Two veterans recently told me of their frustrating experiences in trying to prove to the VA that their medical conditions were caused by exposure to Agent Orange while in Vietnam. My questions to them were, “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?” If the VA is requiring either of these to establish certain service-connected disabilities, they may not be following their own rules. This blog post is intended to make you better informed about “presumptive exposure” to Agent Orange and “presumptive diseases” associated with that exposure so you will know what is or is not required to establish service-connection for a Vietnam veteran. At the outset, it is also important to note that it is not only Vietnam veterans who may be eligible to receive benefits for Agent Orange exposure. Certain Korean War veterans and “Blue Water” veterans may also have Agent Orange claims.
In Agent Orange claims, “presumptive exposure” simply means that the Department of Veterans Affairs’ own regulations require the VA to treat all veterans who served in Vietnam the same and assume they were exposed to Agent Orange. If a veteran served in Vietnam sometime between January 9, 1962 and May 7, 1975, 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 without looking into the specific facts of each veteran’s service there. That is important, especially 40 years after the fact, because it is much easier to prove simply whether or not someone served in Vietnam instead of proving what chemicals he was exposed to and the amount of exposure. Those issues would be hard for the veteran to establish and hard for the VA to decide, so regulations were adopted that streamlined Agent Orange claims to make them less burdensome for veterans and faster for the VA to process.
However, even after a veteran establishes he served in Vietnam, there is still the issue of whether Agent Orange caused the veteran’s particular disease or medical conditions. Fortunately, a similar legal presumption applies here as well. A “presumptive disease” is one that the VA is required to assume was caused by Agent Orange. There are several presumptive diseases that affect millions of veterans, including prostate cancer, lung cancer, heart disease, Parkinson’s disease, and Type 2 Diabetes. For a complete list of all Agent Orange presumptive diseases, please review the Veterans Benefits section of our Questions and Answers page.
Unlike the presumption for Agent Orange exposure, the presumption that Agent Orange caused a veteran’s disease is a little more complicated and can be defeated by the VA in several ways. First, 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. Second, 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 of the VA’s ability to rebut that a presumptive disease was caused by Agent Orange exposure, it is important to have proper documentation from your doctor to reduce the possibility of having your claim for veterans benefits wrongfully denied. At Perkins Law Firm, we have been helping our clients obtaining the necessary medical documentation to obtain disability benefits in different kinds of disability claims for over 60 years.
Many Vietnam veterans have developed diseases covered by the Agent Orange presumption. If you think you are one of them, consider filing a claim if you have not already. Then, make sure the VA applies the correct legal standard in deciding your claim. If you have any questions along the way, Travis Studdard in our office represents veterans in claims for veterans benefits and will be glad to discuss your claim with you. To reach him, you can simply fill out and submit the “Need Help” form on this page or call the phone number at the upper right of this page.