VA drags its feet on expanding Agent Orange Presumptive List

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,”  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.”

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.