Agent Orange Exposure after the PACT Act

The PACT Act, signed into law on August 10^th, 2022, greatly expands compensation benefits available to Vietnam Era, Gulf War, Operation Enduring Freedom (OEF), and Operation Iraqi Freedom (OIF) veterans. While the PACT Act adds new locations for presumptive agent orange exposure, it does not cover all locations where agent orange was used or stored.

Agent Orange – Two Presumptions Wrapped Into One

            While the PACT Act adds new presumptive agent orange exposure locations, which had already covered Vietnam, bluewater, and the Korean DMZ, the basic presumptions regarding agent orange exposure have not changed.

            There are actually two different agent orange presumptions that work in tandem.

The first presumption is that if you served at a designated location, it is presumed that you were exposed to agent orange.

The second presumption is that if you were exposed to agent orange in service, it is presumed that agent orange caused certain disabilities – absent clear evidence to the contrary.

What the second presumption means in practice is that if you are able to show that you were exposed to agent orange in service, it is presumed that agent orange caused your disability, even if you did not serve at a presumptive location.

Proving That You Were Exposed to Agent Orange

            Fortunately, the VA acknowledges that agent orange did not appear out of thin air. Agent orange was stored, shipped, and used in locations outside of Vietnam.

 The VA does keep a list of locations where agent orange and other toxic herbicides were stored, both in the United States and abroad. See Herbicide Tests and Storage Outside Vietnam, available at https://www.publichealth.va.gov/exposures/agentorange/locations/tests-storage/index.asp.

However, even if you had service at one of these locations, it may prove difficult to show that you were exposed to agent orange while there. You will probably have to provide strong supporting evidence.

For example, the Navy admits that approximately 850,000 gallons of agent orange was stored at Gulfport, Mississippi between 1968 and 1977, and soil tests in 1995 showed that dioxins were still present in the soil there. A veteran with Gulfport service may have a claim that they were exposed to agent orange there, if their duties or training involved contact with contaminated soil. Though the VA is not going to grant a claim like this without strong supporting evidence.

In other cases, it may be that you had service where agent orange was stored or used, but either the U.S. Government or the VA do not acknowledge that agent orange was ever used there. In this case, you will need to find extrinsic evidence that agent orange was used where you served.

For instance, Rep. Marie Newman’s pending Panama Canal Zone Veterans Act relies on evidence that agent orange and agent purple were shipped to Panama, and these herbicides were used on military bases and other areas to control vegetation. See House Passes Rep. Newman’s Amendment to Conduct Study on Panama Canal Veterans who were Potentially Exposed to Agent Orange, available at https://newman.house.gov/posts/house-passes-rep-newmans-amendment-to-conduct-study-on-panama-canal-veterans-who-were-potentially-exposed-to-agent-orange2 A veteran with Panama Zone service would want to cite to evidence like that noted in the bill to convince the VA that they were exposed to agent orange in service.

Proving Where You Served

            Another hurdle you may face is that although you had service at a presumptive location, the evidence of your service there is weak or nonexistent. Government record keeping was very poor in the Vietnam era. Additionally, since the general public treated Vietnam veterans so poorly, many veterans did not bother to keep evidence of the service they were reviled for.

            In this case any evidence in the form of military records, personal recollections, or buddy statements will be helpful.

            For instance, military records showing a deployment to “SEA” is good evidence of a deployment to Vietnam. Vietnam was often euphemistically referred to on military records as “Southeast Asia”, or SEA.

            Additionally, military records showing what unit you were assigned to, or the ship you were on, can be helpful. Records of units being deployed to Thailand or Vietnam can often be found in public records, as are ship cruising and docking locations. Your evidence of the unit you were in, combined with public records showing where those units were stationed or deployed, may be enough to get you service connected for an agent orange presumptive disability.

            Finally, letters you received or sent home, local newspaper clippings noting enlistment or deployments, or personal recollections of friends, family, or military buddies, can help prove that you served at a presumptive location.

More Than One Way to Skin a Cat – Or Get Service Connected

            Even if it is not possible to show you were exposed to agent orange in service, there are other ways to show that other things in service, or other service-connected disabilities, caused your disability.

For instance, agent orange causes peripheral neuropathy, which is numbness and tingling in the extremities. However, a lower back disability can also cause numbness and tingling in the feet. A veteran with jump wings or helicopter service would be wise to file a lower back disability claim due to airborne jumps or vibrations from the helicopter. Then you can argue that your peripheral neuropathy symptoms are caused by the low back condition. Lower extremity radiculopathies caused by a service connected back disorder will get you the same payment as lower extremity peripheral neuropathy caused by agent orange.

            Other plausible links to agent orange presumed disabilities can include high blood pressure, ischemic heart disease, or diabetes mellitus II due to in-service physical injuries, PTSD, or sleep apnea; or cancers due to sleep apnea, COPD, asthma, or jet fuel exposure. We have successfully linked many disabilities to events in service or to other disabilities that are already service-connected. We have also successfully gotten disabilities that are not on the agent orange presumptive list service-connected as being due to agent orange exposure.

 

File TODAY!

 If you are a veteran who was exposed to agent orange in service, you should apply for disability benefits today, especially if the VA previously denied your benefits claims.

  If you have service at a presumptive location, but your disability is not on the presumptive list, you should still apply for benefits today. We can always make arguments that exposure to agent orange caused your disabilities, even if the disability is not on a presumptive list.

Contact Experienced VA Attorney Cameron Kroeger at (402) 614-6400 or visit www.VeteransDisabilityNebraska.com for more information.