The PACT Act: How it applies to Veterans and Widows

 The PACT Act: How it applies to Veterans and Widows

by Cameron Kroeger, J.D.

This upcoming Monday, August 8th, 2022, President Biden is expected to sign into law the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022, or the PACT Act.

This Act expands the list of locations for presumptive Agent Orange exposures during the Vietnam Era, and it adds two more disabilities to the list of conditions presumptively caused by exposure to Agent Orange. The Act also creates a burn pit toxin exposure presumption for veterans who served in locations related to Operation Enduring Freedom (OEF) and Operation Iraqi Freedom (OIF).

Most importantly for veterans of EOF and OIF, the Act creates a list of disabilities presumed to be caused by toxins from open burn pits. Now the VA will have to grant service connection to veterans with these disabilities unless there is good evidence that something else caused the veteran’s disability.

This change in the law makes EOF and OIF claims like Agent Orange claims, since there is now a list of disabilities presumed to be caused by exposure to toxins for EOF and OIF veterans. The Act further charges the VA with adding additional disabilities to the presumptive list in the future.

The Act also expands the definition of a “Gulf War Veteran” to include service in Afghanistan, Israel, Egypt, Turkey, Syria, or Jordan. This opens more locations to qualify for Gulf War Illness disabilities and infectious diseases.

The Act also adds new presumptive locations for veterans who were exposed to ionizing radiation in service.

 New Agent Orange Locations and Conditions

The new Agent Orange presumptive exposure locations include:

• Service at any U.S. or Royal Thai Military base in Thailand from January 9, 1962, through June 30, 1976.
• Service in Laos from December 1, 1965, through September 30, 1969.
• Service in Cambodia at Mimot or Krek from April 16, 1969, through April 30, 1969.
• Service in Guam or American Samoa, or their territorial waters, from January 9, 1962, through July 30, 1980.
• Service at Johnston Atoll or on a ship that called at Johnston Atoll from January 1, 1972, through September 30, 1977.

             Regarding Thailand service, the Act greatly expands the presumption of Agent Orange exposure in that country. The old presumption (or more correctly, an evidentiary concession) required that the veteran have perimeter duties at specific Royal Thai Air bases. The new law not only opens up all United States or Royal Thai bases in Thailand, it also expands eligible duties to include any location or military job specialty on these bases, not just jobs that include perimeter duties.

            Even if your service at these locations is past the presumptive dates, it is wise to file for benefits anyway. The long half-life of agent orange, which can be decades, means that veterans were likely exposed to agent orange for many years past any artificial closing date created by Congress.

            The new Agent Orange presumptive disabilities include: Hypertension or high blood pressure and Monoclonal gammopathy of undetermined significance (MGUS)

            It has been a long wait for hypertension to be added to the agent orange presumptive list, as the National Academies Sciences, Engineering, and Medicine determined a causal link back in 2018.

 Burn Pit Locations and Presumptive Disabilities

            If you had service at the following countries or locations, it is now presumed that you were exposed to open burn pit toxins:

For service on or after August 2, 1990: Bahrain, Iraq, Kuwait, Oman, Qatar, Saudi Arabia, Somalia, The United Arab Emirates (UAE) or, the airspace above any of these locations.

For service on or after September 11, 2001: Afghanistan, Djibouti, Egypt, Jordan, Lebanon, Syria, Uzbekistan, Yemen, or, the airspace above any of these locations.

Diseases presumed to be caused by exposure to burn pit toxins now include: Asthma diagnosed after service, subject to certain conditions; Cancers including: Cancers of the head, neck, respiratory cancers, gastrointestinal cancers, reproductive cancers, lymphoma, lymphatic cancer, kidney cancer, brain cancer, melanoma, and pancreatic cancer; chronic bronchitis; chronic obstructive pulmonary disease (COPD); constrictive bronchiolitis or obliterative bronchiolitis; emphysema; granulomatous disease; interstitial lung disease; pleuritis; pulmonary fibrosis; sarcoidosis; chronic sinusitis; chronic rhinitis; glioblastoma; or

Any other disease that the VA Secretary determines is caused by exposure to open burn pit toxins.

 New “Gulf War Veteran” Definition

         The Act redefines “Gulf War Veteran” to include veterans with service in the following countries: Israel, Egypt, Turkey, Syria, and Jordan.

These countries have been added to the previous list of Gulf War countries and locations, which are: Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations.

The expanded “Gulf War Veteran” definition means that veterans who served in these countries are now eligible for presumptive service connection for “Gulf War Illness” disabilities. However, service connection for Gulf War Illness disabilities is difficult to prove.

         Gulf War Illness includes signs or symptoms of an undiagnosed illness, or a chronic multi-symptom illness including: Fatigue, Chronic fatigue syndrome, Fibromyalgia, Unexplained rashes or other dermatological signs or symptoms, Signs or symptoms involving the skin, Headache, Muscle pain, Joint pain, Neurological signs and symptoms, Neuropsychological signs or symptoms, Signs or symptoms involving the upper or lower respiratory system, Sleep disturbances, Gastrointestinal signs or symptoms, Functional gastrointestinal disorders, Cardiovascular signs or symptoms, Abnormal weight loss, and Menstrual disorders.

         To qualify for the Gulf War Illness presumption, the veteran has to show that their disability is undiagnosed, or that the pathophysiology (how the disability works) or the etiology (what caused the disability) of the disability is inconclusive.

This odd definition both includes and excludes almost any disability that a person could have, which makes it difficult to convince the VA that the disability is related to service.

 On the positive side, the addition of service in Israel, Egypt, Turkey, Syria, and Jordan to the Gulf War Veteran definition means that veterans who served in these areas can now be service-connected for certain infectious diseases, including: Brucellosis, Campylobacter jejuni, Coxiella burnetii (Q fever), Malaria, Mycobacterium tuberculosis, Nontyphoid Salmonella, Shigella, Visceral leishmaniasis, and West Nile virus.

 

            These diseases must have manifested to a 10% disabling degree or more within a year from the date of separation from a qualifying period of service. Malaria must have manifested to a degree of 10% or more within 1 year of separation from a qualifying period of service, or when treatises indicate that the incubation period commenced during a qualifying period of service. There is no time limit for visceral leishmaniasis or tuberculosis to manifest.

            The VA also has a list of long-term health effects that may be caused by these infectious diseases, that can be related to service. 

 Radiation Exposure

            Veterans with the following service are now presumed to have been exposed to ionizing radiation:

• Cleanup at Enewetak Atoll, from January 1, 1977, through December 31, 1980.
• Cleanup of an Air Force B-52 bomber carrying nuclear weapons off the coast of Palomares, Spain, from January 17, 1966, through March 31, 1967.
• Response to a fire onboard an Air Force B-52 bomber carrying nuclear weapons near Thule Air Force Base in Greenland from January 21, 1968, to September 25, 1968.

 Benefits for Widows

        Furthermore, if you are a widow or qualifying dependent of a veteran who died due to any of the above presumptive disabilities, you likely qualify for Dependents Indemnity Compensation (DIC). If you haven’t already, you should apply for benefits today.

File TODAY 

If you are a veteran who had service at any of the above locations and you have these disabilities, you should apply for disability benefits today, especially if the VA previously denied your benefits claims.

         If you have service at these locations, but your disability is not on the presumptive list, you should still apply for benefits today. I can always make arguments that exposure to agent orange or toxins from burn pits caused your disability, even if the disability is not on a presumptive list.

Call Elder Law of Omaha today at (402) 614-6400 to find out more.