In order to prevail on a claim for VA disability benefits, a veteran must be able to demonstrate that the claimed condition is connected to their service. Demonstrating this service connection element can be difficult, if not impossible, when it comes to diseases or conditions for which the cause is not always readily apparent. Beginning in the late 1980’s, Congress acknowledged that this can be particularly challenging for thousands of veterans who suffer from conditions that arise from exposure to Agent Orange and other herbicides while in service in Southeast Asia-primarily Vietnam. The result was the creation of the Agent Orange Presumptive List under 38 U.S. Code § 1116, which requires the VA to presume that conditions on the list were caused by AO exposure during service.
Following a report from the National Academy of Medicine, the VA stated that it would consider adding more conditions to the current list of 14 presumptive diseases. Among other things, the report recommends that the VA consider adding bladder cancer, hypothyroidism, hypertension, stroke and Parkinson-like symptoms without diagnosis of that particular disease. Adding any or all of these conditions to the presumptive list could potentially impact thousands of veterans.
This summer, VA Secretary David Shulkin stated that the agency would decide by November 1, 2017, whether and how to implement the report’s recommendations. When the deadline arrived yesterday, however, the Secretary punted. In a brief statement released by the Secretary’s office on the evening of November 1, the following was all that was provided:
Today, U.S. Secretary of Veterans Affairs Dr. David J. Shulkin announced that he is considering  possible new presumptive conditions that may qualify for disability compensation related to Agent Orange exposure.
“After thoroughly reviewing the National Academy of Medicine (NAM)’s latest report regarding Veterans and Agent Orange, and associated data and recommendations from the NAM Task Force, I have made a decision to further explore new presumptive conditions for service connection that may ultimately qualify for disability compensation,â€Â Secretary Shulkin said.  “I appreciate NAM’s work and the commitment and expertise of VA’s NAM Task Force, and look forward to working with the Administration on the next steps in the process.â€
The Department of Veterans Affairs will now begin work with the Administration to concurrently conduct a legal and regulatory review of these potential presumptive conditions for awarding disability compensation to eligible veterans.
Veterans and Veterans’ Service Organizations expressed concern and dismay over the perceived decision to kick the can down the road. Rick Weidman, executive director for policy and government affairs for Vietnam Veterans of America, minced no words when he stated, “We thought we were going to get a decision sometime today. Obviously we were mistaken. What they issued, to quote Sarah Huckabee Sanders, is a Nothing Burger.†Still disappointed that the prior administration did not act upon the recommendations earlier, Weidman now hopes that the Trump administration will act with greater expediency to address the issue.
This article is authored through the collaborative efforts of Travis James West and other legal professionals at West & Dunn, a law firm dedicated to providing quality legal services and business counseling to individuals and businesses, with a particular focus on assisting the veterans of the United States Military Services.
Featured image courtesy of the USAF.
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From what some friends tell me, younger Vet’s are already sick themselves (I’m friends with guys who served in Desert Sheild), and they’re getting screwed out of care too. From what I’ve seen, the VA has more then enough money, $300 mil for art installations for example, but the system has become a complete farce and there aren’t enough votes coming from the Veteran community to force politicians to legislate changes and a full overhaul. I cannot for the life of me understand why the VA isn’t held to the same standards as Medicare and Public Aid as well as the federal and state laws and standards that private healthcare and insurance have to meet. I’m truly sorry to hear about your Dad too.
There’s been a petition to undo a law from around 1991 that excluded Blue Water Veterans from the Agent Orange roles and covered care, recently Shulkin pledged to help. I wonder if this can kicking is a political repayment for support of the 2 major victories that Shulkin got passed already. This is definitely not an area where they should be playing politics, people are sick and dying because of toxic exposure that the government put them through.
Man, this is just wack. My old man died from exposure to Agent Orange (Hodgkin’s Lymphoma). When he died Hodgkin’s Lymphoma wasn’t on the ‘list’. He couldn’t get treatment at the VA in time and was told he was on a waiting list. Then when I called the VA to let them know he had passed and could be taken off the waiting list (thinking it would clear a spot up for someone else), the VA said “we have no record of Mr. B. coming here for anything in the last two years”… He landed on the ‘off the books list’. Now we have a whole new group of men and women that are going to get jacked by this system if something isn’t done to correct things. I am convinced the system could be unbroken if they wanted it to be. They are just more interested in limiting liability, which is also wack because that is what the money cutout is for… to fix and take care of our men and women. Not for a giant slush fund.
Seems like BVA Attorneys would be frustrated by the punt as well. One of the effective means of reducing the backlog of appeals is being able to write decisions not remands. Many diseases which have not yet been codified under the presumptive classification are backed up By scientific studies that indicate at least some medical relationship, which is often enough to create the basis for remanding for addendum medical opinions or new examinations. While this can be beneficial for the veteran it usually serves as keeping a claim continuously kicked back and forth between BVA and the regional offices. A lot of opinions provided about diseases with some medical evidence of connection to herbicide exposure are not sufficient for BVA adjudicators standards. This Causes further remands for clarification or CAVC grants of joint motions for remand. Expanding the list of presumptive diseases will help contribute to appeals backlog reduction and get these Veterans the benefits they deserve.
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…Deny, deny, deny. Study, study, study. Delay, delay, delay. All in service of “Waiting For An Army To Die…”
In the name of God… half a century has passed since the blight was first inflicted upon the lads. Any justice that any veteran ever gets from his government is more a matter of chance than reasoned discharge of duty and obligation. “Atomic” veterans could have explained what was to come… And those with Gulf War Syndrome and future maladies can expect exactly the same. Stewards of the Republic have proven unworthy of the service of those who stepped forward… and it may be that others may take to heart this ugly lesson.
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…The Ancient Chinese Empires didn’t have a fancy program for disabled veterans… but they scrupulously honored it. Lose a leg in battle? The senior officer present will give you a document in the name of the Emperor… a license to beg. When city fathers have guards or soldiers “thin out the beggars” you would be guaranteed safety from the culling process.
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-Yankee Papa-