A Military Veterans Guide To Disability Compensation and Pension Benefits- Agent Orange/Radiation/Gulf War Syndrome

The AO Presumptive List

Chloracne (Must occur within one year of exposure to Agent Orange)

Porphyria Cutanea  Tarda (Must occur within one year of exposure)

Acute or Subacute Peripheral Neuropathy (The term acute and subacute peripheral neuropathy means temporary peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset.)

Type 2 Diabetes

Non-Hodgkin’s Lymphoma

Soft Tissue Sarcoma

Hodgkin’s Disease

Multiple Myeloma

Prostate Cancer

Respiratory Cancers (Including cancers of the lung, larynx, trachea, and bronchus)

Chronic Lymphocytic Leukemia

Spina Bifida

VA may provide benefits for children with birth defects who were born  to  female Vietnam veterans






THE FORGOTTEN GUINEA PIGS: THE AGENT ORANGE AND A-BOMB TEST SURVIVORS AND YOU

A heartwrenching documentary and interview exposes the nature and effects of
the use of Agent Orange in Viet Nam. Dan Jordan and his wife, along with
another vet, discuss their experiences with "unexplained" diseases and
handicapped children. They also provide information about the Brotherhood of
Viet Nam Veterans efforts to get the government to provide assistance for
vets affected by Agent Orange. The program also includes a showing of the
1953 government documentary in which an A-bomb was dropped in Nevada, and
then American soldiers were marched into the blast area immediately
afterward to show that atomic warfare is "safe." Many of these men
subsequently either died of cancer or now have it. Finally, we have an
interview about the widespread covert germ and chemical warfare experiments
carried out since the 1950s by the CIA and the Army over various areas in
the U.S., particularly cities.

Recorded March, 1981
Copyright May, 1989

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* Note:
* The Alternative Information Network
* address in the video is no longer in use.
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Veterans Exposed To AO or Radiation

Katrina J. Eagle, Attorney at Law
http://www.wildhaberlaw.com/

Winning The Claim

The most common error the VA commits is denying a veteran’s claim because he (or she) asked for service-connected benefits on a presumptive basis only.  As soon as a VA adjudicator determines that a veteran’s claim does not meet the criteria for presumptive service connection (usually because the veteran has a medical condition that’s not on the list of presumptive diseases or because the veteran’s military records do not confirm in-country service in Vietnam), it quickly gets denied. 

This is wrong!!  It does not matter if the veteran limited his request to service connection on a presumptive basis only.  The VA must consider the claim on a direct service connection basis as well. ("When preparing a decision, the Rating Veterans Service Representative (RVSR) must recognize, develop, and/or decide all issues, whether expressly claimed, implied, informal, potential, mandated, or ambiguous."  VBA M21-1MR)

 As discussed at the end of this article, a thorough medical-nexus opinion (i.e., a medical opinion that states that “it is as likely as not” (More likely than not?) that the veteran’s in-service exposure to XX caused or is related to YY, and explains the rationale for the medical opinion) is crucial to the ultimate success of the veteran’s service-connection claim.

Also, as most people know, the use of dioxin and, or Agent Orange was not limited to Vietnam from 1962 to 1975.  Government records and reports documenting the use of herbicides and, or Agent Orange in many other places (e.g., Korea, Thailand, Guam, military bases in the U.S.) are being de-classified all the time.  So, if you and your doctor believe “it is as likely as not” that your current medical condition is the result of in-service exposure to herbicides and, or Agent Orange, then you should pursue a service-connection claim on a direct basis.  In addition to a medical opinion specific to your claim, be sure to include as much official documentation regarding the use of herbicides where you were stationed during your military service as you can.  And then persevere.  Know and accept that the VA will likely deny the claim the first few times; however, so long as the claim is supported by the proper evidence, the VA will eventually have no choice but to grant it.

The idea behind presumptive service connection is to relax one or more of the evidentiary requirements a veteran must show before the VA will award the sought-after benefits and, or compensation for certain diseases.  These materials will help explain the basics of a presumptive service-connection claim for medical conditions related to exposure to Agent Orange and, or radiation, as well as some tips for how to attack adverse VA decisions for these types of claims.

A.    Service-Connection Claims for Medical Conditions Related To Agent Orange (i.e. “Dioxin”) Exposure

There are only two requirements a veteran must satisfy to qualify for service-connected compensation based on Agent Orange exposure:

1.      Military Service in Vietnam During the Vietnam Era

Most veterans who served in Vietnam would never be able to prove that they were actually exposed to dioxin, the active ingredient in Agent Orange.  Recognizing this impossibility, Congress enacted legislation and the VA implemented regulations whereby a veteran’s exposure to Agent Orange is presumed so long as the veteran can show that one day of military service was spent “boots to ground” in Vietnam during the Vietnam era.  See 38 U.S.C.S. § 1116(a) and 38 C.F.R. § 3.307(a)(6)(iii) (2007).

VA regulation defines service in Vietnam as “active military, naval, or air service . . . in the Republic of Vietnam at some point during the period beginning on January 9, 1962, and ending on May 7, 1975.”  See id. This definition 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.”  See id. However, if a veteran flew in aircraft in the airspace above Vietnam without ever landing in Vietnam, then he will not have met the requirements as having served “in Vietnam” for the purposes of this regulation.  See VA Gen. Counc. Prec. 7-23 (8/12/93).

Even though the VA regulation relaxed the amount of time a veteran needed to have spent in Vietnam in order to qualify for the presumptive exposure to Agent Orange, some veterans still face considerable hurdles in proving they were in Vietnam between January of 1962 and May 1975.  This is especially true for veterans who served in neighboring countries of Vietnam but went to Vietnam for temporary duty (“TDY”), rest periods, picking up or dropping off soldiers, or brief missions.  Unfortunately, service records often do not document a veteran’s brief visit(s) in another country. 

2.      A Medical Condition Recognized By VA As Presumptively Related To Or Caused By Agent Orange

To satisfy this second requirement, a veteran needs to submit medical evidence showing that they have one of the recognized diseases (or its residuals) to a degree of 10-percent or more disabling.  See 38 C.F.R. §§ 3.307(a)(6)(ii) and 3.309(e) (2007). [Jim – can you add a hyperlink here to a VA webpage that lists the current conditions? Thx!]  Be thorough when researching medical conditions and, or diseases as medical terms sometimes change through time.  Also, take note that two medical conditions on the presumptive list – chloracne and porphyria cutanea tarda – include additional evidentiary requirements: first, these conditions must  manifest within one year of the last day the veteran served in Vietnam, and second, these conditions must be 10-percent disabling within that same one-year time period.  See id.

3.    Two Presumptive Medical Conditions Of Note

a.  Diabetes Mellitus (aka Type 2 Diabetes): A veteran diagnosed with diabetes mellitus may develop other related medical conditions.  With the proper medical documentation, these other medical conditions should be service-connected as “secondary” to diabetes mellitus.  See 38 C.F.R. § 3.310 (2007).  There is no time limit by which a secondary medical condition must manifest or by which a claim must be filed; as long as there is sufficient medical evidence to establish that it is a result of medical condition that is already service-connected, then the veteran is entitled to secondary service-connected benefits.  Thus, to be safe, the best course of action is for the veteran to review with his/her doctor all current medical conditions and ask questions to determine whether there is any relationship between that medical condition and the diabetes mellitus.

The following are just an example of medical conditions caused by, or related to diabetes mellitus:

Diabetic Nephropathy (disease of the kidneys)
Diabetic Neuropathy (disease of the peripheral nerves, seen in either upper or lower extremities (or both))
Retinopathy (disease of the eyes)
Atherosclerosis (hardening of the arteries)
Hypertension
Depression

b.  Non-Hodgkins Lymphoma (NHL): a veteran seeking service-connected compensation has two VA regulations which should help ease the claims process: 38 C.F.R. §§ 3.309(e) and 3.313 (2007).  The latter regulation, § 3.313, bases the connection of the current medical condition to service in Vietnam rather than to exposure to Agent Orange. [Jim – though it’s 3 years old, I think readers may find the VA’s Agent Orange Brief on NHL (August 2005) useful.  Can you make it a hyperlink?]  Note, however, that even the term “service in Vietnam” is more broad under § 3.313 in that the off-shore waters of Vietnam are also included.  Moreover, the language of section 3.313 states that service members who served in the waters offshore of Vietnam need not show any duty or visitation to Vietnam.  Also, effective October 23, 1995, the VA amended NHL’s rating schedule so that when NHL is noted as “active” or in a “treatment phase”, it must be rated as 100-percent disabling.  See 38 C.F.R. § 4.117, Diagnostic Code 7715 (2007).  However, whether proper or not, cases citing to section 3.313 appear to be included in the group of cases currently stayed pending the outcome of Haas. 

B.    Service-Connection Claims for Medical Conditions Related To Radiation Exposure

As the information provided below makes clear, veterans seeking service-connected benefits for medical conditions related to their in-service exposure to ionizing radiation face even more convoluted hurdles than veterans who were exposed to Agent Orange during service.  To put it bluntly, the VA has created the rules and runs the casino, such that it is virtually impossible for a veteran to succeed in any radiation case.  For veterans with radiation-related claims, the most difficult challenges are either documenting their participation in a radiation-risk activity and, or showing that they were exposed to enough radiation to have caused the disease for which they now seek service connection.  Indeed, the majority of veterans’ cases ultimately get denied because even though the VA will concede exposure, the VA will also conclude that the veteran was not exposed to enough radiation to have caused the disease for which he now seeks service-connected benefits.

That said, service connection for a condition which is claimed to be attributable to ionizing radiation exposure during service can be established in two different ways.  Stone v. Gober, 14 Vet. App. 116, 118 (2000).  First, a veteran can show current medical evidence of one of the specific cancers and some kind of evidence documenting their participation in a “qualifying radiation-risk activity.”  See 38 U.S.C.S. § 1112(c) and 38 C.F.R. § 3.309(d) (2007). (VBA M21-1MR)

To qualify as a radiation-risk activity, the veteran must establish that he participated in one of the following:

1.    Onsite participation in a test involving the atmospheric detonation of a nuclear device.

2.    The occupation of Hiroshima or Nagasaki between August 6, 1945 and July 1, 1946.

3.    Internment as POW in Japan (or service on active duty in Japan immediately following such internment) during World War II which (as determined by the Secretary) resulted in an opportunity for exposure to ionizing radiation comparable to veterans in group 2, above.

See 38 U.S.C.S. § 1112(c)(4)(B).

The second way to establish service connection is pursuant to 38 C.F.R. § 3.311(b) (2007), which provides a list of “radiogenic diseases” which will be service connected if certain conditions specified in the regulation have been met.  See Hilkert v. West, 12 Vet. App. 145, 148 (1999) (en banc). However, when trying to comply with this regulation as it pertains to the “competent scientific evidence”, a veteran quickly learns the number of pitfalls and loopholes involved, making it incredibly difficult to succeed in obtaining service-connected benefits.  The following is a summary of the process a veteran must follow in order to satisfy the scientific evidentiary criteria pursuant to § 3.311:

1.    The VA is to assess the size and nature of the radiation dose that the veteran may have received.

2.    From the information gathered by the VA, DoD provides a radiation dose estimate.

3.    The radiation dose estimate and any other relevant information is then forwarded to the VA Under Secretary for Benefits for review.

4.    The VA Under Secretary for Benefits will request an opinion from the VA Under Secretary for Health, who makes a determination as to whether “it is as likely as not the veteran’s disease resulted from exposure to radiation in service” or whether “there is no reasonable possibility, that the veteran’s disease resulted from radiation exposure in service.”

C.    Ways to Attack VA Decisions Denying Presumptive Service-Connection Claims

1.    If the veteran is unable to satisfy the criteria for presumptive service-connected benefits, go the direct service-connection route.

When a veteran seeks compensation and, or benefits for a medical condition he believes he is entitled to on a presumptive service-connected basis and it is denied, the VA has an obligation to consider the claim under a direct service-connection theory as well.  See Schroeder v. West, 212 F.3d 1265 (Fed. Cir. 2000); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d).  This applies to all claims for medical conditions presumed to be a result of exposure to Agent Orange as well as claims for exposure to ionizing radiation.

The likelihood of success of a direct service-connection claim usually hinges on a solid medical-nexus opinion, so be sure to find a medical professional who is aptly qualified in the appropriate medical field to connect all the evidence together for the VA.

2.  If unable to provide corroborating evidence that veteran set foot in Vietnam, and the veteran is credible, consider having the veteran testify under oath that he did.  See BVA decision, docket number 04-01 064 (June 7, 2004).

Gulf War Syndrome

WORK IN PROGRESS

M21-1MR  http://www.warms.vba.va.gov/admin21/m21_1/mr/part4/subptii/ch01/ch01_sece.doc

http://www1.va.gov/gulfwar/



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