On May 27, 2021, the Veterans’ Administration announced important expansions of eligibility for disability benefits related to Agent Orange exposure during the Vietnam War, and hinted at future expansions for conditions related to burn pits employed in southwest Asia during the Persian Gulf War and Afghan conflict.
The changes pertain to the list of medical conditions that are presumed to be related to military service. A ‘presumption’ is vitally important, since it relieves the veteran of having to prove that service caused the condition. All that is necessary is to show military service at a covered time and place, as well as a covered condition.
The VA also announced that it would be complying with the court’s order in the case of Nehmer v. U.S. Department of Veterans Affairs. This means certain Blue Water Vietnam Vets who were denied benefits will receive an automatic review of their eligibility and possible retroactive benefits. The announcement comes as a great relief to veterans and their families, who had been unfairly denied benefits, in many cases for decades, for illnesses contracted during service to our country.
New Conditions Given Agent Orange Presumptions
Agent Orange, the deadly herbicide used to thin out jungle foliage during the Vietnam War, has been connected to a number of debilitating and fatal diseases, as well as birth defects in veterans’ children. The new conditions being given presumptions are:
- Bladder cancer
Parkinsonism refers to a syndrome comprising movement abnormalities generally seen in Parkinson's disease, such as muscle rigidity, muscle tremors, slowness of movement, and impaired balance, resulting from the loss of dopamine-containing nerve cells.
Veterans and their surviving family members who had already been denied benefits for these conditions will receive an automatic review, so there is no need to reapply. The VA has promised to contact all applicants affected by this change.
How Nehmer v. U.S. Department of Veterans Affairs Affects Eligibility
On November 6, 2020, the U.S. District Court for the Northern District of California decided in favor of Vietnam veterans and their families, ending an 18-year quest for enforcement of a consent decree granting eligibility for benefits.
The original consent decree, issued in 1991, stated that whenever the VA recognized that new scientific evidence indicated a positive relationship between Agent Orange exposure and a new disease, the VA would identify all claims based on that disease that were previously denied and pay benefits retroactive to the date of the claim. However, in 2002, the VA decided the consent decree did not apply to Blue Waters vets, who had not actually served on the Asian continent. As a result, Blue Waters vets did not get the benefit of automatic reconsideration when a new disease was added to the list. Instead, they had to file a new claim, which eliminated the possibility of retroactive benefits to the date of their first denied claim. Nehmer now requires automatic review for Blue Waters vets and opens the door to retroactive benefits.
Possible New Presumptive Conditions for Middle East and Asian Burn Pit Exposure
Finally, the VA Secretary issued a recommendation to consider the creation of new presumptions of service connection for chronic respiratory conditions common among veterans of the Persian Gulf War and actions in Afghanistan and Uzbekistan. These illnesses may include:
The recommendation is based on an evaluation of a National Academies of Science, Engineering and Medicine report and other evidence. The culprit behind these and other illnesses would seem to be particulate matter pollution resulting from the use of incinerators and open burn pits in the field. Secretary McDonough promised “a holistic approach to determining toxic exposure presumption going forward” and suggested there may be “other potential new presumptions, grounded in science.”
Have you previously been denied rights to your benefits due to an Agent Orange or Gulf War illness? Contact our veteran’s disability lawyers who are ready to help you in light of the new VA rules. Contact us today at 888.878.9350 or connect online.