Veterans Benefits – Vietnam Veterans’ Presumptive Exposure to Agent Orange
Often, veterans tell me of their frustrating experiences with VA trying to prove to the VA that Agent Orange exposure caused their medical conditions. Whenever veterans have frustrations with trying to prove Agent Orange exposure, there are at least two important questions to ask:
“Why is the VA making you prove you actually came into contact with Agent Orange?”; and
“Why is the VA making you prove your disease was not caused by something other than Agent Orange?”
These question are important because VA has special rules regarding exposure to Agent Orange. These rules allow certain veterans to avoid the difficulties associated with proving exposure to Agent Orange. The special rules are particularly important now to veterans who are applying for service-connection for cancers and other conditions which were caused by exposure to Agent Orange fifty or more years ago.
What are these special Agent Orange rules?
The special Agent Orange rules create two different legal presumptions. The first presumption is that certain veterans are presumed to have been exposed to Agent Orange. The second presumption is that Agent Orange exposure is the cause of certain medical conditions that a veterans develops.
The first question above – “Why is the VA making you prove you actually came into contact with Agent Orange?” – goes to the first presumption. If you are a veterans presumed to have been exposed to Agent Orange based on where and when you served, then you do not need to prove that you were actually exposed to Agent Orange. You have a legal presumption that you were exposed to Agent Orange.
The second question – “Why is the VA making you prove your disease was not caused by something other than Agent Orange?” goes to the second presumption. If you were exposed to Agent Orange and develop certain conditions that are presumed to have been caused by Agent Orange exposure, VA should not make you prove that your condition was caused by that exposure. It should be presumed by VA.
Who is presumed to have been exposed to Agent Orange?
In Agent Orange claims, “presumptive exposure” simply means that VA’s own regulations require the VA to treat all veterans who served in Vietnam the same. VA must presume all Vietnam veterans were exposed to Agent Orange if they served in Vietnam sometime between January 9, 1962 and May 7, 1975. This means the VA does not need to determine whether the veteran was actually exposed or came into contact with Agent Orange during his service.
Also, it does not matter how long the veteran served in Vietnam – one day or one year is treated the same. The VA is required to assume that all Vietnam veterans were exposed to Agent Orange. It does not need to look into the specific facts of each veteran’s service there.
That is important because it is usually pretty easy to know whether or not someone served in Vietnam. Veterans find it difficult to prove the type and amount of their chemical exposure during service.
Those issues would be hard for the veteran to establish and hard for the VA to decide. Because of that, VA adopted regulations that streamlined Agent Orange claims to make them less burdensome for veterans and faster for the VA to process.
Are Vietnam veterans with “boots on the ground” in Vietnam the only veterans who are presumed to have been exposed to Agent Orange?
No. The list of veterans who are presumed to have been exposed to Agent Orange has changed over time. It originally was primarily limited to “boots on the ground” Vietnam veterans. However, it has been expanded to include many veterans who served on ships near Vietnam or on inland waterways as well as in other countries from 1962 to 1976.
The changes VA has made over time regarding which veterans qualify for the presumption makes it difficult for veterans to receive all the benefits they should. Many veterans may have previously applied for service-connection for a disability caused by Agent Orange exposure and been denied because they could not take advantage of the presumption at the time.
When VA expands the presumption so that it covers them, do they get benefits back to when they originally applied or do they have to reapply and only get benefits from their new application date? This can make a humongous difference in the amount of benefits these veterans receive because many of them have had these conditions for years or even decades.
What Medical Conditions are presumed to be caused by Agent Orange?
However, even after a veteran establishes exposure to Agent Orange during service, the veteran must still establish a nexus between the exposure and the veteran’s disability. This means that the veteran must show that Agent Orange caused the veteran’s particular diseases or medical conditions.
Fortunately, a similar presumption applies here. A “presumptive disease” is one VA must presume was caused by Agent Orange exposure. There are several presumptive diseases that affect millions of veterans. These diseases include prostate cancer, lung cancer, heart disease, Parkinson’s disease, and Type 2 Diabetes, among others.
Also, the list of presumptive disease due to Agent Orange exposure has been expanded over time. In 2022, the PACT Act expanded the list of diseases presumed to have been caused by Agent Orange exposure. Two conditions that were added to the list under the PACT Act are hypertension and monoclonal gammopathy of undetermined significance (MGUS).
Can VA defeat the Agent Orange presumptions?
Unlike the presumption for Agent Orange exposure, the presumption that Agent Orange caused a veteran’s disease is a little more complicated. VA can defeat it in several ways.
If the VA has evidence that the disease was not caused by Agent Orange but is instead the result of some other factor, the VA can still deny service-connection for the disease. An example would be medical records suggesting that the veteran’s Type 2 diabetes was caused by steroids prescribed for a non-service-connected medical condition. However, it is important to understand that this does not mean that the veteran has the burden of proving there is no other cause. It merely means that if evidence of another cause is submitted or obtained by the VA, then the VA can consider it and may use it to rebut the presumption that the veteran’s disease was caused by Agent Orange.
If the disease is one of the covered cancers, the VA may still deny the claim if they determine that the listed cancer (lung cancer, for example) developed after a non-covered cancer elsewhere in the body spread to the lungs.
Because VA can rebut the Agent Orange presumptions, you need to have proper documentation from your doctor. Having this documentation will reduce the possibility of having VA wrongfully deny your claim.
Travis Studdard is an attorney who focuses on representing veterans in VA disability compensation claims. He regularly writes about issues that are important to veterans and their families.
You can subscribe to his Veterans Disability channel on YouTube.
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