Updated: Oct 7, 2022
By Chris Johnson, VA Accredited Attorney & Partner, Takacs McGinnis Elder Care Law
In late May, the VA announced two major decisions related to presumptive conditions associated with Agent Orange and particulate matter exposures during military service in Southwest Asia.
Presumptive Conditions 101
Before I talk about the VA’s decisions, I want to define a term that is often confusing to Veterans and their families. That term is “presumptive condition.” The VA presumes that certain disabilities were caused by military service. This is because of the unique circumstances of a specific Veteran’s military service. If a presumed condition is diagnosed in a Veteran in a certain group, they can be awarded disability compensation.
When the VA adds a condition to the presumptive condition list, it becomes easier to qualify for compensation. Think of it as the express lane to more benefits. If a Veteran has an illness on the presumptive condition list, the Veteran doesn’t have to prove they were exposed or that the condition was connected to their service. The VA presumes the connection, which relieves the Veteran of the burden of proof.
Diseases on the list of presumptive conditions aren’t the only ones that the VA covers. If a Veteran has a disease that’s not on the list of presumptive conditions and the Veteran thinks there’s a connection between that disease and his or her military service, it’s up to the Veteran to prove the connection.
New Presumptive Conditions Related to Agent Orange
VA will begin implementing provisions of the William M. Thornberry National Defense Authorization Act for Fiscal Year 2021, adding three conditions to the list of those presumptively associated with exposure to herbicide agents, more commonly known as Agent Orange. Those conditions are bladder cancer, hypothyroidism, and Parkinsonism.
The addition of Parkinsonism, in particular, is long overdue. Parkinsonism is a condition that causes a combination of the movement abnormalities seen in Parkinson’s disease. Parkinson’s disease has been associated with Agent Orange exposure, so Vietnam Veterans who have the symptoms of Parkinson’s disease but haven’t been diagnosed are now eligible for presumptive condition treatment.
This is a nice big win for the people on the edges, those who have conditions that appeared to be caused by exposure but weren’t on the presumptive conditions list. Unfortunately, there will always be someone on the edges. As soon as you draw a line, there’s always someone just on the other side of it. For Blue Water Navy Veterans, the limit is 12 nautical miles. Veterans who served 13 or more miles away are now on the edges. If you’re a Veteran and you’re diagnosed with a condition you think is tied to your military service, you can still receive benefits if you can prove the connection. If you can show direct exposure, you qualify. You could have been on an Air Force base in the United States handling barrels of Agent Orange. You can still make your case with the VA and receive benefits.
This latest addition to the presumptive conditions list is long overdue, in my opinion. The VA has to be meticulous and methodical and so I don’t fault them for their due diligence. It’s the right thing to do and they need to be good stewards of the government’s dollars. Many of our Nation’s Veterans have waited a long time for these benefits.
The VA will apply the provisions of court orders related to Nehmer v. U.S. Department of Veterans Affairs, which may result in an earlier date for entitlement to benefits for Veterans who served in the Republic of Vietnam during the Vietnam War. Vietnam War era Veterans and their survivors who previously filed and were denied benefits for one of these three new presumptive conditions will have their cases automatically reviewed without the need to refile a claim.
If you are a Veteran or a surviving spouse who will be affected by this ruling, watch for a letter from the VA.
Possible New Presumptions for Particulate Matter Exposures
If you are a Veteran (or you know one) who served in the Southwest Asia theater of operations during the Persian Gulf War and/or after September 19, 2001, or in Afghanistan and Uzbekistan during the Persian Gulf War, this is for you.
Most people associate the presumptive condition list with Vietnam. However, the VA looks at presumptive conditions in all eras because each wartime period has its own unique hazards.
The VA is considering creating the rule of presumption service connection for chronic respiratory conditions associated with exposure to airborne hazards during military service for people who served in the Southwest Asia theater of operations during the Persian Gulf War and/or after September 19, 2001, or in Afghanistan and Uzbekistan during the Persian Gulf War. Many Veterans in those wars were exposed to particulate matter pollution that has resulted in chronic respiratory conditions, which may include asthma, rhinitis, and sinusitis.
The rulemaking process is in the early stages, but I’m optimistic that the VA will come up with a list of presumptive conditions for these Veterans. The VA is promising to take a holistic approach to the process, base their decision on science, and invite impacted Veterans to participate in the process. The VA seems committed to fulfilling their responsibility to Veterans who may have suffered disability due to their service. This is good news for a whole new era of Veterans.
If you are a Veteran (or caring for one) and you have questions about VA benefits, Takacs McGinnis is here to help. Just give our office a call.