AGENT ORANGE AND VA
DISABILITY COMPENSATION
What is disability compensation and
who is eligible for this benefit?
Veterans who are disabled by injury or disease incurred or aggravated
during active service in the line of duty during wartime or peacetime
service and discharged or separated under other than dishonorable conditions
are eligible for monthly payments from the Department of Veterans Affairs
(VA).
The amount of these payments, called disability compensation, is based
on the degree of disability. For example, a veteran with a 30 percent
service-connected disability would receive more money than a veteran
with a 10 or 20 percent disability. A veteran who is totally disabled
would receive substantially more than a veteran with a lesser disability.
Does exposure to Agent Orange alone qualify Vietnam veterans for
disability compensation?
No. Mere exposure to Agent Orange and other chemicals used in military
service does not automatically qualify Vietnam veterans for compensation.
As mentioned above, payments are based on disabilities. Many Vietnam
veterans who were exposed to Agent Orange have no serious medical problems.
Some Vietnam veterans have disabilities clearly unrelated to their military
service. For example, a Vietnam veteran may have been in an automobile
accident l0 or 15 years after leaving military service.
Under the law, disability compensation can only be approved for conditions
incurred in or aggravated during military service.
The number of diseases that VA has recognized as associated with, but
not necessarily caused by, Agent Orange exposure has expanded considerably
during the 1990's. The following conditions are now recognized as service-connected
for Vietnam veterans based on exposure to Agent Orange or other herbicides:
chloracne (a skin disorder), porphyria cutanea tarda, acute or subacute
peripheral neuropathy (a nerve disorder), and numerous cancers [non-Hodgkin's
lymphoma, soft tissue sarcoma, Hodgkin's disease, multiple myeloma,
prostate cancer, and respiratory cancers (including cancers of the lung,
larynx, trachea, and bronchus)].
If a veteran has a disability that he or she believes was caused
by Agent Orange exposure or some other aspect of military service, what
should he or she do?
To receive disability compensation, the veteran must file an application
for such benefits. For information or assistance in applying, the veteran
can write, call, or visit a Veterans Benefits Counselor at the nearest
VA regional office or VA medical center, or a local veterans service
organization representative.
What should a veteran do if his or her claim for disability compensation
is denied by VA?
While VA provides billions of dollars to veterans and their survivors
in disability compensation each year, VA does not approve every claim.
When a claim is denied, VA provides the applicant with the reason for
this action as well as detailed information-regarding appeal rights.
There was a great deal of publicity in May 1989 about a court decision
and VA's response regarding VA Agent Orange disability compensation
regulations. What was that all about?
In early May 1989, the U.S. District Court for the Northern District
of California in Nehmer, et al. v. U.S. Veterans Administration, et.
al. invalidated a portion of VA regulations concerning the handling
of Agent Orange disability compensation claims.
The Court concluded that in the process of deciding which diseases would
be recognized as being caused by Agent Orange, VA used a too demanding
standard. Rather than using the cause-and-effect standard, the Court
indicated that VA should have recognized any disease for which the scientific
evidence shows there is a "significant statistical association"
with exposure to dioxin.
The Court also ruled that, in determining whether particular diseases
should be recognized, VA should have applied the "reasonable doubt"
standard used when weighing evidence in individual claims. This long
standing VA rule of claims adjudication provides that if the weight
of evidence tending to support a claim is in approximate balance with
that tending to oppose it, the benefit of doubt goes to the claimant
(that is, the veteran or dependent).
Shortly after the Court ruling was issued, Secretary of Veterans Affairs
Derwinski announced that VA would not seek appeal of the decision
and ordered a prompt revision of the regulations. This involved establishing
criteria for determining when a significant statistical association
exists and review of scientific and medical studies using the new criteria.
The proposed regulation changes establishing criteria were published
in the Federal Register for public comment. (See 54 Fed. Reg. 30099,
July l8, 1989). The proposed changes were modified in response to comments
received. In October 1989, the final regulation changes were published
in the Federal Register. (See 54 Fed. Reg. 40389, October 2, 1989).
Proposed and final changes concerning determinations as to particular
diseases will also be published.
What should individuals who have filed a claim do in response to
this decision?
If a veteran or his or her survivor filed a claim with VA for disability
compensation or dependency and indemnity compensation (DIC) based on
Agent Orange or dioxin exposure and VA has not yet made a decision,
no action is required by the person who filed the claim. It will be
evaluated based on new VA regulations. If an Agent Orange/dioxin claim,
filed after September 25, 1985, was denied by VA, no action is required.
It will be re-evaluated based on the new VA regulations.
In either situation, claimants may submit additional supportive evidence.
VA is not required to reopen claims filed before September 26, 1985.
Individuals who filed claims prior to that date may wish to file new
claims. The earlier a claim is filed, the more money the claimant will
receive if the claim is approved.
In 1990, Secretary Derwinski made two important announcements regarding
disability compensation and Vietnam veterans. Please explain.
On March 29, 1990, Secretary Derwinski announced that VA would recognize
non-Hodgkin's lymphoma for service connection based on service in Vietnam.
On May 18, 1990, Secretary Derwinski announced that VA would recognize
soft tissue sarcoma for service connection based on exposure to dioxin-containing
herbicides.
The non-Hodgkin's lymphoma decision followed release of results of the
Centers for Disease Control Selected Cancers Study which suggested that
Vietnam veterans are at increased risk of developing non-Hodgkin's lymphoma.
For additional information regarding non-Hodgkin's lymphoma, see Agent
Orange Brief, D3. For additional information regarding the Selected
Cancers Study, see Agent Orange Brief, C3.
The decision about soft tissue sarcoma was made after the Veterans'
Advisory Committee on Environmental Hazards (a group established by
law to provide advice to the Secretary of Veterans Affairs) concluded
that it is as likely as not that there is a significant statistical
association between exposure to a dioxin-containing herbicide and the
development of soft tissue sarcoma. For additional information regarding
soft tissue sarcomas, see Agent Orange Brief,
D4.
In June 1990, the proposed regulations regarding the non-Hodgkin's lymphoma
decision were published in the Federal Register for public comment.
(See 55 Fed. Reg. 25339, June 21, 1990). In October 1990, the final
implementing regulations were published in the Federal Register. (See
55 Fed. Reg. 43123, October 26, 1990).
In February 1991, proposed regulations regarding the soft tissue sarcoma
decision were published in the Federal Register for public comment.
(See 56 Fed. Reg. 7632, February 25, 1991). In October 1991, the final
regulations were published in the Federal Register. (See 56 Fed. Reg.
51651, October 15, 1991).
Were there additional compensation policy changes announced in 1991?
Yes. In March 1991, VA published in the Federal Register proposed regulations
to extend, from three to nine months, the period during which chloracne
must appear following exposure to a dioxin-containing herbicide to establish
service-connection. For information regarding chloracne, see Agent
Orange Brief, D2. The same proposal declared that there is no
significant statistical association between exposure to a dioxin-containing
herbicide and porphyria cutanea tarda. (See 56 Fed. Reg.11536,
March 19, 1991).
This proposal was based on a recommendation of the Veterans' Advisory
Committee on Environmental Hazards. In October 1991, these regulations
were finalized and published in the Federal Register. (See 56 Fed. Reg.
52473, October 21, 1991).
On July 1, 1991, Secretary Derwinski announced that VA would propose
rules granting service- connection disability status to certain Vietnam
veterans with peripheral neuropathy, a nervous system condition that
causes numbness and tingling.
How did the Agent Orange Act of 1991 affect disability compensation?
Among its key features, Public Law 102-4, the Agent Orange Act of 1991,
codified (established in law), with minor modification, the presumptions
of service connection for certain diseases associated with herbicide
exposure or military service in Vietnam that VA had recently developed.
Specifically, a Vietnam veteran disabled by non-Hodgkin's lymphomas,
soft tissue sarcomas (with some exceptions), or chloracne (within one
year of leaving Vietnam) is presumed to have incurred the disease while
on active duty.
In July 1992, a proposed rule implementing the presumptions established
by this statute was published in the Federal Register for public comment.
(See 57 Fed. Reg. 30707, July 10, 1992). In May 1993, the rule was finalized
and published in the Federal Register. (See 58 Fed. Reg. 29107, May
19, 1993).
Public Law 102-4 also established a mechanism to add conditions to those
considered to be service connected. The legislation was signed by President
Bush on February 6, 1991.
What else happened in 1992 with regard to disability compensation?
In January 1992, proposed regulations regarding the peripheral neuropathy
decision, based on a recommendation of the Advisory Committee, were
published in the Federal Register for public comment. (See 57 Fed. Reg.
2236, January 21, 1992). These regulations were not finalized because
of the findings of the National Academy of Sciences. (See below). For
additional information regarding peripheral neuropathy, see Agent
Orange Brief, D5.
In 1993, the National Academy of Sciences released the initial findings
of its review of scientific evidence of the health effects of herbicides
used in Vietnam. What was the impact on VA compensation policy?
On July 27, 1993 (the day the NAS report, Veterans and Agent
Orange: Health Effects of Herbicides Used in Vietnam, was released),
Secretary Brown announced that VA would recognize Hodgkin's disease
and porphyria cutarnea tarda for service connection. On September 27,
1993, after further review of the NAS report, Secretary Brown
announced that multiple myeloma and respiratory cancers would also be
added to the list of conditions presumed to be service connected
based on exposure to herbicides which contained dioxin. Peripheral neuropathy
was not recognized as service connected because Secretary Brown concluded
that a presumption is not warranted based on existing scientific evidence.
In making this determination, he gave great weight to the NAS report
that indicated that there was inadequate or insufficient evidence to
make a determination about the association between herbicides used in
Vietnam and the development of this condition. In view of the earlier
decision on peripheral neuropathy, Secretary Brown asked the NAS to
take a close look at the evidence on this matter during its next review.
The regulations regarding Hodgkin's disease and porphyria cutanea tarda
(PCT) were published in the Federal Register as proposed rules in September
1993 and in final form in February 1994. (See 58 Fed. Reg. 50528, September
28, 1993, and 59 Fed. Reg. 5106, February 3, 1994). For additional information
regarding Hodgkin's disease, see Agent Orange Brief, D6. For additional information
regarding porphyria cutanea tarda, see Agent
Orange Brief, D7.
The regulations regarding multiple myeloma and respiratory cancers were
published in the Federal Register as proposed rules in February 1994
and in final in June 1994. (See 59 Fed. Reg. 5161, February 3, 1994,
and 59 Fed. Reg. 29723, June 9, 1994). For additional information regarding
multiple myeloma, see Agent Orange Brief,
D8. For additional information regarding respiratory cancers,
see Agent Orange Brief, D9.
In January 1994, VA published a notice in the Federal Register that
Secretary Brown has determined that a presumption of service connection
based on exposure to herbicides used in Vietnam is not warranted for
the following conditions: prostate cancer, peripheral neuropathy,
hepatobiliary cancers, bone cancers, female reproductive cancers, renal
cancers, testicular cancer, leukemia, abnormal sperm parameters and
infertility, cognitive and neuropsychiatric disorders, motor/coordination
dysfunction, metabolic and digestive disorders, immune system disorders,
circulatory disorders, respiratory disorders (other than lung cancer),
nasal/nasopharyngeal cancer, skin cancer, gastrointestinal tumors, bladder
cancer, brain tumors, and any other condition for which the Secretary
has not specifically determined a presumption of service connection
is warranted. (See 59 Fed. Reg. 341, January 4, 1994).
How did the Veterans' Benefits Improvements Act of 1994 affect the
VA disability compensation program for Vietnam veterans exposed to Agent
Orange?
Like Public Law 102-4, the Agent Orange Act of 1991, Public Law 103-446,
the Veterans' Benefits Improvements Act of 1994; codified (established
in law) presumptions of service connection for certain diseases associated
with herbicide exposure in Vietnam that VA had recognized administratively.
Specifically, Public Law 103-446 codified presumptive service connection
for a Vietnam veteran disabled by (1) Hodgkin's disease manifested to
a degree of disability of 10 percent or more; (2) PCT manifested to
a degree of 10 percent or more within a year of military service in
Vietnam; (3) respiratory cancers manifested to a degree of 10 percent
or more within 30 years of military in Vietnam; and (4) multiple myeloma
manifested to a degree of 10 percent or more.
What happened in 1996 as a result of the second NAS report? How were
compensation regulations affected?
After careful review of the NAS report, Veterans and Agent Orange:
Update 1996, released March 14, 1996, Secretary Brown concluded
that acute and subacute transient peripheral neuropathy (if manifested
within one year of exposure to an herbicide in Vietnam and resolved
within two years of onset) and prostate cancer should be added to the
list of conditions presumed to be service connected based on exposure
to herbicides which contained dioxin. He also concluded that an appropriate
legislation remedy should be enacted on behalf of Vietnam veterans'
children who have spina bifida. On May 28, 1996, President Clinton and
Secretary Brown announced these decisions at the White House.
The regulations regarding acute and subacute peripheral neuropathy and
prostate cancer were published in the Federal Register as proposed rules
in August 1996 and in final in November 1996. (See 61 Fed. Reg. 41368,
August 8, 1996, and 61 Fed. Reg. 57587, November 7, 1996). For additional
information regarding peripheral neuropathy, see Agent Orange Brief, D5. For additional information
regarding prostate cancer, see Agent Orange
Brief, D10.
In August 1996, VA published a notice in the Federal Register that Secretary
Brown has determined that a presumption of service connection based
on exposure to herbicides used in Vietnam is not warranted for the following
conditions: hepatobiliary cancers, nasal/nasopharyngeal cancer, bone
cancer, female reproductive cancers, breast cancer, renal cancer, testicular
cancer, leukemia, abnormal sperm parameters and infertility, cognitive
and neuropsychiatric disorders, motor/coordination dysfunction, chronic
peripheral nervous system disorders, metabolic and digestive disorders,
immune system disorders, circulatory disorders, respiratory disorders
(other than certain respiratory cancers), skin cancer, gastrointestinal
tumors, bladder cancer, brain tumors, and any other condition for which
the Secretary has not specifically determined a presumption of service
connection is warranted. (See 61 Fed. Reg. 41442, August 8, 1996).
On July 25, 1996, Secretary Brown sent draft legislation to Congress
that would provide for health care, vocational training, and a monthly
allowance (similar to disability compensation) for Vietnam veterans'
children who have spina bifida, a neural tube birth defect. The legislation
was introduced in the Senate and House of Representatives on July 31,
1996. In September, Congress approved a similar version of the spina
bifida legislation with an effective date of October l, 1997, as part
of the VA FY1997 appropriations bill. It became Public Law 104-204 on
September 26, 1996, when it was signed by President Clinton.
If a Vietnam veteran receives an Agent Orange Registry examination,
does that automatically make him or her eligible for disability compensation?
No. Veterans who wish to be considered for disability compensation must
file a claim for that benefit. Necessary forms and relevant information
about the claims' process can be obtained from a Veterans Benefits Counselor
at the nearest VA regional office or medical center. Many Agent Orange
Registry participants have no medical problems whatsoever and never
file for compensation.
What is the relationship between the VA disability compensation program
and the Agent Orange Veteran Payment Program?
There is no connection. The Agent Orange Veteran Payment Program was
established as a result of settlement of a class action lawsuit brought
by Vietnam veterans and their families against the manufacturers of
Agent Orange. The application forms, claims processing, eligibility
criteria, etc., of these two programs are completely different. For
additional information about the class action lawsuit and benefits from
its settlement, see Agent Orange Brief, A2,
call toll-free 1-800-225-4712, and/or write to the Agent Orange Veteran
Payment Program, P.O. Box 110, Hartford, Connecticut 06104.
Where can a veteran get additional information about the VA disability
compensation program?
Additional information regarding this program is available from Veterans
Benefits Counselors at VA regional offices and medical centers throughout
the Nation. The telephone numbers can be found in local telephone directories
under the "U.S. Government" listings. In most areas, callers
can use the following toll-free number: 1-800-827-1000. Veterans service
organization representatives also have considerable information on this
subject.
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Agent
Orange Brief
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