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allan

Subject: Agent Orange Exposure

Question

Subject: AGENT ORANGE EXPOSURE

3.8 DISABILITY COMPENSATION FOR DISEASES ASSOCIATED WITH AGENT

ORANGE AND OTHER HERBICIDES USED IN VIETNAM

3.8.1 The Three Requirements for Disability Compensation Based Upon Agent Orange

Exposure

3.8.1.1 The Vietnam Service Requirement

3.8.1.2 The Second Requirement: Medical Evidence That the Veteran Has a Disease, or the

Residuals of a Disease, Associated with Agent Orange Exposure

3.8.1.3 The Third Requirement for Some Diseases: Medical Evidence of the Onset of the

Disease Within a Certain Time Period

3.8.1.4 Special Rules Regarding Non-Hodgkin's Lymphoma (NHL)

3.8.2 Veterans Should Reapply If Previously Denied Compensation for a Disease Listed in

Table 3-1

3.8.3 Vietnam Veterans Who Have a Disease Not Recognized by VA as Connected to Agent

Orange Exposure

3.8.4 Veterans Exposed to Agent Orange Outside Vietnam or Not During the Vietnam Era

3.8.5 The Lawsuits Against the Chemical Companies that Manufactured Agent Orange

Congress and the VA have afforded Vietnam veterans with an additional method to qualify

for compensation benefits for certain diseases associated with Agent Orange.541 Vietnam

veterans who have one of the diseases now recognized by the VA as connected to Agent Orange

exposure, or the residuals of one of these diseases, are able to have their disabilities

presumptively service connected.

This change in law is relatively recent.542 During the 1970s and 1980s, the VA denied tens

of thousands of claims for disabilities and death which Vietnam veterans and their survivors

attributed to Agent Orange exposure. Partially due to NVLSP's advocacy, the VA was forced to

acknowledge beginning in 1990 that several types of cancer and other serious diseases are related

to Agent Orange exposure. As a result, thousands of Vietnam veterans and their survivors have

received hundreds of millions of dollars in disability and death benefits.

Additional favorable changes in law have recently occurred and may occur in the future. As a

result of the Agent Orange Act of 1991,543 the VA has contracted with an independent

organization, the National Academy of Sciences, to review the scientific evidence on links

between dioxin exposure and disease. Whenever the National Academy issues a periodic report

about its review of the scientific evidence, the VA must decide whether additional diseases

should be service connected. The Act requires the VA to service connect a disease based on

exposure to Agent Orange if the National Academy report and other evidence show a positive

association exists between Agent Orange and the disease. If the credible evidence for an

association between Agent Orange exposure and a disease is equal to, or outweighs the credible

evidence against, then the VA must service connect the disease.

Under the contract with the VA, the National Academy has already issued four reports on the

health effects of Agent Orange, plus a special report on the link between diabetes and Agent

Orange exposure.544 As a result of the first two reports of the National Academy, the VA added

many more diseases to the list of diseases presumed to be connected to Agent Orange exposure.

The National Academy is continuing to analyze the scientific studies on the health effects of

exposure to the herbicides used in Vietnam and will issue additional reports every two years until

the year 2014.545 Therefore, the VA may further revise their Agent Orange service connection

rules in the future. Advocates who represent Vietnam veterans and their surviving family

members can research the latest developments in this rapidly changing area of veterans' benefits

law on NVLSP's web site (http://www.nvlsp.org).

Footnotes

541. Agent Orange is the most commonly used of the many herbicides that were used during

the Vietnam War, including Agents Blue, White, Purple, Brown, Green and Pink. Agent Orange

was made from a combination of two compounds: 2,4-D and 2,4,5-T, which are chlorinated

phenoxy acids. Exposure to Agent Orange has been associated with a variety of adverse health

effects, largely because of the presence of a contaminant that is commonly known as dioxin. For

purposes of this Manual, the term "Agent Orange" is used to refer to all of the herbicides used in

Vietnam.

542. See 38 U.S.C.S. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2002).

543. 38 U.S.C.S. § 1116(a).

544. In 1999, then Secretary of Veterans Affairs, Togo West, requested that the National

Academy expedite its report on Agent Orange exposure and diabetes. This report was issued on

October 11, 2000, resulting in the addition of type 2 diabetes to the list of diseases presumed to

be connected to Agent Orange.

545. See Pub. L. No. 107-103, Tit. II, § 201(d)(2), 115 Stat. 988 (Dec. 27, 2001).

3.8.1 The Three Requirements for Disability Compensation Based Upon Agent Orange

Exposure

To qualify for disability compensation based on Agent Orange exposure, a veteran only needs

to satisfy two or three simple rules: (1) the veteran served in Vietnam during the Vietnam era;

and (2) the veteran currently has one of the diseases, or the residuals of one of the diseases,

recognized by the VA as linked to Agent Orange exposure to a disabling degree of 10% or more;

and (3) for some (but not all) of the recognized non-cancer diseases (but not for any of the

recognized cancers546), the disease manifested itself within a certain time period from the last

day of service in Vietnam.

Footnotes

546.. Prior to 2002, the recognized respiratory cancers were subject to a time manifestation

requirement. See Section 3.8.1.3.

3.8.1.1 The Vietnam Service Requirement

Vietnam veterans do not need to prove actual exposure to Agent Orange or any other

herbicide during service in Vietnam to qualify for presumptive service connection. The rules

require the VA to assume that if a veteran served in Vietnam, the veteran was exposed.547

Therefore, the requirement of an in-service precipitating event reduces to showing that the

veteran served in Vietnam during the Vietnam era.

Service in Vietnam is defined as "active military, naval, or air service . . . in the Republic of

Vietnam at some point between January 9, 1962, and May 7, 1975."548 This includes service "in

the waters offshore and service in other locations if the conditions of service involved duty or

visitation in the Republic of Vietnam."549 Flying over Vietnam in an aircraft, without landing in

Vietnam, does not qualify as service in Vietnam.550 Further, serving on board a ship in the

waters offshore, without any visitation in Vietnam, generally does not qualify as service in

Vietnam.551

Footnotes

547. See 38 U.S.C.S. § 1116(a).

548. 38 C.F.R. § 3.307(a)(6)(iii) (2002). See also, 38 U.S.C.S. § 1116(a)(3).

549. Id.

550. VA Gen. Coun. Prec. 7-93 (Aug. 12, 1993).

551. VA Gen. Coun. Prec. 21-97 (July 23, 1997).

3.8.1.2 The Second Requirement: Medical Evidence That the Veteran Has a Disease, or

the Residuals of a Disease, Associated with Agent Orange Exposure

To satisfy the second requirement, Vietnam veterans only need submit medical evidence

showing that they currently have one of the recognized diseases (or its residuals) to a disabling

degree of 10% or more.552

All of the diseases on the VA's recognized list of conditions linked to Agent Orange exposure

as of the date of publication of the 2002 edition of this Manual appear in the left-hand column of

Table 3-1.

Table 3-1553

Diseases Recognized by VA as Length of Time Requirements: (When

Connected to Agent Orange Exposure symptoms of the disease have to appear

and result in a disability at least 10%

disabling in order to qualify for benefits)

Types of Cancer

Cancer of the Bronchus No time requirement (veteran qualifies no

matter when this disease first appears).

Cancer of the Larynx No time requirement (veteran qualifies no

matter when this disease first appears).

Lung Cancer No time requirement (veteran qualifies no

matter when this disease first appears).

Prostate Cancer No time requirement (veteran qualifies no

matter when this disease first appears).

Cancer of the Trachea No time requirement (veteran qualifies no

matter when this disease first appears).

Hodgkin's Disease No time requirement (veteran qualifies no

matter when this disease first appears).

Multiple Myeloma No time requirement (veteran qualifies no

matter when this disease first appears).

Non-Hodgkin's Lymphoma No time requirement (veteran qualifies no

matter when this disease first appears).

Diabetes (Type II; also known as diabetes No time requirement (veteran qualifies no

mellitus) matter when this disease first appears).

Types of Soft Tissue Sarcoma Time Requirement

Adult Fibrosarcoma No time requirement (veteran qualifies no

Alveolar Soft Part matter when this disease first appears).

Sarcoma

Angiosarcoma

Clear Cell Sarcoma of Aponeuroses

Clear Cell Sarcoma of Tendons and

Aponeuroses

Congenital

Fibrosarcoma

Dermatofibrosarcoma

Protuberans

Ectomesenchymoma

Epithelioid Malignant

Leiomyosarcoma

Epithelioid and Glandular Malignant

Schwannomas

Epithelioid Sarcoma

Extraskeletal Ewing's

Sarcoma

Hemangiosarcoma

Infantile

Fibrosarcoma

Leiomyosarcoma

Liposarcoma

Lymphangiosarcoma

Malignant Fibrous Histiocytoma

Malignant Giant Cell Tumor of the

Tendon Sheath

Malignant Glandular

Schwannoma

Malignant Glomus Tumor

Malignant Hemangiopericytoma

Malignant Mesenchymoma

Malignant Ganglioneuroma

Malignant Granular Cell Tumor

Malignant Leiomyoblastoma

Malignant Synovioma

Malignant Schwannoma with

Rhabdomyoblastic

Differentiation

Proliferating (systemic)

Angiendotheliomatosis

Rhabdomyosarcoma

Synovial Sarcoma

Diseases Other Than Cancer Time Requirement

Peripheral Neuropathy (acute or subacute) Within months of exposure to Agent

Orange in Vietnam and cured within two

years after symptoms first appear (Note:

this time requirement is written so

narrowly it appears to be impossible for

any Vietnam veteran to qualify).

Chloracne Within one year of the last day the veteran

served in Vietnam.

Porphyria Cutanea Tarda Within one year of the last day the veteran

served in Vietnam.

Disabilities in Children of Vietnam Time Requirement

Veterans

Spina Bifida554 Child must have been conceived after

veteran first arrived in Vietnam.

Certain Birth Defects in Children of Child must have been conceived after

Female Vietnam Veterans555 veteran first arrived in Vietnam.

It is important to understand that medical terms sometimes change. For example,

Non-Hodgkin's lymphoma (NHL) has been called by many different names, such as

lymphosarcoma and reticulum cell sarcoma. Appendix 3-G to this Chapter contains a list of some

common terms for NHL. To find out for sure whether the veteran's diagnosed disease is among

those that are presumptively service connected due to exposure to Agent Orange, consult with a

medical professional. To help understand the nature of the diseases listed above in Table 3-1, a

short description of most of these diseases appears in Appendix 3-F to this Chapter.

Vietnam veterans who develop one of the cancers listed in Table 3-1 may still be denied

disability compensation if the cancer on the list developed as a result of, or was caused by a

different cancer. The U.S. Court of Appeals for Veterans Claims has ruled that if a Vietnam

veteran first develops a cancer that is not listed in Table 3-1, like colon cancer, and that cancer

later shifts or spreads (in medical language, "metastasizes") to another part or organ of the body

so that the veteran then has a cancer that is listed in Table 3-1, like lung cancer, the VA is not

required to grant the claim under the Agent Orange exposure regulations.556

On the other hand, if the veteran first develops a cancer that is listed in Table 3-1 and it shifts

or spreads to another part or organ of the body that is not listed in Table 3-1, the VA must grant

the claim and, in rating the degree of disability, it must consider the disabling effects of both the

original cancer and the secondary cancer sites that may develop from the original cancer.557

**Advocacy Tip** The key to winning a claim when the veteran suffers from at least one cancer

on the VA list and at least one cancer that is not on the list is to obtain helpful medical evidence.

Veterans and their advocates should try to get a statement from a physician, preferably an oncologist

(a physician who is a specialist in cancer), stating that in the physician's expert opinion, it is as

likely as not (or, even better, that it is very probable) that the cancer on the VA list was a "primary"

cancer, and did not develop from a different cancer that the veteran already had.

Footnotes

552. See 38 C.F.R. § 3.307(a)(6)(ii) (2002).

553. This list of diseases associated with Agent Orange exposure as recognized by the VA

appears in 38 C.F.R. § 3.309(e) (2002), except spina bifida in children of Vietnam Veterans

which appears in 38 C.F.R. § 3.814 (2002).

554.See 38 C.F.R. § 3.814 (2002). See also Section 7.5 of this Manual for further

information concerning benefits for children born with spina bifida.

555.Congress has required the Secretary of Veterans Affairs to publish regulations

identifying the birth defects that will qualify. See U.S.C.S. §§ 1811-15. These regulations were

not published as of the publication of the 2002 edition of this Manual. When published, these

regulations must have an effective date of December 1, 2001. See generally Section 7.5.1.1. of

this Manual.

556. Darby v. Brown, 10 Vet. App. 243 (1997).

557. See 38 C.F.R. § 3.310 (2002).

3.8.1.3 The Third Requirement for Some Diseases: Medical Evidence of the Onset of

the Disease Within a Certain Time Period

For some of the non-cancer diseases on the VA's list, there is a third requirement: that the

condition became manifest (that is, symptoms of the condition began to appear) within a certain

length of time after leaving Vietnam.558 For diseases with a time requirement, the veteran must

also show that the disease caused a disability that is at least 10% disabling within the same

required time period.559 If there is a requirement that the disease appear within a certain time

period, the time period appears in the right-hand column to Table 3-1 above.

The proof that the disease manifested to the required degree within the required period must

be in the form of medical evidence. Advocates should explore whether a physician is available

and able to state, at minimum, that it is at least as likely as not that if the veteran experienced the

symptoms as reported to the physician, the veteran was experiencing the symptoms of the

disease. This medical evidence coupled with the veteran's or survivor's statement about the early

symptomatology and any corroborating statements, should lead the VA to find that the claimant

has satisfied the manifestation period requirement.

Prior to 2002, the recognized respiratory cancers – that is, cancer of the lung, larynx,

bronchus, and trachea – were subject to a time manifestation requirement. Under the rule in

effect from 1994 (when the VA first recognized these respiratory cancers as being related to

Agent Orange exposure) through 2001, a respiratory cancer would not qualify under the VA's

Agent Orange rules if the cancer first became manifest to a degree of 10% or more after 30 years

had already expired from the last day of the veteran's service in Vietnam.560

Congress repealed the 30-year manifestation rule for respiratory cancers, effective on January

1, 2002.561 Thus, the rule now is that a Vietnam veteran who develops a respiratory cancer to a

disabling degree of 10% or more, or a qualifying surviving family member of a Vietnam veteran

who dies of a respiratory cancer, is entitled to compensation based on that cancer no matter now

when the respiratory cancer first appeared.

A Vietnam veteran or surviving family member who applied for, but was finally denied

compensation because of the 30-year manifestation rule, can now qualify for compensation

simply by filing a new application. To ensure that the VA grants the new claim – as it should --

the veteran or survivor should alert the VA to the fact that the 30-year manifestation rule has

been repealed.

If this new claim is filed before January 1, 2003, the effective date of the award should be

January 1, 2002, or the date the cancer became manifest to a disabling degree of 10% or more,

whichever date is later. If the new claim is not filed until after January 1, 2003, the effective date

of the award should be one year before the date the VA received the new claim, or the date the

cancer became manifest to a disabling degree of 10% or more, whichever date is later. Because

Congress did not make the repeal of the 30-year manifestation rule retroactive, the effective date

of an award of benefits cannot be before January 1, 2002, in a case in which the respiratory

cancer first became manifest more than 30 years after the veteran's last day of service in Vietnam.

Footnotes

558. See 38 C.F.R. § 3.307(a)(6)(ii) (2002).

559. See 38 C.F.R. § 3.307(a)(6)(ii) (2002).

560.. See 38 C.F.R. § 3.307(a)(6)(ii) (2002).

561.. See Pub. L. No. 107-103, Tit. II, § 201(a), 115 Stat. 987 (Dec. 27, 2001).

3.8.1.4 Special Rules Regarding Non-Hodgkin's Lymphoma (NHL)

The rules for service connection regarding Non-Hodgkin's lymphoma (NHL)562 are slightly

different than the rules for other disease linked to exposure to Agent Orange. One of the

regulations that grant service connection for NHL bases the connection on service in Vietnam

and not Agent Orange exposure.563 In most ways that regulation operates the same as

regulations granting service connection based on Agent Orange exposure. However, there are a

couple of differences worth noting.

One difference involves the definition of service in Vietnam. The definition of service in

Vietnam is slightly broader than it is for the other diseases listed in Table 3-1 above. For all

diseases other than NHL, veterans are required to have either had duty or visitation in

Vietnam.564 Under one of the two regulations providing for service connection for NHL, service

members who served in the waters off-shore do not have to show any duty or visitation in

Vietnam.565

Second, the effective date rules for an award of benefits for NHL under 38 C.F.R. § 3.313

are more favorable than the effective date rules for an award for an NHL claim based the Agent

Orange exposure under 38 C.F.R. §§ 3.307(a)(6) and 3.309(e). For these reasons, NHL claimants

should always cite to 38 C.F.R. § 3.313 instead of 38 C.F.R. §§ 3.307(a)(6)(3) and 3.309(e)

when filing a claim.566

In addition, effective October 23, 1995, the VA changed the rating schedule that is used to

determine the level of disability caused by NHL.567 Prior to that date, NHL was rated according

to the same criteria as Hodgkin's disease, with incremental percentage ratings for varying degrees

of disability.568 Under the amended regulation, NHL must be rated as 100% disabling when the

disease is "active" or during a "treatment phase."569 Thus, a veteran can only be 0% disabled or

100% disabled by NHL. However, if the disease is not active, the VA must also rate the veteran

on the residuals of NHL.570

Footnotes

562. For the purpose of service connection for this disease, the definition of NHL "includes

any diagnosis of a lymphoma (other than Hodgkin's lymphoma), mycosis fungoides, and old

terms such as lymphosarcoma, reticulum cell sarcoma, and Sternberg's sarcoma." VBA Circular

21-90-11, change 1, ¶ 2(b) (Jan. 25, 1991).

563. See 38 C.F.R. § 3.313 (2002).

564. See 38 C.F.R. § 3.307(a)(6)(iii) (2002).

565. There are two regulation that provide presumptive service connection for NHL, 38

C.F.R. §§ 3.313 3.309(e) (2002). (Service in Vietnam for purposes of 38 C.F.R. § 3.309(e)

(2001) is defined in 38 C.F.R. § 3.307(a)(6)(iii)) (2002)). 38 C.F.R. § 3.313 (2002) provides the

broader and more favorable definition of service in Vietnam for veterans.

566. See Section 8.6 of this Manual for more information concerning effective dates for

awards of benefits due to Agent Orange.

567. 60 Fed. Reg. 49,225 (1995).

568. 38 C.F.R. § 4.117 (1996). The diagnostic code for NHL is 7715. The diagnostic code

for Hodgkin's disease is 7709 (lymphogranulomatosis).

569. See 38 C.F.R. § 4.117 (2002).

570. Id. See also, Green v. West, 11 Vet. App. 472, 475 (1998).

3.8.2 Veterans Should Reapply If Previously Denied Compensation for a Disease Listed

in Table 3-1

It took over two decades after the U.S. military halted its spraying of Agent Orange in

Vietnam because of concerns about its dangers to the health of its troops for the VA to recognize

that Agent Orange is associated with seriously disabling diseases. As Table 3-2 below shows, the

VA did not begin to recognize this association until the 1990s. Column 2 of the table lists for

each disease the VA now recognizes as related to Agent Orange exposure the date that the VA

published amendments to its regulations recognizing the disease for the first time.

Table 3-2

Disease Publication Date Effective Date 38 CFR §

Chloracne 05-19-93 02-06-91 3.309(e)

Soft-tissue sarcoma (STS) 10-15-91 09-25-85 3.311a

05-19-93 02-06-91 3.307 & 3.309(e)

Non-Hodgkin's lymphoma 10-26-90 08-05-64 3. 313

05-19-93 02-06-91 3.307 & 3.309(e)

Porphyria Cutanea Tarda 04-03-94 04-03-94 3.307 & 3.309(e)

Hodgkin's disease 04-03-94 04-03-94 3.307 & 3.309(e)

Cancer of the lung 06-09-94 06-09-94 3.307 & 3.309(e)

Cancer of the larynx 06-09-94 06-09-94 3.307 & 3.309(e)

Cancer of the bronchus 06-09-94 06-09-94 3.307 & 3.309(e)

Cancer of the trachea 06-09-94 06-09-94 3.307 & 3.309(e)

Multiple Myeloma 06-09-94 06-09-94 3.307 & 3.309(e)

Prostate cancer 11-07-96 11-07-96 3.307 & 3.309(e)

Acute and subacute 11-07-96 11-07-96 3.307 & 3.309(e)

Peripheral Neuropathy

Spina Bifida in children of 09-30-97 10-01-97 3.814

Vietnam veterans

Type II Diabetes 05-08-01 07-09-01 3.307 & 3.309(e)

Prior to these changes, the VA's denial that a relationship exists between Agent Orange and

serious disabling diseases led the VA to deny tens of thousands of disability and death claims

filed by Vietnam veterans and their survivors, many of which asserted that Agent Orange caused

the disease or death. A Court Order issued in a class action lawsuit litigated by attorneys from the

NVLSP required the VA to automatically identify many of these previously denied claimants,

reevaluate their claims under the amended Agent Orange regulations, and, if they qualified under

the new regulations, grant them prospective and retroactive disability compensation or DIC

benefits.571 Unfortunately, the VA violated this Court Order by failing to identify many

claimants previously denied benefits for diseases the VA later recognized as related to Agent

Orange.572

Any Vietnam veteran who was previously denied disability benefits by the VA for a disease

listed in Tables 3-1 and 3-2 should file a new application for the same benefits under the new

regulations.573 The same advice applies to surviving family members of Vietnam veterans who

died of a disease listed in Tables 3-1 and 3-2 and who were previously denied DIC benefits by

the VA. Those who reapply and qualify for benefits under the rules discussed in this chapter will

not only receive benefits in the future, but, as discussed in Section 8.6 of this Manual, many of

them will also receive benefits retroactive to the date the VA received the claim it previously

denied.574

Footnotes

571. See Appendix 8-A at the end of Chapter 8 of this Manual. A description of this class

action lawsuit appears in Section 8.6.1 of this Manual.

572. See Nehmer v. U.S. Veterans Administration, 32 F. Supp. 2d 1175 (N.D. Cal. 1999).

573. Veterans who applied before and were denied but have no current disabling residuals

from the disease, should still re-apply as they may still be eligible for retroactive benefits.

574. Many veterans and surviving family members are entitled to retroactive benefits due to a

class action lawsuit brought by NVLSP, Nehmer v. U.S. Veterans' Administration. In Nehmer the

Court invalidated the VA's denials of all claims based on diseases related to Agent Orange

exposure, if such denials were made on or after September 25, 1985. See Nehmer v. U.S.

Veterans' Administration, 712 F. Supp 1404 (N.D. Cal. 1989). Pursuant to the Court's Order, all

claims based on Agent Orange-related diseases which it denied on or after September 25, 1985

must be readjudicated. Nehmer v. U.S. Dep't of Veterans Affairs, No. CV-86-6160 at ¶¶ 3 and 5

(N.D. Cal. May 14, 1991) (Final Stipulation and Order). For further information concerning

readjudication and retroactive effective dates under Nehmer, review Section 8.6 of this Manual,

and write to NVLSP's Agent Orange Resource Center, 2001 S Street, N.W., Suite 610,

Washington, D.C. 20009. Also available from NVLSP is a 45-page Self-Help Guide on Agent

Orange, published both in English and Spanish.

3.8.3 Vietnam Veterans Who Have a Disease Not Recognized by VA as Connected to

Agent Orange Exposure

Unfortunately, Vietnam veterans who develop a condition not on the VA's list have a hard

time convincing the VA that it resulted from exposure to Agent Orange. Although unlikely, it is

possible that a claim for compensation could be granted if a veteran can submit (1) a doctor's

statement that the veteran currently suffers from the disease or disability (or its residuals), and (2)

an opinion from a medical expert stating that it is as likely as not that exposure to Agent Orange

caused the disease or disability.575

As mentioned, the list of recognized diseases has changed on a number of occasions.

Veterans and their advocates should check to see whether, after the 2002 edition of this Manual

was published, the veteran's disease was added to the VA's list of diseases that are presumptively

service connected to herbicide exposure in Vietnam.576

If the disease is not on the VA's current list, veterans may still qualify for service-connected

disability compensation at this time under VA rules discussed earlier in this chapter that have

nothing to do with Agent Orange. In addition, if the veteran does not qualify for compensation

under any of the VA's rules, the veteran may still be able to get help at this time from the VA in

the form of a non-service-connected disability pension.577

Even if the veteran does not qualify for benefits under any current rules, it may still be

advisable to file a claim immediately. This is especially true if the disease at issue is one of the

diseases currently being studied by the National Academy and is among those most likely to be

added in the future to those diseases recognized by the VA as associated with Agent Orange

exposure. The benefit of taking this action is that if the VA later adds the disease to those that are

presumptively service connected and grants the claim, the veteran will have a better chance of

receiving retroactive benefits.

The following Table 3-3 lists the diseases most likely to be added to the list of diseases

recognized by the VA.

Table 3-3578

Diseases and Disabilities Having the Best Chance of Being Added in the Future

to the Conditions Connected to Agent Orange Exposure

Abnormal Sperm Parameters and Infertility

Birth Defects (Other than Spina Bifida in Children of Vietnam Veterans)

Bladder Cancer

Bone Cancer

Breast Cancer

Childhood Cancer (in Children of Vietnam Veterans)

Chronic Peripheral Nervous System Disorders

Circulatory Disorders

Cognitive and Neuropsychiatric Disorders

Female Reproductive Cancers (cervical, uterine, ovarian)

Hepatobiliary Cancers

Immune System Disorders

Leukemia

Liver Cancer

Low Birthweight (in Children of Vietnam Veterans)

Metabolic and Digestive Disorders (changes in liver enzymes, lipid abnormalities,

ulcers)

Motor or Coordination Dysfunction

Nasal or Nasopharyngeal Cancer

Neonatal or Infant Death and Stillbirths

Renal Cancer

Respiratory Disorders

Skin Cancer

Spontaneous Abortion

Testicular Cancer

Urinary Bladder Cancer

Footnotes

575. Prior to 2002, the VA would not presume exposure to Agent Orange unless the Vietnam

veteran had one of the diseases the VA recognizes as associated with Agent Orange exposure.

See McCartt v. West, 12 Vet. App. 164 (1999). Therefore, for claims concerning diseases not

presumptively service connected, evidence of exposure to Agent Orange had to be submitted. In

December 2001, Congress eliminated the need to submit exposure evidence, even for diseases

not yet recognized by the VA as presumptively service connected. See Pub. L. No. 107-103, Tit.

II, § 201©(1), 115 Stat. 988 (Dec. 27, 2001). For all diseases alleged to have resulted from

Agent Orange exposure, the VA must now assume that if the veteran served in Vietnam, he or

shewas exposed.

576. Congress has required the National Academy to continue until the year 2014 to write

new reports analyzing the scientific evidence that becomes available in the future. Whenever a

new report is issued, the VA may decide it needs to add more diseases to the list in Table 3-1.

The NVLSP web site (http://www.nvlsp.org) contains an up-to-date list of all the diseases

recognized by the VA.

577. The veteran may also qualify for free medical care. For more information, see Section

10.3.1 of this Manual.

578. See "Veterans and Agent Orange" Institute of Medicine, National Academy of Sciences

Press 1994; "Veterans and Agent Orange: Update 1996" Institute of Medicine, National

Academy of Sciences Press 1996; "Veterans and Agent Orange: Update 1998" Institute of

Medicine, National Academy of Sciences Press 1999; "Veterans and Agent Orange: Update

2000" Institute of Medicine, National Academy of Sciences Press 2001.

3.8.4 Veterans Exposed to Agent Orange Outside Vietnam or Not During the Vietnam

Era

The presumption for service connection only applies to veterans who served in Vietnam as

defined above. However, Agent Orange was used not only in Vietnam, but also in Korea and

other hostile areas.579 Until recently, the VA would grant compensation to veterans exposed to

Agent Orange outside of Vietnam only if the claimant proved exposure to Agent Orange and

submitted persuasive medical evidence of a connection between the veteran's current disease and

that exposure.580

In an apparent effort to equalize the treatment of all veterans exposed to Agent Orange, the

VA announced in 2001 that if exposure outside of Vietnam were proven, and the veteran had one

of the diseases presumed by law to be related to exposure to Agent Orange (see Table 3-1 above),

the medical condition would be presumed to have resulted from Agent Orange exposure and the

claim granted unless there were other disqualifying factors.581 The most difficult issue in these

cases is proving exposure. The authors of this Manual have been informed that the VA is in the

process of determining whether Department of Defense information is sufficient to presume that

some non-Vietnam units were exposed to Agent Orange. No VA determination of this type was

made as of the publication of the 2002 edition of this Manual.

The following areas outside of Vietnam have been confirmed as places where Agent Orange

was used: the Korean demilitarized zone in 1968 and 1969 (extensive spraying); and Fort Drum,

New York in 1959 (testing).

Other areas where veterans allege Agent Orange was sprayed or stored include: Guam from

1955 through 1960s; the Johnston Atoll (1972-1978); and the Panama Canal Zone from 1960s to

early 1970s.

Any veteran concerned about exposure to Agent Orange during its use, manufacture, testing

or transport outside of Vietnam is entitled to an Agent Orange physical by the VA and to be

added to the Agent Orange Registry.582

Footnotes

579. See BVA 98-17647 (Mar. 12, 1999); Todd Robertson, Bases May Have Been Sprayed

With Agent Orange, Dallas Morning News, Aug. 24, 1999.

580. See BVA 98-17647 (Mar. 12, 1999) granting compensation to a veteran who established

exposure to Agent Orange in Korea and who was diagnosed with NHL.

581. See comments on the final rule adding diabetes to the list of "diseases" in 38 C.F.R. §

3.309(e), at 66 Fed. Reg. 23166 (May 8, 2001).

582. Veterans Health Administration Directive 2000-027.

3.8.5 The Lawsuits Against the Chemical Companies that Manufactured Agent Orange

In 1978, a Vietnam veteran named Paul Reutershan filed a lawsuit against some of the

chemical companies that had manufactured Agent Orange. Other veterans later joined the suit,

which was broadened to include all seven manufacturers (Dow Chemical Company, Monsanto

Company, Hercules, Inc., T.H. Agriculture & Nutrition Company, Diamond Shamrock

Chemicals Company, Thompson Chemical Corporation, and Uniroyal, Inc.).583

The lawsuit sought money damages for injuries caused to Vietnam veterans and their families

by Agent Orange. The suit was a class action, that is, it affected not only the original plaintiffs,

but also all the members of a class as defined by the court that supervised the case. The class

members included any person who had been in the United States, New Zealand, or Australian

armed forces at any time from 1961 to 1972 who was injured while in or near Vietnam by

exposure to Agent Orange or other phenoxy herbicides. The class also included certain spouses,

parents, and children.

A settlement was announced on May 7, 1984, the day on which the trial had been scheduled

to begin. In exchange for the veterans' dropping the lawsuit, the chemical companies agreed to

contribute $180 million to a settlement fund. Between 1984 and 1988, when all of the appeals to

overturn the settlement were finally denied, the settlement fund grew to $240 million with

interest. In July 1988, the United States District Court for the Eastern District of New York

finalized plans to distribute cash and develop funding for services to veterans and their families.

The settlement money was divided into two main funds: $170 million to be paid directly to

disabled veterans or survivors (including $5 million for veterans from Australia and New

Zealand) and $42 million (later $52 million) to be used to fund programs that would benefit

Vietnam veterans and their families. About 5% of the fund went for attorneys' fees, paid out of

the interest earned on the original principal settlement amount.

The court established a payment program to distribute the $170 million set aside for Vietnam

veterans and surviving family members. The court also created the Agent Orange Class

Assistance Program (AOCAP) to administer the funds set aside to provide services to veterans

and their families. To be eligible for compensation under the payment program, veterans had to

have served in the U.S. armed forces in or near Vietnam any time from January 1, 1961, through

December 31, 1971; have been exposed to herbicides (using court-approved criteria) while in or

near Vietnam; and have a total disability that occurred prior to the veteran's 60th birthday. Not all

types of disabilities were compensable. A survivor was eligible for compensation if he or she

could show that the veteran had served in the U.S. armed forces in or near Vietnam any time

from January 1, 1961, through December 31, 1971; that the veteran had been exposed to

herbicides; and that the veteran had died before age 60 from a non-traumatic cause.

The final deadline for applications to the payment program was January 17, 1995. This

program is now closed, and it is too late to apply. While the program was open, 105,762 Vietnam

veterans or their survivors applied to the payment program; 52,023 of these disability and

survivor compensation claims were granted.

AOCAP is also closed now. During its existence, AOCAP administered grants to 85

programs (including NVLSP) to provide services to Vietnam veterans and their families. The

program disbursed more than $71 million and helped more than 239,000 Vietnam veterans and

their family members.584

Until 2000, it appeared that no matter when they developed a disease that may have been

caused by Agent Orange, Vietnam veterans could only receive compensation from the chemical

company manufacturers through the settlement of this class action. In Stephenson v. Dow

Chemical Co.,585 however, the Court of Appeals for the Second Circuit ruled that two Vietnam

veterans who first became ill after 1994 (that is, after all the settlement funds had been paid out)

"Keep on, Keepin' on"

Dan Cedusky, Champaign IL "Colonel Dan"

See my web site at:

http://www.angelfire.com/il2/VeteranIssues/

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