Agent Orange (AO) was a tactical herbicide used by the military to clear vegetation and leaves during operations primarily in the Vietnam War. Veterans exposed to AO may have certain related illnesses, some of which can be presumptively linked to service for VA disability benefits purposes.
Recently, three new conditions were added to VA’s list of presumptive conditions due to AO exposure. Bladder cancer, hypothyroidism, and Parkinson’s Disease-like symptoms are now diseases or illnesses eligible for presumptive service connection. The addition of these three new conditions is unique, as it is the result of Congress and not the VA. Presumptive conditions are typically determined by the VA based on scientific studies. In this case, although evidence from studies dating back to 2016 suggests a link between these conditions and AO, the Secretary did not propose any regulations to add these conditions. As a result of this, the new conditions were added through Congressional statue as part of a measure in the 2021 National Defense Authorization Act (NDAA). The NDAA is the yearly policy and spending bill for the Defense Department that passes through Congress.
While these new conditions are eligible for presumptive service connection a Veteran suffering from these conditions must still meet additional criteria for the VA to grant the claim. The Agent Orange Act of 1991 created the presumption of service connection. Presumptive service connection means a Veteran does not have the burden of showing a medical link or nexus between their condition and their active military service. If the Veteran has a condition listed as presumptively linked to AO and has qualifying military service, the VA will grant service connection.
Generally, a Veteran may qualify for presumptive service connection if the illness is caused by AO and the Veteran meets additional criteria regarding their military service. Specifically, for presumptive service connection to be granted a Veteran must have a qualifying illness or condition and served between January 9, 1962 and May 7, 1975 in the Republic of Vietnam, or abord a U.S. military vessel that operated in the inland waterways of Vietnam, or, on a vessel operating not more than 12 nautical miles seaward from the demarcation line of the waters of Vietnam and Cambodia, or, on a regular perimeter duty on the fenced-in perimeters of a U.S. Army installation in Thailand or a Royal Thai Air Force Base.
The VA also grants presumptive service connection for Veterans who served in or near the Korean DMZ between September 1, 1967 and August 31, 1971, for Veteran’s that served active duty in a regular Air Force unit where C-123 aircraft with traces of Agent Orange was assigned and had repeated contact with the aircraft, for Veteran’s involved in transporting, testing, storing, or other uses of AO during service, and for those assigned as a Reservist to certain flight, ground, or medical crew duties at specific locations.
The addition of Bladder cancer, hypothyroidism (a condition in which thyroid gland does not produce enough of certain hormones) and Parkinson’s-like symptoms (a condition with symptoms such as tremor, slow movement, impaired speech, and muscle stiffness resembling Parkinson’s disease but is not formally diagnosed), will make it easier for Veteran’s suffering from these conditions to obtain VA disability benefits through presumption.
In addition to the three new conditions of Bladder cancer, hypothyroidism, and Parkinson’s Disease-like symptoms, the VA presumes the following cancers and other illnesses are related to AO exposure:
- Chronic B-cell leukemia: A type of cancer that affects white blood cells. These are cells in the body’s immune system that help to fight off illnesses and infections.
- Hodgkin’s disease: A type of malignant lymphoma (cancer) that causes the lymph nodes, liver, and spleen to grow progressively larger. It also causes red blood cells to decrease more and more over time (called anemia).
- Multiple myeloma: A type of cancer that affects the plasma cells. These are a type of white blood cells made in the bone marrow that help to fight infection.
- Non-Hodgkin’s lymphoma: A group of cancers that affect the lymph glands and other lymphatic tissue. These are parts of the immune system that help to fight infection and illness.
- Prostate cancer: Cancer of the prostate and one of the most common cancers among men
- Respiratory cancers (including lung cancer): Cancers of the organs involved in breathing. These include cancers of the lungs, larynx, trachea, and bronchus.
- Some soft tissue sarcomas: A group of different types of cancers in body tissues such as muscle, fat, blood and lymph vessels, and connective tissues. We don’t include osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma on our list of presumptive diseases.
- AL amyloidosis: A rare illness that happens when an abnormal protein (called amyloid) enters the body’s tissues or organs. These include the organs like the heart, kidneys, or liver.
- Chloracne (or other types of acneiform disease like it): A skin condition that happens soon after exposure to chemicals. It looks like common forms of acne often seen in teenagers. Under our rating regulations, this condition must be at least 10% disabling within 1 year of herbicide exposure.
- Diabetes mellitus type 2: An illness that happens when the body can’t respond to the hormone insulin the way it should. This leads to high blood sugar levels.
- Ischemic heart disease: A type of heart disease that happens when the heart doesn’t get enough blood. This leads to chest pain.
- Parkinson’s disease: A progressive disorder of the nervous system that affects muscle movement—and often worsens over time. The nervous system is the network of nerves and fibers that send messages between the brain and spinal cord and other areas of the body.
- Peripheral neuropathy, early onset: An illness of the nervous system that causes numbness, tingling, and motor (or muscle) weakness. Under our rating regulations, this condition must be at least 10% disabling within 1 year of herbicide exposure.
- Porphyria cutanea tarda: A rare illness that can make the liver stop working the way it should. It can also cause the skin to thin and blister when exposed to the sun. Under our rating regulations, this condition must be at least 10% disabling within 1 year of herbicide exposure.
If a Veteran does not have an illness or condition presumptively linked to AO exposure and/or does not meet the criteria regarding the dates and locations of active service, VA disability benefits can still be granted on a direct basis. In these cases, a Veteran will have to show a current diagnosed condition, exposure to AO during their active service, and evidence of a medical link or nexus between their condition and active duty AO exposure.
More information on service requirements for presumptive exposure can be found on the VA’s website at https://www.va.gov/disability/eligibility/hazardous-materials-exposure/agent-orange/.
Mr. Finkelstein is the Managing Partner of Finkelstein & Partners, LLP. He has become a noted consumer activist through his representation of injured individuals against corporate wrongdoers and irresponsible parties.
An accomplished litigator, Mr. Finkelstein has represented Plaintiffs in wrongful death and catastrophic personal injury cases. He has successfully handled dozens of multi-million dollar cases.