Exposure to Agent Orange and Other Herbicides

Exposure to Agent Orange and Other Herbicides

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If you were exposed to Agent Orange in Vietnam, you have undoubtedly had a long hard fight trying to get the benefits you deserve. There is no firm data on how many U.S. service members were exposed to Agent Orange but the backlog of Agent Orange veterans disability cases at the VA is estimated to be about half a million.(1) We’ve talked to many Vietnam and Korea veterans who firmly believe VA is prolonging the disability claims process in the hopes the Veteran will die before they get benefits. We’ll do everything in our power to make sure they don’t do that.

If the VA or Board of Veterans Appeals has denied your claim for a disease related to Agent Orange exposure, call our office at (888) 878-9350 to learn more about how we can help you.

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Health Effects of Agent Orange Exposure

Veterans exposed to Agent Orange experienced health issues, although it took the VA some time to research these issues and to provide veterans with a clear pathway to collect related disability benefits. As explained by the National Library of Medicine, in 1991, the U.S. Congress enacted Public Law 102-4, referred to as the “Agent Orange Act of 1991”. The results of this research would inform the recognized health effects of Agent Orange and the benefits available for related conditions. 

The legislation required the Secretary of Veterans Affairs to request that the National Academy of Sciences complete a comprehensive evaluation and review of the medical and scientific information available concerning the health impacts of exposure to Agent Orange in Vietnam. The order also reviewed the health impacts of other herbicides used in Vietnam and their components, including dioxin. 

The Institute of Medicine, IOM, would complete the research and present it to the Department of Veterans Affairs, finding a number of health effects of Agent Orange and other herbicides that Veterans were exposed to in Vietnam. Following is a consideration of those that were found to have sufficient evidence and other scales of certainty. 

The IOM found sufficient evidence of an association between Agent Orange exposure for a number of conditions. This means that there was a conclusion of a positive association of exposure to herbicides in Vietnam, including Agent Orange, in the following:

  • Bladder cancer
  • Chronic B-cell leukemia
  • Hodgkin’s disease
  • Multiple myeloma
  • Non-Hodgkin’s lymphoma
  • Prostate cancer
  • Respiratory cancers (including lung cancer)
  • Some soft tissue sarcomas

The IOM found limited or suggested evidence of an association, meaning that chance, bias, and confounding could not be confidently ruled out in the following conditions:

  • Prostate cancer
  • Respiratory cancers of the lung, trachea, and larynx
  • Multiple myeloma 

The IOM determined that available studies concerning the following conditions were inadequate and/or insufficient to determine whether an association exists between herbicides soldiers were exposed to in Vietnam and the following conditions: 

  • Bone cancer
  • Renal cancer
  • nasal/nasopharyngeal cancer
  • Female reproductive cancers, including breast, cervical, ovarian, and uterine
  • Testicular cancer
  • Birth defects 
  • Low birth weight 
  • Spontaneous abortion
  • Neonatal/infant death and stillbirths
  • Leukemia 
  • Childhood cancer in your children
  • Cognitive and neuropsychiatric disorders 
  • Dysfunction of motor skills and/or coordination
  • Abnormal sperm parameters and infertility
  • Circulatory disorders
  • Immune system disorders
  • Peripheral nervous system disorders
  • Respiratory disorders 

Determining whether or not your current condition is linked to your Agent Orange exposure requires a thorough review of your medical records and a deep knowledge of how Agent Orange impacts those exposed to it. Working with medical professionals who are not experienced with soldiers who have been harmed by exposure to Agent Orange could lead to certain conditions being overlooked.

Your approval for VA disability benefits for exposure to Agent Orange depends upon the evidence submitted, and the nexus letter can be essential. When the medical expert writing your nexus letter knows what to look out for with Agent Orange exposure, they are better able to assess your condition and support your claim. Working with our law firm provides you with the benefit of your extensive network of medical professionals, familiar with the needs of veterans and the conditions that can develop in those exposed to Agent Orange. 

VA Treatment and Compensation Options 

Complete coverage for your medical and mental health treatments are available through the VA for veterans with a recognized condition that is at or greater than 0 percent. This means that if you have a condition that is diagnosed, even if it is not disabling, the VA covers your care. The main purpose of VA disability payments is to replace the loss in earnings potential that your disability may cause. 

VA Disability Compensation Payments are Tax-Free and are Meant to Replace Lost Earning Capacity

The amount in compensation that you are eligible for in terms of tax-free monthly compensation is determined by your VA disability rating. A rating of 0 percent entitles you to medical and mental health coverage but not monthly payments. When your disability impairment reaches the 10 percent disabling level, then VA disability compensation payments become available. 

The purpose of VA disability is to replace any negative impact on your economic value that your service-connected conditions and disabilities may have caused. It is important to understand that a VA disability claim or appeal is not like a personal injury lawsuit. You are not able to collect for pain and suffering, and punitive damages are not available. The VA does not pay compensation simply because the disability negatively impacts your quality of life.

The amount you are entitled to is limited by the VA disability rating you receive and the compensation tables associated with the disability percentages. Each percentage has a specific set of symptoms that the VA is looking for, which makes it essential that you submit sufficient evidence with your application to prove your claim. 

When your disability or combination of disabilities makes you unable to work at all, you are entitled to 100 percent disability. For veterans with a 70 percent or greater VA disability rating, you could be eligible for TIDU, which awards you disability compensation at the 100 percent rate. You need to have at least one condition that is 40 percent or greater disabling and meet other requirements. Discussing your situation with an experienced agent orange attorney is essential to support your claim.

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How to Qualify for VA benefits for agent orange exposure?

VA presumes service-connection if you have any of 19 specific diseases related to Agent Orange exposure. To establish a service connection and get disability benefits a service connection for any of these diseases you need to provide:

  • 1.
    A medical diagnosis of a disease which VA considers a result of Agent Orange exposure

    A medical diagnosis of a disease which VA considers a result of Agent Orange exposure

  • 2.
    Proof of service in Vietnam or the Korean DMZ or exposure to Agent Orange in another location

    Proof of service in Vietnam or the Korean DMZ or exposure to Agent Orange in another location

  • 3.
    Medical evidence that the disease began within the deadline (if any).

    Medical evidence that the disease began within the deadline (if any).

If a veteran has a disease that is not on the list, he can still make a claim for disability benefits. However, he must actually prove that Agent Orange caused his disease.

For example, if the veteran has a form of cancer that is not on the list, but his oncologist says the cancer was a unique type of cancer that could only come from exposure to Agent Orange, then the veteran would have a basis for a claim. In deciding claims for disability benefits due to Agent Orange exposure, the VA cannot simply disregard a claim because it is not on the list of Agent Orange diseases. The VA must take the further step of analyzing whether the disease in fact came from exposure to Agent Orange.

Additionally, there may be other diseases not on the list that might be associated with Agent Orange exposure. Just because your disease is not on the list of Agent Orange diseases, it doesn’t mean you can’t prove a service-connection.

A case like this would be analyzed under the normal criteria for service-connection. For instance, if the service medical records have a treatment note describing the early symptoms of the current diagnosed disability, then you may be able to make out the benefits claim on a direct basis.

Filing a Claim Related To Agent Orange Exposure 

Collecting benefits for the costs and hardships associated with your Agent Orange-related condition is not automatic. Rather, you must collect sufficient evidence to prove to the VA that you have a current diagnosis for a condition linked to your active service and that the condition was caused by exposure to Agent Orange. 

To begin the process of collecting the compensation you are eligible for from your Agent Orange-related condition or disability, you’ll need to fill out the first form on this list and should also complete the others in support of your claim:

  • VA Form 21-526EZ - Application for Disability Compensation and Related Compensation Benefits - This form is the essential form you’ll need to completely and accurately fill out and turn in to the VA, with supporting evidence to prove your claim. The VA has access to your military records and related records, and it is important that you provide them with additional evidence to support your present diagnosis and its link to Agent Orange. 
  • VA Form 21-4138 - Statement in Support of Claim - This form is used to present the VA with statements from individuals who have direct knowledge of your condition and the way in which it impacts your day-to-life. The most common and valuable statement in support of your claim is a nexus letter, followed by the buddy statement. 

When it comes to proving your exposure to Agent Orange, “buddy statements” can be helpful for VA to recognize the cause of your condition. A buddy statement is a statement from a person with firsthand knowledge of your condition. This could be a fellow soldier or Marine who was also exposed to Agent Orange at the time you were, or a commanding officer with knowledge of your experience. Statements from your friends, family, and coworkers can also be submitted to provide the VA with evidence concerning how your symptoms impact your day-to-day life and ability to work. 

Nexus Letters and Statements in Support of Your Claim are Helpful 

The VA can only approve disability claims when a medical expert is of the opinion that your current non-presumptive condition is linked to your active service, specifically to Agent Orange exposure in this instance. In support of your claim you can submit nexus letters through VA Form 21-4138, linked above. 

The statement in support of your claim can be a statement from a medical professional who has reviewed your current diagnosis, claims file (including service and post service treatment records) and its service connection. When the medical professional is of the opinion that your condition is linked to your Agent Orange exposure, the opinion can be influential in the approval of your claim and the VA disability rating you receive for related conditions. It can be challenging to find a medical expert to do a nexus report, and often the cost of these experts is more than some veterans can afford. In those instances, it is usually best to consult with a law firm that could leverage its resources to hire a medical expert.

The standard of proof for addressing the likelihood of service connection is rated on the following scale: “not likely,” “at least as likely as not,” “more than likely,” and “highly likely.” If the medical opinion finds that your current condition is at least as likely as not linked to your Agent Orange exposure during qualifying active service, then your claim may be approved by the VA. The disability rating that is assigned depends upon the extent to which your symptoms impact your daily life and your earning capacity. 

Solid Evidence Can Save You Time and Future Appointments

Often, a compensation and pension (C&P) exam is an essential part of your VA disability benefits application. For that you must go to a VA facility and receive an assessment from a medical professional employed by the VA. These individuals may not be experts and could have a substantial volume of clients to attend to. This can lead to your case not receiving the individual attention it deserves. When your application contains sufficient medical evidence for the VA to approve your claim, then oftentimes, you will not be required to undergo a C&P Exam, especially if the condition is on the presumptive list and the symptoms are well documented in your VA treatment records.

Why did the board or regional office deny my disability benefits claim for agent orange exposure?

The VA usually sides with their doctor over a private doctor or any doctor that writes a medical report in favor of a veteran. Over the years, we have seen a litany of standard reasons why the VA denies disability claims such as:

  • 1

    “The Board finds the VA examiner’s report to be more probative. He reviewed the claims file and provided a detailed rationale for his decision. The private doctor did not review the claims file and thus his report is less probative.”

  • 2

    “The medical evidence of record indicates that 24 years have elapsed since discharge and the first documentation of a claimed disability.”

  • 3

    “The Board has carefully considered the veteran’s statements and his opinion that his disability was caused by service. While the veteran may sincerely believe there is a connection, he is not a doctor and therefore not competent to offer opinions on questions of medical causation or diagnosis.”

  • 4

    “The service medical records reveal no treatment for or complaint of the claimed condition during service. The condition was not shown during service or for many years thereafter. Thus, in the absence of any evidence of a nexus to service, service connection must be denied.”

  • 5

    “The veterans’ separation physical exam showed normal findings on clinical examination.”

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What should I do if my claim for agent orange exposure is denied by the VA?

Hopefully, if you’ve read this far you’re beginning to realize that you have options if your claim for disability benefits due to Agent Orange exposure has been denied.

VA claims, “This ‘presumptive policy’ simplifies the process for receiving compensation for these diseases since VA foregoes the normal requirements of proving that an illness began during or was worsened by your military service.” What they don’t tell you is that if your disease is not “on the list” of approved presumptive diseases then VA will deny you. Also, if you cannot establish “boots on the ground” in Vietnam or at the DMZ then the VA will deny you on the grounds that you were not actually exposed to Agent Orange. Sometimes the VA will grant you benefits for Agent Orange or herbicide diseases but assign a rating that is too low.

If your claim has been denied for any of these reasons, you should hire a qualified veterans disability benefits lawyer who can help you appeal the decision and make the case for why deserve disability benefits.

How Can Gang & Associates help me?

There is one legal theory VA likes to avoid when your Agent Orange condition is not on the ‘list’ of presumed service-connected diseases. Often, VA will deny you solely on the presumptive theory and neglect to consider a direct theory. This means that although your disease may not be on the list, the unique facts of your case might indicate that your disability was due to herbicide exposure.

Our lawyers regularly receive emails from prospective clients asking point blank what we can do for them. Our response is generally as follows: We will represent your claim on appeal at the regional office, the Board of Veterans Appeals or at the U.S. Court of Appeals for Veterans Claims (CAVC). We will shepherd the claim through the VA disability benefits system for you and through the federal court, if necessary.

If you see value in having your own attorney represent you against the government, then we invite you to call us. We can help you by handling your case at this very complex stage. If you’re tired of going it alone and want attorneys who have represented over 1,000 appeals in front of the CAVC, then you should contact our offices today.