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articles - agent orange
INTRODUCTION
These are the changes that have occurred since March 2000, when this Guide
was published. We have identified each page on which a change in law has
occurred.
General Information for Military Retirees
Effective June 1, 2003, some disabled retirees will no longer have their
military retired pay offset by VA compensation. This program is run by the
Department of Defense, and eligible veterans must apply to DOD to be
included.
The relevance to Agent Orange disabled veterans is that if their
disability is rated as 60% or more and they have 20 years of service for
retired pay purposes, they are eligible for the so-called Combat-Related
Special Compensation. Members apply to their service branch using DD Form
2860.
1. Table 1 on Page 5; (see also 1st column, page 11):
As the right-hand column of Table 1 indicates, the VA used to require that
to qualify for disability benefits for cancer of the bronchus, cancer of
the larynx, lung cancer, or cancer of the trachea, the symptoms had to
have appeared within 30 years of the last day of service in Vietnam.
Because of Public Law 107-103, this is no longer true. For claims for
these cancers that were pending on January 1, 2002, and for new claims for
these cancers that are filed after January 1, 2002, there is no time
requirement. The veteran or his survivor now qualify no matter when the
cancer first appeared.
A Vietnam veteran or survivor whose claim was denied in the past due to
the 30-year rule must reapply. In most cases, if the VA received a new
claim based on one of these cancers before January 1, 2003, and granted
the new claim, benefits should have been paid retroactive only to January
1, 2002, but not earlier. It is unclear if the VA will grant a new claim
for service connected burial benefits paid on behalf of a veteran who died
prior to January 1, 2002, but whose cancer did not manifest within 30
years of service in Vietnam.
2. Table 1 on Page 5; add Chronic Lymphocytic Leukemia (CLL):
On March 26, 2003, the VA promulgated a proposed regulation adding CLL to
the list of diseases recognized by the VA as connected to Agent Orange.
This disease should be added to the left-hand column of Table 1. There is
no length of time required for this disease. Therefore, the veteran or
survivor qualifies no mater when this disease first appears.
CLL is somewhat related to, and confused with, non-hodgkins lymphoma
(another presumptive Agent Orange disease in Table 1). CLL is one of four
forms of leukemia and involves tumors of the blood. VA regulations, when
published, will likely provide a definite medical description of CLL that
it will recognize as a compensable disease.
The VA will not start paying benefits until their rule is finalized – in
the fall of 2003. The VA has taken the position that the Nehmer rule
(discussed at pages 32-33 and at item 7 below), regarding retroactive
payments to those who filed a claim for CLL in the past, does not apply to
CLL. NVLSP plans to challenge this position. Any veteran or survivor who
filed a claim based on CLL in the past should ask that the effective date
of their claim be on the date when the first filed claim was received by
the VA.
3. Table 1 on Page 6; Add Type 2 diabetes:
On May 8, 2001, the VA amended its Agent Orange rules to add Type 2
diabetes to the list of diseases recognized by VA as connected to Agent
Orange. This disease (also known as Type 2 diabetes mellitus,
non-insulin-dependent diabetes mellitus, and adult-onset diabetes) should
be added to the left-hand column of Table 1. There is no length of time
requirement for this disease. Therefore, the veteran qualifies no matter
when this disease first appears. It is important to have a diagnosis of
Type 2 diabetes and not just “diabetes” or Type 1 diabetes.
A Vietnam veteran with Type 2 diabetes, or a surviving family member of a
Vietnam veteran who died at least in part due to Type 2 diabetes, should
file an informal claim with the VA stating that the claimant is seeking
disability benefits (or, for survivors, death benefits) because the
disability (or death) was due to Type 2 diabetes which resulted from Agent
Orange exposure. An informal claim need merely be a letter. If your claim
is granted, and the VA had denied a diabetes claim filed by you in the
past, then the effective date of the award of benefits (that is, the date
back to which the VA will pay you retroactive benefits) should be the date
the VA received your first claim -- as long as that first claim was filed
after, or pending on, September 25, 1985.
NVLSP filed and won a lawsuit (Liesegang v. Secretary) challenging the
amount of retroactive benefits the VA was paying to Vietnam veterans whose
first claim based on diabetes was received by the VA between May 8, 2001
and July 9, 2002. The VA was paying these veterans disability benefits
effective only July 9, 2001. The VA is currently following the court
decision (setting the effective date at May 8, 2001) for new claims but
has recently agreed to correct earlier erroneous decisions.
Those affected are those Vietnam veterans or their survivors who first
filed a claim for diabetes or death benefits related to diabetes between
May 8, 2001 and July 9, 2002. Those who first filed between May 8, 2002
and July 8, 2002 benefit due to the general one year retroactive rule
applied to “liberalizing regulations” such as the one in question. Those
who filed earlier than May 8, 2001 are affected by the Nehmer case
discussed at pages 32-33.
If you were affected by the VA’s old rule, you should write the VA and ask
them to reopen your claim because you believe you deserve an effective
date before July 9, 2001 as a result of the Liesegang case in the Federal
Circuit Court of Appeals.
The VA decided not to appeal this decision and the court has ordered the
VA to correct erroneous decisions made under the invalidated rule. If
there are any significant developments, details will be posted on NVLSP's
website.
4. Table 1 on page 6; first footnote on page 9; and page 13, right
column; Children of female Vietnam veterans born with birth defects:
On page 6, Table 1 lists children born with spina bifida to a male or
female Vietnam veteran. As the guide explains, these children qualify for
VA benefits. As a result of a law passed in 2001 (Public Law 106-419),
Table 1 has been expanded to include children born with other birth
defects, as long as the mother is a Vietnam veteran. That law gave the VA
authority to pay benefits to children of female Vietnam veterans born with
birth defects. Congress left it to the VA to decide which birth defects
will qualify for benefits. The VA issued final rules on July 31, 2002,
describing which birth defects qualify for benefits under this law. Any
child of a female Vietnam veteran with any birth defects should file a
claim for benefits, as the guidelines on which defects included are not
clear.
5. Table 2 on page 9; and text at pages 7-8:
Table 2 on page 9 lists diseases that the VA does not yet recognize as
being connected to Agent Orange, but that have the best change of being
recognized in the future. Since Type 2 diabetes mellitus should now be
added to Table 1 because it has now been recognized by the VA as connected
to Agent Orange, diabetes mellitus should be removed from Table 2. Since
CLL will soon be added to Table 1, the following should be added after
leukemia “(except chronic lymphocytic leukemia)”.
Pages 7-8 provide advice on how best to support a claim based on a disease
that is listed on Table 2. While it still remains difficult to win a claim
based on a Table 2 disease, Congress recently amended the law to make it a
little easier. Public Law 107-103 provides that the VA must presume that
all veterans who served in Vietnam during the Vietnam Era were exposed to
herbicides like Agent Orange. Therefore, the advice on page 7 to submit
evidence showing that you were exposed to Agent Orange is no longer
necessary to support a claim based on a Table 2 disease. The other
evidence discussed on page 7 is still necessary.
6. Page 19; Vietnam Veterans of America:
Their new address is 8605 Cameron Street, Suite 400, Silver Spring, MD
20910.
7. Pages 32-33; Retroactive Benefits for Agent Orange-Related Disease:
Page 33 discusses three cases in which NVLSP has challenged the VA’s
failure to pay the appropriate amount of retroactive benefits to Vietnam
veterans or their survivors who have won a claim based on an Agent
Orange-related disease listed in Table 1 on pages 5-6. The second case (Nehmer)
mentioned involves claims based on prostate cancer. On December 12, 2000,
the U.S. District Court for the Northern District of California ruled in
that lawsuit that the VA had unlawfully denied retroactive compensation to
over 1,200 Vietnam veterans and their survivors who had won claims based
on prostate cancer. The VA then appealed this decision. On April 1, 2002,
the U.S. Court of Appeals for the Ninth Circuit ruled against the VA and
affirmed the District Court’s decision.
These decisions affect more than just these 1,200 prostate cancer
claimants. They affect that amount of retroactive benefits the VA is
required to pay for most claims based on a disease listed on Table 1 on
pages 5-6 of the guide – including type 2 diabetes. The rule the VA is
required to follow is that it must pay benefits retroactive to the date
the first claim for a Table 1 disease was received by the VA – as long as
that first claim was filed after, or pending on, September 25, 1985. The
settlement in this case also applies to claims for service connected
burial and death benefits.
The Nehmer settlement also defines a claim for the Agent Orange-related
disease to include a claim for other service connected conditions when the
VA rated the now-Agent Orange-related condition as non-service connected
(“NSC”). For example, a claim for service connection for a bad back that
notes non-service connected lung cancer is considered to be the first
claim for lung cancer for purposes of setting the payment date of a
reopened claim. This very important rule is not known by many VA
adjudicators.
If you know of any Vietnam veteran or surviving family member of a Vietnam
veteran who may be owed additional compensation because the VA did not pay
the claimant the amount of compensation required by these rules, please
contact NVLSP in writing (2001 S Street, NW, Suite 610, Washington, DC
20009-1125) or by e-mail at NVLSP.
See the discussion at item 3 above concerning the Liesegang case affecting
diabetes claims first filed between May 8, 2001 and July 8, 2002.
8. Page 36-37; Compensation from the Chemical Companies That
Manufactured Agent Orange:
Pages 36-37 describe the 1984 settlement of the class action lawsuit
brought against the chemical company manufacturers of Agent Orange. We
mentioned on page 36 that final decisions had not yet been issued in
several lawsuits filed on behalf of veterans who did not develop diseases
allegedly due to Agent Orange until after disbursement of all the
settlement monies.
In November 2001, the U.S. Court of Appeals for the Second Circuit ruled
that two Vietnam veterans who first became ill after 1994 (that is, after
the settlement funds had been fully disbursed) were not bound by the 1984
settlement and therefore these two Vietnam veterans could sue the chemical
companies who manufactured Agent Orange for damages. This decision did not
address whether a lawsuit against the manufacturers filed by a Vietnam
veteran who first became ill after 1994 would ultimately be successful.
The Supreme Court upheld the Court of Appeals’ decision in 2003.
Interested persons should contact counsel for the two Vietnam veterans:
Gerson Smoger, Esq.
Smoger Law Firm
1-888-405-LAWS
Smoger Law Firm
9. Page 41; The 2000 Report of the National Academy of Sciences:
The National Academy of Sciences released its Veterans and Agent Orange
Update 2000 on April 19, 2001. The National Academy produces updates of
its studies of the literature and research concerning dioxin (a by-product
of Agent Orange) every two years pursuant to the Agent Orange Act of 1991.
The text of the 2000 report is at The National Academy of Sciences.
Among other things, the report found that there is a sufficient scientific
link between a male parent's serving in Vietnam and Cambodia and the
development of "acute myelogenous leukemia" (AML) in their offspring. AML
is a rare and often fatal early childhood disease. The VA first announced
that it would ask the Congress for legislative authority to provide
benefits to these children with AML, just as it did to gain authority to
provide benefits for children of Vietnam veterans born with spina bifida
(see page 13 of the Self Help Guide). However, on July 16, 2001, Secretary
of Veterans Affairs Anthony Principi announced that the Australian
researchers who conducted the AML study relied upon by the National
Academy discovered that their statistics were flawed. Therefore, Secretary
Principi asked the National Academy to revisit the AML finding and report
again in 2002.
Congress amended the Agent Orange Act of 1991 to extend until 2014 the
VA’s authority to contract with the National Academy for additional
reports on the scientific studies concerning Agent Orange. Congress also
amended the Agent Orange Act of 1991 to extend until 2015 the requirement
that the VA review each such National Academy report and consider whether
to recognize additional diseases as related to Agent Orange.
10. Page 41; The 2002 Report of the National Academy of Sciences:
This report was issued on January 23, 2003. The report reaffirmed all of
its previous findings leading to the addition of presumptive diseases to
VA’s Agent Orange list (Table 1, pp 5-6), with two exceptions. The finding
a sufficient link to AML in children of male Vietnam veterans was found
not to be accurate. The report did find that new scientific studies
indicates that one type of leukemia – chronic lymphocytic leukemia (CLL) –
has “sufficient evidence of an association” with exposure to herbicides.
The report urged that more research be conducted, particularly in the area
of neurological disorders among Vietnam veterans.
11. Page 46; Veterans Benefits Manual:
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