Information on Submitting VA Claims for Agent Orange

 
Courtesy of Thailand Vietnam Veterans 
for Equal Treatment (TVVET) and VSPA

Remember.....  

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A well-grounded claim is one which is plausible. If not, the claim must fail and there is no further duty to assist in the development of the claim. 38 U.S.C.A. 5107; Murphy v. Derwinski, 1 Vet. App. 78 (1990). 

 

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A well-grounded claim requires more than an allegation; the claimant must submit supporting evidence. Furthermore, the evidence must justify a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609 (1992).  Supporting evidence may be in many forms, to include but not limited to letters, e-mails, etc.

 

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In order for a claim to be well grounded, there must be competent evidence of a current disability (medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498, 506 (1995). 

 

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The evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well grounded, except where the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). 

 

The following diseases are deemed associated with herbicide exposure, under VA law: chloracne or other acne form diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and sub acute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma and diabetes mellitus (Type 2)).

See 38 C.F.R. 3.309(e); see also 38 U.S.C.A. 1116(f), as added by 201(c) of the "Veterans Education and Benefits Expansion Act of 2001," Pub. L. No. 107-103, 115 Stat. 976 (2001) (which added diabetes mellitus (Type 2) to the list of presumptive diseases as due to herbicide exposure). For purposes of this section, the term acute and sub acute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. 3.309(e). 

The foregoing diseases shall be service connected if a veteran was exposed to a herbicide agent during active military, naval, or air service, if the requirements of 38 U.S.C.A. 1116, 38 C.F.R. 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. 1113 and 38 C.F.R. 3.307(d) are also satisfied.

In order to establish service connection by presumption, based on herbicide exposure, the diseases listed above (see 38 C.F.R. 3.309(e)) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acne form disease consistent with chloracne, porphyria cutanea tarda and acute or sub acute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval or air service. See 38 C.F.R. 3.307(a)(6)(ii).

Get help with your claim. several agencies such as DAV & VFW are willing to help you. Be persistent, it will take time, don't give up! 

These cases are appeals that (in some cases) concern agent orange exposures that occurred in locations other than Vietnam.  (Print and include in your claim, if it can apply to you.) 

Left Click to View, Right Click to Save

 
Citation Nr: 9916522 
Decision Date: 06/16/99 
Archive Date: 06/21/99

Appeals Case involving a veteran who served at Nakhon Phanom RTAFB.  Case determined that credible evidence sustains a reasonable probability that the veteran was exposed to Agent Orange while in Thailand. 

A 2 page memo  from Col. Russell, USAF. It  is not in good shape but if you look at the 5th line of the 3rd paragraph you can make out the name Nakhom Phanom. The memo is in reference to Col. Russell trying to find C-123 Ranch Hand aircraft that could be refitted for aerial spraying of Malathion to take care of a mosquito problem in South Vietnam.  Colonel Russell and  Col. Mosley talked to a Col. Fredrick, then commander of the 315th ACW (later renamed to SOW) about available aircraft. Col. Fredrick told them he had 6 C123s at NKP that could be drawn from for re-outfitting. the 315th was the wing responsible for spraying Agent Orange.

Col Russell A Downey Memo Page 1

Col Russel A Downey Memo Page 2

Download from VSPA in Adobe Format.

 
Citation NR: 9604685 
Decision Date: 02/27/96 
Archive Date: 03/08/96

The appeals court determined that service connection should be granted for the cause of the veteran's death, respiratory  insufficiency due to extensive metastatic adenocarcinoma of the lungs.  While stationed in Thailand from October 1971 to September 1972,  the veteran served as the Airborne Weapons Technician Crew Chief aboard AC-130 gunships and served as lead gunner during in-flight operations.  He flew missions over Vietnam and at times landed in Vietnam for refueling and rearming.  The appellant maintains that the veteran was exposed to Agent Orange while in service and that herbicide exposure caused him to develop the lung cancer which eventually resulted in his death. (Landing in Vietnam is the key to this case.)

Download from VA in Text Format 

 
Citation Nr: 0418252 
Decision Date: 07/09/04 
Archive Date: 07/21/04

At the time of the initial award of service connection for histiocytic type malignant lymphoma, the record contained medical evidence confirming a diagnosis of histiocytic type malignant lymphoma shortly after discharge, the veteran's plausible allegations of in-service herbicide exposure, and corroboration of the veteran's service in Thailand and his maintenance work on B-57 aircraft. 

 
Citation Nr: 0527748 
Decision Date: 10/13/05 
Archive Date: 10/25/05

Entitlement to service connection for diabetes mellitus secondary to herbicide exposure for a veteran stationed on Guam. The veteran had active service from December 1966 to December 1970, including in Guam from December 1966 to October 1968.

 
Citation Nr: 0209347 
Decision Date: 08/07/02 
Archive Date: 08/12/02

The veteran served on active duty from October 1967 to June 1971, including a nine month tour of duty in the Thailand. Peripheral neuropathy of the lower extremities is causally related to the veteran's service-connected bilateral tarsal tunnel syndrome.

 
Citation Nr: 0418252 
Decision Date: 07/09/04 
Archive Date: 07/21/04

The veteran was awarded service connection for histiocytic type malignant lymphoma in a January 1995 rating decision. At the time of the initial award of service connection for histiocytic type malignant lymphoma, the record contained medical evidence confirming a diagnosis of histiocytic type malignant lymphoma shortly after discharge, the veteran's plausible allegations of in-service herbicide exposure, and corroboration of the veteran's service in Thailand and his maintenance work on B-57 aircraft.  

 
Citation Nr: 0118277 
Decision Date: 07/12/01 
Archive Date: 07/17/01

Case is not settled but interesting comment from The file also included a statement from Michael G. Ratelle, who had two years experience working for the Ministry of Public Health in Thailand and who found that Agent Orange "more than likely" contributed to the development of the appellant's squamous cell carcinoma.

Download from The VA in Text Format 

 
Citation Nr: 0333331 
Decision Date: 11/28/03 
Archive Date: 12/10/03

In this case, the veteran is not entitled to presumptive service connection because he never served in Vietnam during the Vietnam era. Instead, he claims that he was exposed to herbicides while stationed at the Royal Thai Air Force Bases in Korat, Thailand from 1970 to 1971. He maintains that he worked as an inventory specialist and he was responsible for maintaining a certain quantity of herbicides that were being used in Vietnam. He also alleges that herbicides were being sprayed around the perimeter of the base. In support of the veteran's claim, D.S. submitted a statement confirming that herbicides were being stored at the Air Force Based in Korat. D.S. explained that he and the veteran were assigned to the base supply system and that their duties included counting and inspecting barrels containing chemicals which had arrived from supply depots in Vietnam. According to D.S., leaking chemical from some of the barrels was carried over the storage area and looked like a greasy tar pit. D.S. maintained that he and the veteran were exposed to these chemicals on their skin, in their food, and from the air they breathed. When the shelf life had expired, the chemicals were transported to an open pit and burned under the veteran's supervision. Unfortunately, there is no presumption of exposure to herbicide agents in Thailand. However, in light of the statements provided by the veteran and D.S. concerning the use and storage of herbicides at the Air Force Base in Korat, Thailand, VA should attempt to obtain confirmation from appropriate sources.

 
Citation Nr: 0327969 
Decision Date: 10/17/03 
Archive Date: 10/28/03

Entitlement to service connection for Type II diabetes mellitus,  as result of herbicide exposure in Thailand. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The veteran testified before the undersigned at a videoconference hearing held in April 2003. The veteran contends that his Type II diabetes mellitus is the result of exposure to herbicides during service in Thailand while he was in the Air Force. Service records confirm that the veteran was assigned to the 1982nd Communications Squadron at Ubon Air Field in Thailand from 1969 to 1972. At the hearing, the veteran reported that he had been receiving VA treatment for his diabetes since March or April 2002. 

 
Citation NR: 9800877 
Decision Date: 01/13/98 
Archive Date: 01/21/98

Entitlement to service connection for prostate cancer due to Agent Orange exposure. The veteran had active service from July 1960 to October 1963. Credible evidence sustains a reasonable probability that the veteran was exposed to dioxins while serving in Okinawa.

Haas v. VADC  

Veterans who patrolled the waters off Vietnam can now claim disability benefits for exposure to Agent Orange under an appeals court ruling that opens the door for thousands of servicemen to seek medical coverage. The ruling was handed down by the U.S. Court of Appeals for Veterans Claims in the case of Haas v. VADC-Nicholson by a former sailor who served on an ammunition ship during the Vietnam War but never stepped foot on land. The court's order, issued 16 AUG, reverses the Veterans Affairs Department's denial of benefits for Jonathan L. Haas, who blamed his diabetes, nerve damage and loss of eyesight on exposure to Agent Orange. Haas, represented by the National Veterans Legal Services (NVLS) argued that clouds of the toxic defoliate, which the U.S. sprayed on Vietnamese jungles, drifted out to sea, engulfing his ship and landing on his skin. Veterans officials said that to qualify for coverage, Haas was required to have docked in Vietnam and come ashore.

     The three-judge panel said regulations governing the benefits were unclear. The court said it made no sense for veterans who patrolled Vietnam's inland waterways and those simply passing through the country to receive medical coverage while those serving at sea do not. "Veterans serving on vessels in close proximity to land would have the same risk of exposure to the herbicide Agent Orange as veterans serving on adjacent land, or an even greater risk than that borne by those veterans who may have visited and set foot on the land of the Republic of Vietnam only briefly," Judge William A. Moorman wrote. The Court did not actually award a disability to Haas, but sent his case back to the Board for that determination.  If the Board rules in his favor, the Court directed that his other Agent Orange-related medical conditions also must be compensated.  The Veterans Affairs Department said Friday that it was reviewing the opinion and was not sure how many veterans would be affected or how much the added coverage would cost.

     This VCAA decision could eventually expand to cover more veterans than the decision appears to now cover.    During Vietnam was a short time frame where military service within the Theater of Operations within the Vietnam War justified the Vietnam Service Medal. This included waters off the coast {so called brown water}, deep waters for air operations {so called blue water operations}, Thailand based Operations for USAF and other types of operations which included loading the Agent Orange aircraft.  Most Vietnam combat veterans receive some medical benefits, but if their illnesses are related to their service, they could receive full coverage and their families might be eligible for benefits. David Houppert, director of veteran's benefits for the Vietnam Veterans of America, said the ruling could allow thousands of veterans to seek coverage for service-related illnesses. Most are Navy veterans, he said, but some Marines and Army veterans could be affected. Houppert said his group was encouraging these veterans to seek coverage quickly because the ruling left it up to government officials whether to change federal regulations in a way that could deny coverage.  Vets can refer to www.vba.va.gov/bln/21/benefits/herbicide/#bm04 to review what benefits they could be eligible for.

     As of 20 AUG the VADC-legal office had not filed a request for a stay order pending an appeal to the Supreme Court.  The Board of Veterans' Appeals is sitting at the Phoenix VARO.  The senior judge has agreed to contact his office in Washington DC to get current guidance on implementation of this decision.  The VCAA ruling over turned a BVA decision on Haas.  If the VADC-Sec Nicholson's office does not appeal they have no choice but to grant service connected for Agent Orange Presumptive Disabilities with military service with in the theater of Vietnam war for those with the Vietnam Service Medal.  This decision will mean a potential liability of millions of dollars to the VA Medical budget and VA Administrative budget.  Potential claims from the wives of already deceased Vietnam veterans could also mean considerable liability.  This helps explain why the VADC has been slow to provide positive guidance about this VCAA decision.  Haas is now the law of the land and therefore VA must abide by it. However, it is possible that VA may amend their regulations in such a way that it is adverse to veterans who otherwise would have benefited from the court's decision.  Service organizations are recommending that other veterans like Mr. Haas who served offshore but did not set foot in Vietnam, and who suffer from diseases or conditions that they believe to be caused by exposure to Agent Orange should consider filing a claim for disability.  Members who have had such claims denied may wish to re-file based on the Court's decision.  Veterans are encouraged to seek the advice and assistance of an experienced veterans' service organization before proceeding. [Source: Associated Press article 18 Aug  & Arizona Department of Veterans' Services message 23 Aug 06 ]

VA Guide to Agent Orange Benefits

Potential Change in Appeals Process

A bill which would allow veterans to hire lawyers to represent them in their efforts to obtain federal benefits from the U.S. Department of Veterans Affairs has been introduced by U.S. Senators Larry Craig (R-Idaho) and Lindsey Graham (R-South Carolina). Under current law, all 24 million living veterans are prohibited from hiring a lawyer to help them navigate the Veterans Affairs system. It is only after a veteran has spent months and even years exhausting the extensive VA administrative process that the veteran then may retain counsel - a process that often takes 3 or more years to complete. Under the current appeals system, about 85 percent of veterans choose to be represented by Veterans' Service Organizations or state veterans agency personnel.

 Agent Orange in Thailand ?

 

 

 

                      

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