, because there is no presumption associated with that; you definitely most likely would need a medical opinion or someone who has the ability to link your condition to whatever exposure you’re claiming due to your time at for McClellan. So those are the more challenging cases and those, definitely, even give us a hard time here at CCK so you’d need a lot of development and definitely a medical opinion. Then to go back to what Jenna was just saying, there are certain cancers that are listed in 3.309E. So if you were presumed exposed to Agent Orange, that’s the first presumption and then if you have a certain type of cancer, that’s the second presumption. So those conditions or those cancers listed in that regulation would be chronic B-cell leukemia, Hodgkin’s Disease, multiple myeloma, non-Hodgkin’s lymphoma, prostate cancer, different types of respiratory cancers and also soft tissue sarcomas.

Jenna: Great, and then obviously, if a veteran has a different type of cancer, they can still qualify for VA benefits, right?

Lindy: Yes, definitely. So just because you don’t have one of those types of cancers that I just listed, that doesn’t mean you’re not deserving of service-connection or VA benefits. It just means it might be a little bit more challenging of a road but as long as you have a medical opinion, hopefully everything will be all set.

Jenna: You know, we have a lot of veterans who have been exposed to Agent Orange, new information is coming out every day about where Agent Orange was used. Just most recently, a study came out that suggests Agent Orange is used in Guam, so just because you might not be entitled to the presumption of exposure doesn’t mean that you should give up on your claim. I would really recommend checking out our website, we have a lot of information on Agent Orange. I believe that we even have a Facebook live on Agent Orange, and like I said earlier, definitely talking to your representative about the best way to support your claim because there’s a lot of information out there and it can be a little bit overwhelming.

So moving on from Agent Orange, the next big exposure type that we see is Radiation. Michelle, do you want to talk a little bit about radiation?

Michelle DeTore: Sure. So with radiation, VA has a presumptive policy for veterans who participated in radiation risk activity. So here, you’re going to be talking about on-site participation in testing involving atmosphere detonation of a nuclear device, but more specifically you’re going to be usually talking about your World War II veterans that were in Japan from a 1945 to 1946. Any nuclear war testing, weapons testing, if they were assigned to any gaseous diffusion plants, there’s actually three that VA notes in their regulations. You’ll actually find that in 3.309. Those plants are located in Ohio, Kentucky and Tennessee. An the requirements are usually that you’re there for at least 250 days and it’s prior to 1992.

Michelle:  Prior to 1974, there was an area in Alaska where there were some underground nuclear testing. Some certain MOS’s, which is a military occupational specialty, will have a veteran with exposure to radiation. So you’re thinking kind of more like an x-ray technician, you may have worked in the reactor plant, or you’re working in nuclear medicine, there’s also other various jobs in the military, that could have exposed you.VA also has some certain operations that they believe would have probably put a veteran at risk for said exposure to radiation. You can also find that located in the regulations under 3.309, and it usually list occupations and operations from 1945 to 1962, where you’ll kind of see that exposure.

So for radiation, VA pretty much concedes that almost all cancer could possibly be related to radiation. However, they do list out certain cancers that they believe are related to it. I apologize it’s a lot, so it’s: bile duct cancer, bone cancer, breast cancer, colon cancer, gallbladder cancer, liver cancer, lung, the pancreas, the pharynx, the ovaries, the salivary glands, small intestine, the stomach, the thyroid, urinary tract cancers. Also, leukemias, lymphomas and multiple myeloma, but like I said, VA has pretty much conceded that there is a possibility that most cancers are related to it.

I think that when you don’t have it listed as VA conceding it already, there’s that aspect of getting a medical opinion that you would need to compare to these other ones. So when VA find something to be presumptive, you usually don’t need a medical opinion that finds that the said exposure. So here would be the radiation exposure lead to the cancer but if VA hasn’t already conceded that cancer is due to radiation exposure, then you’re going to be needing, not only a current diagnosis of the cancer, you’re going to need to show obviously the radiation exposure; you’re going to need that medical opinion from a doctor linking your cancer to that radiation exposure. Whereas if VA has already conceded that, you don’t need that element for service connection.

Jenna: Michelle, that’s a really good point that when VA creates a presumption, they’re essentially eliminating one of the elements that a veteran needs to show, in order to demonstrate service connection and so when Lindy and I were talking a little bit earlier about a double presumption. There are certain situations in which a veteran can get a presumption to have two of the three elements shown. So as long as you show that you have a disability, the in-service event and the nexus opinion are conceded and so, that’s probably the best outcome; the best possible situation for a veteran. If you don’t have that presumption, it doesn’t mean that you can’t get service-connected, It’s just a little bit more development is necessary. So I think that’s a really good point Michelle.

Michelle:  Yeah. It’s an extra element that makes your case just a little more difficult. It’s not impossible to get one, you can be talking with a lot of experts that work in the field or your actual doctors, it’s just an additional hurdle to overcome compared to when something is already conceded as presumptive. Then with radiation exposure, I don’t think a lot of people think about this as well, you have depleted Uranium is also a way that you can be exposed to radiation. For this, you’re really talking about your Gulf War Veterans. more so your OEF/OIF that’s Operation Enduring Freedom/Operation Iraqi Freedom, so it’s more of your current conflict that were likely exposed to this during their service. That’s another way which isn’t as clear-cut that people think that you might have been exposed to radiation while in service.

Jenna: So we’ve talked about Agent Orange and Radiation. I think those are probably the two most common types of exposures that we see, or at least that people think of when they think about what can cause cancer. Water isn’t really something that you think would cause cancer but Lindy, I think, is going to tell us otherwise.

Lindy: Yes, so there is a base in North Carolina called Camp Lejeune and if you were a veteran stationed there at Camp Lejeune between August 1953 and December 1987, you were exposed to toxins in the drinking water. The only restrictions are that, you must have been there for 30 consecutive days and you need a- you cannot have a dishonorable discharge. But as long as you have those two things, VA will presume that certain cancers are caused by your exposure to the toxic water at Camp Lejeune. Those cancers would include adult leukemia, bladder cancer, kidney cancer, multiple myeloma and non-Hodgkin’s lymphoma.  So if you have one of those conditions and you can prove that you were at Camp Lejeune for 30 consecutive days, during that specific period of time and you don’t have a dishonorable discharge, you are entitled to service-connection.

Jenna: Great. I think that we recently did a CCK live all about Camp Lejeune. So- definitely check it out, It has a lot of great information. If you served in Camp Lejeune, that’ll probably get a little bit more into detail, but definitely know that if you have one of these cancers, you might be entitled to benefits. Lastly, in terms of areas where veterans served that could have caused cancer is burn pits. So this is a little bit more recent, than maybe some of the veterans who served- who are exposed to Agent Orange. More recently, veterans have been exposed to burn pit smoke. Michelle, tell us a little bit about how veterans who served in burn pits can benefit from cancer disability ratings.

Michelle:  So with burn pits, just to provide a little background, you’re talking about your current conflict veterans. So burn pits were basically used because people on base needed to find a way to get rid of everything on base, so they were burning anything from human waste, medical waste, plastic, tires. And as you can imagine, you’re burning this in an open area and you’re constantly burning this. So all the toxic chemicals that were in all the stuff is now in the air. I remember people telling you that if you leave a water bottle in the car for too long in the summer, you shouldn’t drink it. Can you imagine now you’re breathing this in.  So with burn pits, veterans were often on base, they were exposed to this stuff, and unfortunately with burn pits, currently, there is no presumption. But there are some testing that’s been done in the recent years. Where the Department of Defense went out, they tested the air sampling there, to see if there was chemicals or hazardous material in the air. One of the things that they’d found in testing for was a chemical called TCDD, which is also a chemical found in Agent Orange.

 As Lindy was discussing previously, there are several cancers that are linked to Agent Orange exposure and our office, as well as other people, are up to believe that you should be able to argue that, because you were exposed to burn pits, you were also therefore, should be presumptively given the right that you- this cancer that you obtained that is presumptive for Agent Orange should also be presumptive for burn pits because that chemical was also found in the air from burn pits.

However, it’s not just limited to that, for burn pits, like we were talking about earlier, there’s no presumption. So you are going to need a medical opinion and you can get medical opinions to a lot of cancers. We commonly, unfortunately, see a lot of brain cancers and medical experts will usually link that, the brain cancer, to the exposure to the in-service burn pits.

Jenna: Great. Yeah, I think that the logic behind the time- the presumption that is currently in place for Agent Orange to burn pits makes a lot of sense, the presumption isn’t based on the name Agent Orange, right? It’s based on the underlying chemicals that VA has found to cause cancer and so if those same underlying chemicals are conceded to have been found in other places like burn pits, that’s definitely something that we’re trying to push VA in the right direction.

But as I mentioned before, I think it’s really important that if you have one of these cases where you think  your cancer is due to your burn pit exposure, it’s really important to make sure that you get the right representation; get a good doctor who knows your situation and who knows both the law and the science behind it. So this will be interesting to see. Kind of where it goes in the future and hopefully VA will move in the right direction.

Lastly for exposures, we have occupational hazards. So this is a little bit less about where you served and what you’re exposed to where you served, but more about what you were doing in service. Michelle mentioned earlier and MOS is a military occupational specialty. So Lindy, how can an MOS results in cancer?

Lindy: Yes. So this is a little bit more unique, but we do see situations like this from time to time in our cases. So often, if you are dealing with a certain type of cancer, it could be really helpful to look at your MOS and think back to what you were exposed to while you were doing those certain tasks in service that were associated with your occupational specialty. So a certain example could be maybe you are around different industrial solvents because these were often used in cleaning and degreasing, paint stripping, things along those lines, and within those industrial solvents are really dangerous chemicals or can be dangerous such as Benzene or other hazardous chemicals that can cause cancer. So that’s a certain example that we’ve seen before, if you use any of these dangerous chemicals during your daily routine, there’s a chance that that exposure could have caused your cancer later on. We’ve seen really, you know different types of examples. I have a client who was a military photographic specialist. So he was exposed to all these different chemicals by processing photographs and it hasn’t been granted or anything, but that’s a theory that we’re looking into. Because he said that he was around really serious chemicals while he was processing all these photographs. So I just think it’s important to, if you’re dealing with the cancer like this, think back and try to remember if you were exposed to any sort of odd chemical or cleaning solvent. Anything that you think could have potentially cause your cancer because you never know, there are certain experts who may be willing to apply in that- you’re regular exposure to those chemicals, could have caused your cancer further on down the road.

Jenna: Great, and in addition to some of those chemicals, I think a lot of veterans have Asbestos exposure. So, you know, if you have certain lung disease or lung cancer or any sort of respiratory cancer, that’s something to look into, lead exposure. So yeah, I think that’s a good point too, if you don’t have service in Vietnam during the correct time or you weren’t at Camp Lejeune, but you do have cancer, it’s really important to think about any sort of potential theory or way that you might have been exposed to something. So, good. So let’s assume a veteran has overcome the first hurdle and obtained service connection. Michelle, how does VA rate service-connected cancers?

Michelle:  Cancers are pretty easy to understand how VA is going to rate them. If it’s active, you’re going to get a hundred percent. Then if it’s not active, VA usually waits six months and then they will rate you based on the residuals of your cancer. However, I will say, not always do they check back to see if the cancer is going to remain active, sometimes they understand that some cancers are terminals, some cancers are not going to get better. So don’t always get rescheduled for exams. But often times VA, when they do award a hundred percent rating for a cancer, they’ll let you know in six months or in a year. They’re going to reschedule you for a new examination, so don’t be surprised If you do get it scheduled for one. They’re going to be basically assessing if it is still active and if not, they’re going to be assessing for the residuals of that condition. So that’s kind of common, what you’ll see for VA handling cancers when they’re active and non-active.

Jenna: Great. Yeah, for that time period in which a veteran is rated a hundred percent for an active cancer, we call that a temporary total rating because it’s only a hundred percent for the time that it is actually active, as opposed to permanent total. We have a lot of information about the differences and temporary versus permanent and total and how all the different ways that veterans can get a total rating. But like Michelle said, once your cancer is in remission, VA is going to rate you just based on the residuals of that cancer. So Lindy, what exactly are residuals?

Lindy: Yeah. So ratable residuals can include anything that was either caused by the actual cancer itself or something that was maybe caused through the treatment of cancer. So maybe a certain residual developed after chemotherapy, or something along those lines. So it really varies, we see all sorts of residuals from our clients and one of the most frequent that I see is usually after prostate cancer some residuals follow like urinary incontinence, or voiding dysfunction and things along those lines. So those two residuals can be service-connected and you can be compensated even though your cancer is no longer active. You’re dealing with these residuals that are really severe and are causing a lot of trouble in your daily life. So when you do get scheduled for that exam be as honest as possible, let the examiners know what you’re going through, it’s not a time to hold back; be honest with them about any kind of residual that you’re experiencing either exactly from your cancer, or maybe from treatment, or anything along those lines. So just be as open as possible with your examiner and if you aren’t scheduled for an exam just yet, you can always submit at least, a statement and explain to the VA what you’re going through.

Jenna: Great. We’ve had a lot of information today, so I think we can wrap up. Do you guys have any advice or closing thoughts about how veterans can navigate the system when trying to get service-connected and rating rated for their cancer?

Lindy: A lot of these are more straightforward than others. So we talked about being in Vietnam, and if you were boots on the ground during a certain period of time you are presumed to be exposed to herbicide agents; Agent Orange. Then if you have one of those cancers listed in the regulation, it should be pretty straightforward. So that should be, again, an easy case for VA to handle. However, if you have one of these more nuanced situations, it can be really difficult to navigate. So having representation or reading blogs and doing your research can really benefit you. Then you may need a medical expert or opinion to substantiate your claim and get service connection. So don’t be afraid to reach out to a medical professional and ask them if your exposure to those cleaning solvents may have caused your current cancer.

Michelle:  Yeah, and I will just echo what Lindy was just saying about examinations. When you go and the cancer is no longer active, you really got to talk about what your residuals are, because that’s what VA is going to be rating on. They use mostly the VA examination to determine what those residuals are. so if for some reason, they’re not addressed or talked about during the examination, it is your best interest to try to submit lay evidence and also know when it’s time to seek assistance from a representation whether it’s a veteran service organization, or practitioner, or attorney’s office. It’s always good to know what your options are, and they would be able to assist you usually.

Jenna: Great. Well, thanks for joining us today. I hope that this has been informational. Please visit our website at cck-law.com for more information about cancer and service connection; and Agent Orange; and all these really complicated situations that veterans face every day. We hope that we can do our best to guide the process a little bit; make it a little bit easier. We will see you next week.