Veterans Exposed to Agent Orange: Legislative History, Litigation, and Current Issues
Congressional research reportNov 18, 2014
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Veterans Exposed to Agent Orange:
Legislative History, Litigation, and
Current Issues
/name redacted/
Specialist in Veterans Policy
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Legislative Attorney
November 18, 2014
Congressional Research Service
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R43790
Veterans Exposed to Agent Orange: Legislative History, Litigation, and Current Issues
Summary
The U.S. Armed Forces used a variety of chemical defoliants to clear dense jungle land in
Vietnam during the war. Agent Orange (named for the orange-colored identifying stripes on the
barrels) was by far the most widely used herbicide during the Vietnam War. Many Vietnam-era
veterans believe that their exposure to Agent Orange caused them to contract several diseases and
caused certain disabilities, including birth defects in their children, and now their grandchildren.
The Department of Veterans Affairs (VA) received the first claims asserting conditions related to
Agent Orange in 1977. Since then, Vietnam-era veterans have sought relief from Congress and
through the judicial system. Beginning in 1979, Congress enacted several laws to determine
whether exposure to Agent Orange in Vietnam was associated with possible long-term health
effects and certain disabilities. The Veterans’ Health Care, Training and Small Business Loan Act
(P.L. 97-72) elevated Vietnam veterans’ priority status for health care at VA facilities by
recognizing a veteran’s own report of exposure as sufficient proof to receive medical care, absent
evidence to the contrary. The Veterans’ Health Care Eligibility Reform Act of 1996 (P.L. 104-262)
completely restructured the VA medical care eligibility requirements for all veterans. Under P.L.
104-262, a veteran does not have to demonstrate a link between a certain health condition and
exposure to Agent Orange; instead, medical care is provided unless the VA determines that the
condition did not result from exposure to Agent Orange. This authority was permanently
authorized by the Caregivers and Veterans Omnibus Health Services Act of 2010 (P.L. 111-163).
Likewise, Congress passed several measures to address disability compensation issues affecting
Vietnam veterans. The Veterans’ Dioxin and Radiation Exposure Compensation Standards Act of
1984 (P.L. 98-542) required the VA to develop regulations for disability compensation to Vietnam
veterans exposed to Agent Orange. In 1991, the Agent Orange Act (P.L. 102-4) established a
presumption of service connection for diseases associated with herbicide exposure. P.L. 102-4
authorized the VA to contract with the Institute of Medicine (IOM) to conduct scientific reviews
of the evidence linking certain medical conditions to herbicide exposure. Under this law, the VA
is required to review the reports of the IOM and issue regulations, establishing a presumption of
service connection for any disease for which there is scientific evidence of a positive association
with herbicide exposure. Based on these IOM reports, currently 15 health conditions are
presumptively service-connected.
Under current regulations, a servicemember must have actually set foot on Vietnamese soil or
served on a craft in its rivers (also known as “brown water” veterans) to be entitled to the
presumption of exposure to Agent Orange. Those who served aboard deep-water naval vessels
(commonly referred to as “Blue Water Navy” veterans) do not qualify for presumption of service
connections for herbicide-related conditions unless they can prove that the veteran’s service
included duty or visitation within the country of Vietnam itself, or on its inland waterways.
Recently, Vietnam-era veterans have increasingly expressed concerns about all types of medical
issues occurring in their children, regardless of age, and in successive generations. Furthermore,
they have asserted that more research should be done on paternally mediated birth effects, so that
compensation policies might be developed similar to those that address maternally mediated birth
effects of Vietnam-era progeny.
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Veterans Exposed to Agent Orange: Legislative History, Litigation, and Current Issues
Contents
Introduction...................................................................................................................................... 1
What Is “Agent Orange”? ................................................................................................................ 1
Movement to Obtain Compensation and Health Care for Agent Orange Exposure ........................ 2
Legislative Track ............................................................................................................................. 4
Health Care Services ................................................................................................................. 4
Disability Compensation ........................................................................................................... 4
Judicial Track ................................................................................................................................... 6
Nehmer v. U.S. Veterans’ Administration................................................................................... 7
Clarifying the Scope of Nehmer .......................................................................................... 8
Nehmer Claims and the Sunset Provision of the Agent Orange Act ................................... 8
Blue Water Veteran Litigation ................................................................................................... 9
Haas v. Nicholson .............................................................................................................. 10
Haas v. Peake .................................................................................................................... 10
Current Issues ................................................................................................................................ 11
Veterans Potentially Exposed to Agent Orange in Areas Outside Vietnam ............................. 11
Paternally Mediated Birth Defects .......................................................................................... 13
Disability Compensation and Health Care for Later Generations ........................................... 14
Tables
Table A-1. Summary of Major Health Care Legislation for Vietnam-Era Veterans
and Their Offspring .................................................................................................................... 15
Table B-1. Diseases and Conditions Presumptively Service-Connected with Exposure to
Agent Orange .............................................................................................................................. 19
Table B-2. Diseases and Conditions Not Presumed to Be Service-Connected to Agent
Orange ........................................................................................................................................ 21
Appendixes
Appendix A. Health Care Legislation for Vietnam Veterans ......................................................... 15
Appendix B. Diseases and Conditions Presumed/Not Presumed to Be Service-Connected
with Exposure to Agent Orange .................................................................................................. 19
Contacts
Author Contact Information........................................................................................................... 22
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Veterans Exposed to Agent Orange: Legislative History, Litigation, and Current Issues
Introduction
Almost four decades since the end of the Vietnam War, the controversy surrounding the spraying
of an herbicide known as “Agent Orange” and the exposure of Vietnam-era veterans to this
herbicide continues. Since the late 1970s, Vietnam-era veterans have voiced concerns about how
exposure to Agent Orange may have affected their health and caused certain disabilities,
including birth defects in their children, and now their grandchildren.1 The Department of
Veterans Affairs (VA) received the first claims asserting conditions related to Agent Orange in
1977. Since then, Vietnam-era veterans have made efforts to obtain disability compensation and
health care from Congress and through the judicial system. In response to issues raised by
Vietnam-era veterans, Congress has passed legislation to research the long-term health effects of
Agent Orange on Vietnam veterans and to provide benefits and services to those who may have
been exposed to it. In addition, the courts have addressed some concerns of Vietnam-era
veterans.2
This report provides an overview of how Congress and the judiciary have addressed the concerns
of Vietnam-era veterans and briefly describes some of the current issues raised by Vietnam-era
veterans. This report should be read in conjunction with CRS Report R41405, Veterans Affairs:
Presumptive Service Connection and Disability Compensation.
The first part of the report discusses previous legislative efforts to address health care and
disability compensation issues of Vietnam-era veterans exposed to Agent Orange. The second part
discusses litigation pertaining to Agent Orange. The last part of the report briefly addresses
current major issues related to Agent Orange and Vietnam-era veterans. In addition, the
appendixes contain three tables. Table A-1 provides a summary of congressional action related to
health care for Vietnam-era veterans. Table B-1 provides a list of diseases and conditions that are
presumptively service-connected with exposure to Agent Orange. Lastly, Table B-2 provides a
list of diseases and conditions not presumed to be service-connected.
What Is “Agent Orange”?
As part of a military strategy to remove foliage that provided cover for the enemy, to destroy
enemy crops, and to destroy tall grasses and bushes from the perimeters of U.S. military bases,
the U.S. military—from 1962 to 1971—sprayed tactical herbicides in combat military operations
in Vietnam.3 The U.S. Air Force sprayed nearly 19 million gallons of herbicides in Vietnam, of
1
Vietnam Veterans of America, Vietnam Veterans of America Legislative Agenda & Policy Initiatives: 113th Congress,
February 2014, http://vva.org/GovAffairs/VVALegAgenda.pdf. Also see The Vietnam Experience Study conducted by
the Centers for Disease Control and Prevention (CDC): “[D]uring the telephone interview, Vietnam veterans reported
current and past health problems more frequently than did non-Vietnam veterans. The Vietnam veterans also reported
more health problems among their children, including more birth defects, and more problems with impaired fertility.”
http://www.cdc.gov/nceh/veterans/default1c.htm.
2
Vietnam-era is defined as “the period beginning on February 28, 1961, and ending on May 7, 1975, in the case of a
veteran who served in the Republic of Vietnam during that period. In all other cases it is the period beginning on
August 5, 1964, and ending on May 7, 1975” (38 C.F.R. §3.2).
3
“In late 1961, a test program for evaluating tactical herbicides for vegetation control in South Vietnam was approved
for the Air Force. With the full concurrence and support of the Republic of Vietnam and the Vietnamese Air Force, a
project under the code name operation RANCH HAND was initiated. Operation RANCH HAND was the USAF [U.S.
Air Force] operation responsible for the tactical fixed-wing aerial application of herbicides from UC-123 Aircraft.
(continued...)
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Veterans Exposed to Agent Orange: Legislative History, Litigation, and Current Issues
which at least 11 million gallons were Agent Orange—making it the most widely used herbicide
in the war.4 “Agent Orange (so named because of orange color stripes on the barrels used to store
and ship the chemical) was a 50-50 mixture of the herbicides 2,4,5-T and 2,4-D.”5 This mixture
was contaminated with varying concentrations of numerous dioxins, including 2,3,7,8tetrachlorodibenzo-pdioxin (TCDD) during the manufacturing process.6 This contaminant was
shown to be highly toxic in animals, and it was implicated in birth defects seen in mice. However,
its effects on humans have not been fully understood. It is important to note that “Agent Orange”
and “dioxin” are not the same.7 For simplicity the term Agent Orange is used throughout this
report.
Spraying of Agent Orange occurred over inland forests at the junction of the borders of
Cambodia, Laos, and South Vietnam; inland jungles north and northwest of Saigon; mangrove
forests on the southernmost peninsula of Vietnam; and mangrove forests along major shipping
channels southeast of Saigon.8
Movement to Obtain Compensation and Health
Care for Agent Orange Exposure
Initially, the Department of Defense (DOD) maintained that only a limited number of U.S.
military personnel could be positively identified as having been exposed to Agent Orange in
South Vietnam (e.g., the crews of aircraft that were used to spray herbicides). However, following
the publication of a 1979 General Accounting Office (GAO, now called Government
Accountability Office) report documenting ground troop exposure, DOD acknowledged that
ground troops were also exposed to Agent Orange.9 Likewise, the Department of Veterans Affairs
(...continued)
Operation RANCH HAND began 7 January 1962, and terminated 7 January 1971.” (See Alvin L. Young, The History
of the US Department of Defense Programs for the Testing, Evaluation, and Storage of Tactical Herbicides, U.S.
Department of Defense, December 2006, p. 8.)
4
The different types of herbicide used by U.S. forces in Vietnam were identified by a code name referring to the color
of the band around the 55-gallon drum that contained the chemical. These included Agents Orange, White, Blue,
Purple, Pink, and Green. From 1962 to 1965, small quantities of Agents Purple, Pink, and Green were used in the
defoliation program (National Academy of Sciences, Institute of Medicine, Veterans and Agent Orange: Health Effects
of Herbicides Used in Vietnam, Washington, DC, 1994, p. 27).
5
National Academy of Sciences, Institute of Medicine, Characterizing Exposure of Veterans to Agent Orange and
Other Herbicides Used in Vietnam: Scientific Considerations Regarding a Request for Proposals for Research,
Washington, DC, 1997, p. 2. 2,4,5-T means 2,4,5-trichlorophenoxyacetic acid, and 2,4-D means 2,4dichlorophenoxyacetic acid.
6
Ibid.
7
When reviewing and evaluating the available scientific evidence, the Institute of Medicine (IOM) of the National
Academy of Sciences (NAS) reviews the statistical association between exposure to dioxin or to the herbicides used in
Vietnam and various adverse health outcomes, and does not specifically review and evaluate the available scientific
evidence regarding the statistical association between exposure to “Agent Orange” used in Vietnam and various
adverse health outcomes. This comprehensive review by the IOM has been repeated at least every two years since 1994
and is authorized to continue until December 31, 2015. (The Department of Veterans Affairs Expiring Authorities Act
of 2014 [P.L. 113-175] extended this authority until 2015.) Veterans and Agent Orange reviews by the IOM weigh the
strengths and limitations of the complete body of epidemiologic evidence on herbicide exposure and manifestation of
certain health outcomes.
8
U.S. Department of Veterans Affairs, Agent Orange Claims - A Review RVSR Handout, May 2010, p. 7.
9
U.S. General Accounting Office, U.S. Ground Troops in South Vietnam Were in Areas Sprayed with Herbicide
(continued...)
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(VA) consistently took the position that because the long-term exposure to Agent Orange was
unclear, and because of scientific uncertainty of the evidence linking Agent Orange to specific
illnesses, it could not compensate veterans who alleged that exposure to Agent Orange had caused
their diseases. In testifying before the House Committee on Veterans’ Affairs, the then
Administrator of Veterans Affairs stated:
Unless or until some such latent effects of Agent Orange or its derivative components are
scientifically documented there are intrinsic limitations to VA’s authority to allow these
[Agent Orange] claims under current law. Though I cannot emphasize enough our policy to
resolve reasonable doubt as to service incurrence of disabilities in favor of claimants, there is
currently no medical basis upon which adverse health effects of late-post-exposure onset can
be reasonably tied to Agent Orange.10
In December 1979, Congress passed the Veterans Health Programs Extension and Improvement
Act of 1979 (P.L. 96-151) and directed the VA to investigate the long-term effects of dioxin
exposure during the Vietnam War. In 1981, Congress passed the Veterans’ Health Care, Training,
and Small Business Loan Act of 1981 (P.L. 97-72) and required the VA to include the study of
other environmental exposures that may have occurred during the Vietnam conflict. However, the
VA never designed a protocol for conducting the study, and responsibility for conducting the
study was transferred to the Centers for Disease Control and Prevention (CDC). In 1987, the
CDC ceased attempts to produce a study and never released any findings.11 Although Vietnam-era
veterans continued to urge Congress to establish policies for health care and disability
compensation (see text box “Eligibility for Health Care and Disability Compensation”) for Agent
Orange exposure, a lack of a substantial, scientific consensus on the potential health effects of
Agent Orange in Vietnam veterans and their offspring impeded those efforts.
Eligibility for Health Care and Disability Compensation
Health Care
The Department of Veterans Affairs (VA), through the Veterans Health Administration (VHA), operates the nation’s
largest integrated direct health care delivery system. Veterans' medical care is a discretionary program, and eligibility
for VA medical care is based on an array of factors including (but not limited to) veteran status, presence of serviceconnected disabilities or exposures (such as Agent Orange), income, status as a former prisoner of war (POW) or
Purple Heart or Medal of Honor recipient.
Disability Compensation
A veteran may be eligible for disability compensation if (1) the veteran is disabled resulting from personal injury
suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease
contracted in the line of duty, in the active military, naval, or air service, during a period of war and (2) if the veteran
was discharged or released under conditions other than dishonorable from the period of service in which the injury
was incurred. In general, to establish service connection for a disability, a veteran must submit (1) medical evidence of
a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or
aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the inservice disease or injury.
(...continued)
Orange, FBCD 80-23, 1979, http://archive.gao.gov/f0302/110930.pdf.
10
Statement of Max Cleland, Administrator of Veterans’ Affairs in U.S. Congress, House Committee on Veterans’
Affairs, Subcommittee on Medical Facilities and Benefits, Oversight Hearing to Receive Testimony on Agent Orange,
96th Cong., 2nd sess., February 25, 1980 (Washington: GPO, 1980), p. 11.
11
James D. Ridgway, “The Splendid Isolation Revisited: Lessons from the History of Veterans’ Benefits Before
Judicial Review,” Veterans Law Review, vol. 3 (2011), p. 207.
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For more information on VA health care eligibility, see CRS Report R42747, Health Care for Veterans: Answers to
Frequently Asked Questions, by (name redacted) and (name redacted).
For more information disability compensation, see CRS Report RL34626, Veterans’ Benefits: Disabled Veterans, by (name
redacted) et al.
Since the late 1970s and early 1980s, disability compensation policies and health care for possible
adverse health outcomes pertaining to veterans exposed to Agent Orange have proceeded on two
parallel tracks: through legislation and through the judicial system.12
Legislative Track
Health Care Services
In April 1970, Congress held the first of many hearings on the health effects of Agent Orange.13
Policy makers began to address the health concerns of Vietnam-era veterans in 1981 with the
passage of the Veterans’ Health Care, Training and Small Business Loan Act (P.L. 97-72). Since
the enactment of P.L. 97-72, Congress has from time to time passed legislation to provide medical
care to veterans—and to some of their offspring—who may have been exposed to Agent Orange.
In particular, Congress has addressed specific health care concerns of male and female Vietnamera veterans. These concerns typically involve adverse reproductive effects. For instance, for male
veterans, service in Vietnam has been associated with one particular adverse reproductive
outcome: spina bifida.14 However, among female veterans, Vietnam service has been associated
with the risk of having children with a wide range of birth defects.15 Therefore, special programs
have been established based on gender. Table A-1 summarizes major legislation pertaining to
health care for Vietnam-era veterans who served in Vietnam or other select locations.
Disability Compensation
In general, Congress has passed legislation to provide health care to Vietnam-era veterans and,
when warranted, their children—even though according to the Institutes of Medicine (IOM)16
there was no definitive scientific evidence showing that the disorders treated were related to the
exposure. Nevertheless, for the purposes of disability compensation, Congress and the VA have
relied on scientific evidence concerning Agent Orange exposure during Vietnam service and
12
It should be noted that some Vietnam-era veterans filed a class action lawsuit against several chemical companies
claiming liabilities for disabilities that veterans believe were caused by exposure to herbicides used in Vietnam that
were manufactured by these companies for military use. A discussion of this lawsuit is beyond the scope of this report.
13
U.S. Congress, Senate, Committee on Commerce, Subcommittee on Energy, Natural Resources, and the
Environment, Effects of 2,4,5-T and Related Herbicides on Man and the Environment, 91st Cong., 2nd sess., April 7,
1970 (Washington: GPO, 1970).
14
National Academy of Sciences, Institute of Medicine, Veterans and Agent Orange: Update 1996, Washington, DC,
1996, p.10, found an association between herbicide exposure in Vietnam and an increased risk of spina bifida in
children.
15
Han Kang et al., “Pregnancy Outcomes Among U.S. Women Vietnam Veterans,” American Journal of Industrial
Medicine, vol. 38, no. 4 (October 2000), pp. 447-454.
16
National Academy of Sciences, Institute of Medicine, Veterans and Agent Orange: Health Effects of Herbicides
Used in Vietnam, Washington, DC, 1994, p.50.
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diseases and conditions suspected to be associated with such exposure. Since the 1980s, two
major laws have affected disability compensation policies of Vietnam-era veterans exposed to
Agent Orange.
The Veterans’ Dioxin and Radiation Exposure Compensation Standards Act of 1984 (P.L. 98-542)
required the VA to develop regulations for disability compensation to Vietnam veterans who may
have been exposed to Agent Orange. Veterans seeking compensation for a condition they thought
to be related to herbicide exposure had to provide proof of a service connection that established
the link between herbicide exposure and disease onset. P.L. 98-542 authorized disability
compensation payments to Vietnam veterans for the skin condition chloracne, which is associated
with herbicide exposure.
In 1991, the Agent Orange Act (P.L. 102-4)17 established a presumption of service connection for
diseases associated with herbicide exposure (see text box “What is Presumption of Service
Connection ?”).18 The act directed the VA to “prescribe regulations providing that a presumption
of service connection is warranted for [a] disease”19 when a positive statistical association exists
between Agent Orange exposure and the occurrence of that disease in humans.20 In making this
determination, P.L. 102-4 authorized the VA to contract with the Institute of Medicine (IOM) of
the National Academy of Sciences (NAS) to review and summarize the scientific evidence
concerning the association between exposure to herbicides used in support of military operations
in Vietnam during the Vietnam era and each disease suspected to be associated with such
exposure. P.L. 102-4 mandated that IOM determine, to the extent possible, (1) whether there is a
statistical association between the suspect diseases and herbicide exposure, taking into account
the strength of the scientific evidence and the appropriateness of the methods used to detect the
association; (2) the increased risk of disease among individuals exposed to herbicides during
service in Vietnam during the Vietnam era; and (3) whether there is a plausible biological
mechanism or other evidence of a causal relationship between herbicide exposure and the health
outcome.21
What Is Presumption of Service Connection?
The application of statutory presumptions is one way the law helps veterans seek compensation for serviceconnected disabilities. In the context of the adjudication of VA compensation claims, a presumption relieves the
veteran of the burden of producing evidence that directly establishes service connection for a specific condition. For
example, if a veteran can show he served at a particular place and time, and later incurred a certain type of illness, the
law will presume the illness was connected to military service. In other words, the onus is placed on the VA to show
lack of connection. Congress and the VA have used presumptions to implement policy when scientific certainty
17
Codified at 38 U.S.C. §1116.
For a broader discussion of presumptive service connection, see CRS Report R41405, Veterans Affairs: Presumptive
Service Connection and Disability Compensation, by (name redacted), (name redacted), and (name redact
ed).
19
38 U.S.C. §1116(b).
20
Ibid.
21
This comprehensive review by the IOM has been repeated at least every two years since 1994 and is authorized to
continue until December 31, 2015. (The Department of Veterans Affairs Expiring Authorities Act of 2014 [P.L. 113175] extended this authority until 2015.) Veterans and Agent Orange weighs the strengths and limitations of the
complete body of epidemiologic evidence on herbicide exposure and manifestation of certain health outcomes. This
review then assigns the investigated medical conditions to one of four categories ranging from “sufficient evidence of
an association” to “limited or suggestive evidence of no association.” The latest update was based on studies published
between October 2010 and September 2012, and was released in December 2013, available at http://www.iom.edu/
Reports/2013/Veterans-and-Agent-Orange-Update-2012.aspx.
18
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cannot be achieved in a timeframe necessary to address compensation of veterans for their health problems. Most
presumptions are applied to chronic diseases or illnesses that manifest after a period of time following military
service.
Sources: CRS Report R41405, Veterans Affairs: Presumptive Service Connection and Disability Compensation; and U.S.
Congress, Senate Committee on Veterans’ Affairs, VA Disability Compensation: Presumptive Disability Decision-Making,
111th Cong., 2nd sess., September 23, 2010 (Washington: GPO, 2011), p. 19.
The law requires the VA, within 60 days of receiving a report from IOM regarding the
relationship between exposure to herbicides used in Vietnam during the Vietnam War and certain
diseases, to consider whether a presumption of service connection is warranted for any of the
diseases discussed in the report, as well as all other available sound medical and scientific
information.22 Within 60 days of making such a determination, the VA is required to issue
proposed regulations setting forth that determination. Within 90 days of issuing the proposed
regulations, the VA must issue final regulations establishing a presumption of service connection
for any disease for which there is scientific evidence of a positive association with herbicide
exposure.23 Once the VA has established a presumption of service connection for a certain disease
or medical condition, a veteran who, during active military, naval, or air service, served in the
Republic of Vietnam (or its inland waterways) during the Vietnam era shall be presumed to have
been exposed during such service to Agent Orange, and a service connection for that disease or
condition will be granted. Those who did not serve in in the Republic of Vietnam or its inland
waterways could still establish service connection on a direct basis.24 Based on the most recent
IOM report, “Veterans and Agent Orange: Update 2012,” the VA decided not to establish any new
presumptions. Table B-1 provides a list of diseases and conditions that are presumptively serviceconnected. The VA’s authority to issue regulations establishing additional presumptions of service
connection for diseases found to be associated with Agent Orange exposure will expire on
September 30, 2015.25
The Agent Orange Act of 1991 (P.L. 102-4) also mandated the VA to publish a notice when the
VA determines that a presumption of service connection is not warranted.26 On April 11, 2014,
based on the 2010 and 2012 IOM reports on Agent Orange, the VA issued a notice that a
presumption of service connection is not warranted for certain diseases and conditions based on
exposure to herbicides used in Vietnam during the Vietnam era. Table B-2 provides a list of
diseases and conditions that are not presumptively service-connected.
Judicial Track
With regard to Agent Orange exposure and disability compensation, litigation has largely focused
on two questions. First, which diseases are presumed to be caused by exposure to Agent Orange?
Second, which veterans have been presumptively exposed to Agent Orange? These questions
22
38 U.S.C. §1116(b)(2) .
38 U.S.C. §1116(c)(1)(A) and §1116(c)(2).
24
38 U.S.C. §1110 and 38 CFR 3.303(d).
25
38 U.S.C. §1116(e); (Section 201(d) of The Veterans Education and Benefits Expansion Act of 2001 (P.L. 107-103),
extended VA’s authority under Title 38 U.S.C. §1116(b) through September 30, 2015).
26
38 U.S.C. §1116(b) and (c).
23
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have been resolved by two lines of cases. Nehmer27 claims involve which diseases are presumed
to be caused by exposure to Agent Orange, and Haas28 claims involve which veterans have been
presumptively exposed to the herbicide. This section provides a discussion of the laws,
regulations, and court decisions that have emerged from these cases.
Nehmer v. U.S. Veterans’ Administration
In 1986, numerous Vietnam veterans brought a class action lawsuit against the VA, arguing that
their previous claims for service-connected compensation for disabilities allegedly caused by
exposure to Agent Orange were improperly denied.29 At the time, the VA had promulgated a rule
that found only one disease, chloracne, associated with exposure to Agent Orange.30 When
promulgating this rule under the Veterans’ Dioxin and Radiation Exposure Compensation
Standards Act,31 the VA had used a stringent “cause and effect” test for determining which
diseases would be associated with Agent Orange exposure.32 The veterans argued that the “cause
and effect” standard was too stringent and contrary to the legislative intent of Congress.33 In
1989, the U.S. District Court for the Northern District of California agreed and declared that the
VA was required to use a more lenient “significant statistical association” standard when
determining whether a disease is associated with Agent Orange exposure.34 The court invalidated
the VA regulations and voided all benefit denials made under those regulations.35 In response to
this court decision, Congress enacted the Agent Orange Act of 1991 in February of that year.36
After the enactment of the Agent Orange Act of 1991, the parties from Nehmer entered into a
Final Stipulation and Order (Final Stipulation) that established the actions that the VA would take
in response to the 1989 court decision.37 Most notably, the VA was required to issue new
regulations regarding which diseases are associated with exposure to dioxin38 under the Agent
Orange Act of 1991 and then readjudicate the claims that were previously denied by the VA under
the invalid regulations.39 The Final Stipulation also stated that any benefits awarded upon such
readjudication or adjudication shall be paid retroactively.40 Generally, when claims are awarded
based on a new regulation, the effective date of the award can be no earlier than the date in which
27
Nehmer v. U.S. Veterans’ Admin., 712 F. Supp. 1404 (N.D. Cal. 1989).
Haas v. Nicholson, 20 Vet. App. 257 (2006).
29
Nehmer v. U.S. Veterans’ Admin., 712 F. Supp. 1404 (N.D. Cal. 1989).
30
Id. at 1408. The VA’s rule stated that “sound scientific and medical evidence does not establish a cause and effect
relationship between dioxin exposure” and any other disease except for chloracne. Id.
31
P.L. 98-542.
32
Nehmer v. U.S. Veterans’ Admin., 712 F. Supp.1404, 1409 (N.D. Cal. 1989).
33
Id.
34
Id. at 1420.
35
Id. at 1423.
36
P.L. 102-4, 105 Stat. 11 (1991).
37
DEPARTMENT OF VETERANS AFFAIRS, NEHMER TRAINING GUIDE 7 (February 10, 2011).
38
Dioxin is the toxic ingredient found in Agent Orange and other similar herbicides.
39
See Nehmer v. U.S. Veterans’ Admin., 32 F. Supp. 2d 1175, 1177 (N.D. Cal. 1999).
40
Id.
28
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the regulation came into effect; however, under the Final Stipulation, the effective date would be
either the date the claim was filed or the date the disability arose, whichever was later.41
Clarifying the Scope of Nehmer
Following the Final Stipulation, the VA began to readjudicate the voided Agent Orange claims.
However, the VA established a policy only to readjudicate claims in which the veteran had
specifically alleged Agent Orange to be the cause of disease.42 The veterans again sued the VA,
and in February 1999, the court clarified which compensation claims were voided by the 1989
decision.43 The court again agreed with the veterans and struck down the VA’s policy. The court
noted that the 1989 decision “voided those decisions in which the disease or cause of death is
later found – under valid Agent Orange regulation(s) – to be service connected.”44 Therefore, the
1989 decision voided all VA decisions in which the disease or condition is later found to be
associated with Agent Orange, regardless of whether the veterans specifically alleged that their
diseases were caused by Agent Orange.45 Finally, later litigation clarified that the VA must pay the
full retroactive benefit to the estates of deceased class members.46
Nehmer Claims and the Sunset Provision of the Agent Orange Act
In 2001, Congress extended the sunset date of the Agent Orange Act from September 30, 2002, to
September 30, 2015, thus requiring the Secretary to continue issuing regulations designating
service-connected diseases in response to scientific reports.47 In 2003, the VA found Chronic
Lymphocytic Leukemia (CLL) to be associated with Agent Orange exposure.48 However, the VA
did not readjudicate the prior claims of Vietnam veterans suffering from CLL and did not pay
them retroactive benefits.49 The VA contended that the Final Stipulation did not apply to diseases
that it determined to be service-connected after September 30, 2002, the original sunset date of
the Agent Orange Act of 1991.50 In 2004, the plaintiff class, disputing this interpretation, filed a
motion for clarification and enforcement of the Final Stipulation as to disease determinations
made after September 30, 2002.
In 2005, the court again agreed with the veterans and rejected the VA’s interpretation.51 The court
stated that the extension of the sunset provision also extended the duration of the Final
Stipulation.52 Therefore, so long as diseases are determined to be associated with dioxin under the
41
Id.
Id. at 1177-78 (N.D. Cal. 1999).
43
Id.
44
Id. at 1183.
45
Id. at 1182-83.
46
Nehmer v. Veterans’ Administration of the Government of the United States, 284 F.3d 1158, 1162-63 (9th Cir. 2002).
47
Veterans Education and Benefits Expansion Act of 2001, P.L. 107-103, §201.
48
Disease Associated with Exposure to Certain Herbicide Agents: Chronic Lymphocytic Leukemia, 68 Federal
Register 14567, 14569 (March 26, 2003).
49
Nehmer v. U.S. Department of Veterans Affairs, 494 F.3d 846, 855 (9th Cir. 2007).
50
Id. at 862.
51
Id. at 855.
52
The court noted that the “Stipulation and Order contains no hard deadline” and “does not cite the 10 year sunset
provision of the Agent Orange Act.” Id. at 862.
42
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Agent Orange Act, the VA is required to readjudicate any previously denied claims for those
conditions. The U.S. Court of Appeals for the Ninth Circuit in 2007 upheld the decision53 and
ordered the VA to reajudicate all prior claims related to CLL and to provide retroactive benefits
on such claims.
On October 13, 2009, after reviewing an independent study by the Institute of Medicine, the VA
announced that three additional conditions would be granted presumptive service connection as
associated with exposure to Agent Orange.54 On August 31, 2010, the VA published the final rule
in the Federal Register, officially adding B-cell leukemias (such as hairy cell leukemia),
Parkinson’s disease, and ischemic heart disease to the list of conditions associated with exposure
to dioxin.55 Because these conditions were added pursuant to the Agent Orange Act, which does
not expire until 2015, the VA is required to readjudicate any claims previously denied for these
conditions in order to comply with the Nehmer Final Stipulation.56
Blue Water Veteran Litigation
According to the Agent Orange Act of 1991, certain veterans of Vietnam have been presumptively
exposed to Agent Orange.57 If a veteran falls within such a presumption, he does not have the
burden of proving that he was actually exposed to the herbicide in order to obtain disability
compensation. According to the statute, if a veteran proves that he “served in the Republic of
Vietnam” between January 9, 1962, and May 7, 1975, any disease determined to be associated
with exposure to Agent Orange will “be considered to have been incurred in or aggravated by” his
service in Vietnam.58
The VA has interpreted this statutory language to include only veterans who have actually set foot
on the landmass of Vietnam or served in the inland waterways of Vietnam (veterans who served
in the inland waterways are generally known as “brown water” veterans).59 Veterans who served
on ships that remained off the coast of Vietnam (generally referred to as “Blue Water Navy”
veterans) do not satisfy the test and are not considered to be presumptively exposed to Agent
Orange.60 This interpretation of the statute was challenged in court. Although the Court of
Appeals for Veterans Claims (CAVC) found the VA’s interpretation to be invalid,61 the Court of
Appeals for the Federal Circuit overturned the CAVC’s decision and, therefore, the VA’s “foot-onland” test remains the current standard.62 The following section provides the details of the
litigation.
53
Nehmer v. U.S. Department of Veterans Affairs, 494 F.3d 846 (9th Cir. 2007).
54
See 75 Federal Register 53202 (August 31, 2010).
55
Id.
56
See Nehmer v .U.S. Department of Veterans Affairs, 494 F.3d 846 (9th Cir. 2007).
57
38 U.S.C. §1116(a)(1).
58
Id.
59
See 38 C.F.R. §3.307(a)(6)(iii).
60
Blue water veterans can still receive disability compensation; however, to do so, they must provide evidence that
shows they were actually exposed to the herbicide.
61
Haas v. Nicholson, 20 Vet. App. 257 (2006).
62
Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008).
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Haas v. Nicholson
In 2001, a Vietnam veteran, Jonathan Haas, applied for disability compensation for Type 2
Diabetes allegedly caused by his exposure to Agent Orange.63 Mr. Haas claimed that he was
entitled to a presumptive service connection because he “served in the Republic of Vietnam.”64
Mr. Haas never physically went ashore to Vietnam but instead served on a U.S. vessel that
remained off the coast during his service. Both the VA Regional Office and the Board of Veterans’
Appeals (BVA) denied Mr. Haas the presumption of service connection, stating that a veteran
must have actually “set foot on land in the Republic of Vietnam” to qualify for a presumption of
service connection for exposure to Agent Orange.65 Mr. Haas appealed the decisions to the
CAVC, arguing that his service off the coast of Vietnam should entitle him to a presumptive
service connection based on his “service in the Republic of Vietnam.”66
In 2006, the CAVC agreed with Mr. Haas and overturned the BVA’s decision. The CAVC found
the regulation to be ambiguous and determined that the current interpretation conflicted with the
agency’s earlier interpretations.67 Furthermore, the court stated that the VA could not make such a
change in its interpretation without undertaking proper notice and comment rulemaking
procedures.68 The CAVC also found the “foot-on-land” test to be an unreasonable interpretation
of the law, and stated that there could be “the same risk of exposure” for veterans who served on
ships near the coast.69
As a result of the CAVC’s ruling, the VA directed the BVA to stay all proceedings involving
Agent Orange exposure claims of veterans who only served on ships off the coast of Vietnam.70
The VA also published a notice of proposed rulemaking in the Federal Register declaring its
intent to clarify its interpretation.71 Finally, the VA also appealed the CAVC’s decision to the U.S.
Court of Appeals for the Federal Circuit.
Haas v. Peake
On appeal, the case name was changed to Haas v. Peake after James Peake became the Secretary
of Veterans Affairs. The U.S. Court of Appeals for the Federal Circuit reversed the decision of the
CAVC, ruling in favor of the VA.72 As a result of this decision, the VA still maintains its “foot-onland” policy for a Vietnam veteran to qualify for a presumption of exposure to Agent Orange.73
Although “Blue Water” veterans can still receive compensation for Agent Orange exposure if they
63
Haas v. Nicholson, 20 Vet. App. 257, 260 (2006).
Id.
65
Id. at 259.
66
Id.
67
Id. at 269–72.
68
Id. at 275–78.
69
Id. at 272–73.
70
Memorandum No. 01-06-24, Subj: Processing of Claims for Compensation Based on Exposure to Herbicides
Affected by Haas v. Nicholson—Imposition of Stay. Available at http://www.bluewaternavy.org/vastaymemo.htm.
71
See 72 Federal Register 66218 (November 27, 2007).
72
Haas v. Peake, 525 F.3d 1168 (2008).
73
See 38 C.F.R. §3.307(a)(6)(iii).
64
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prove they were actually exposed to Agent Orange, they will not receive a presumption of
exposure due to their service.
Throughout its opinion, the court reversed each basis of the CAVC’s ruling. The court stated that
the agency’s interpretation of the statute was due deference under the Chevron doctrine.74 The
court found the “foot-on-land” rule to be a reasonable interpretation of the statute, noting that
Congress had been silent regarding the scope of the statutory language, and stated that the VA’s
interpretation was a reasonable line to draw.75 The court also noted that the agency had
consistently applied this interpretation for an extended period of time.76 Finally, the court declared
that because this was an interpretive rule, not a substantive rule, the agency did not have to follow
notice and comment rulemaking procedures when promulgating its interpretation.77 Therefore,
there was no violation of the Administrative Procedure Act.78 The court reversed the CAVC
decision and remanded the case. Although it ruled in favor of the VA, the court noted that Mr.
Haas was free to “pursue his claim that he was actually exposed to herbicides while on board his
ship.... However, he [was] not entitled to the benefit of the presumptions set forth in [the Agent
Orange Act of 1991].”79 The Supreme Court of the United States denied certiorari on Mr. Haas’s
appeal.80
Current Issues
Currently, three major issues pertain to Vietnam-era veterans and their exposure to Agent Orange:
(1) providing presumptive service-connected disability compensation for those who served in the
waters surrounding Vietnam and in other areas that Agent Orange may have been stored or used;
(2) providing disability compensation and health care for paternally mediated birth defects;81 and
(3) researching and providing disability compensation and health care services to biological
grandchildren and later generations of Vietnam-era veterans. Each of the three issues is briefly
discussed in detail.
Veterans Potentially Exposed to Agent Orange in Areas
Outside Vietnam
Under current law, veterans who have diseases or conditions listed in Table B-1 are entitled to
service-connected disability compensation as long as they (1) stepped foot on land in Vietnam or
74
Id. at 1186; Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).
Id. at 1193 (“In our view, it was not arbitrary for the agency to limit the presumptions of exposure and service
connection to servicemembers who had served, for some period at least, on land. Drawing a line between service on
land, where herbicides were used, and service at sea, where they were not, is prima facie reasonable.”).
76
Id.
77
Id. at 1196.
78
Id.
79
Id. at 1197.
80
Haas v. Peake, 555 U.S. 1149 (2009).
81
Associates of Vietnam Veterans of America (AVVA), “Paternally Mediate Birth Defects,” Presentation Before the
IOM Committee to Review the Health Effects in Veterans of Exposure to Herbicides, January 16, 2013,
http://www.iom.edu/~/media/Files/Activity%20Files/Veterans/AgentOrangeNinthUpdate/Mtg%204%20Presentations/
Elayne%20Mackey%20Statement.pdf.
75
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(2) served on the inland waterways of Vietnam during active duty at any time between January 9,
1962, and May 7, 1975. Other veterans who have an Agent Orange-related disease or condition
are entitled to these benefits if they can prove they were exposed to Agent Orange during active
duty service. However, there are some exceptions to this general requirement (see text box on
“Presumption of Exposure to Agent Orange in Veterans who served in Korea”).
Presumption of Exposure to Agent Orange in Veterans Who Served in Korea
On January 25, 2011, VA issued final regulations that took effect as of February 24, 2011, establishing a presumption
of herbicide exposure for veterans who served in the active military, naval, or air service in or near the Korean
demilitarized zone (DMZ), as determined by VA and Department of Defense (DOD) during the period beginning on
September 1, 1967, and ending on August 31, 1971. When service records show that a veteran was assigned to one
of the units identified by DOD, during the time frame of tactical herbicide use, the veteran qualifies for the
presumption of exposure. These veterans are eligible to receive disability compensation for a disease on the list of
diseases subject to presumptive service connection due to the exposure to herbicides.82
Furthermore, only veterans who served in Vietnam are entitled to retroactive benefits. As
discussed under the “Blue Water Veteran Litigation” section, some veterans of the Vietnam era
who served aboard deep-water naval vessels off the coast of Vietnam—referred to as “Blue Water
Navy” veterans—have been pressing Congress and the judicial system to expand the definition of
service in Vietnam, thereby qualifying this group to receive disability compensation for diseases
or conditions presumed to be associated with Agent Orange. These veterans contend that they
were exposed to Agent Orange while on board vessels anchored offshore, either directly through
contact with aircraft that sprayed Agent Orange or while handling drums of Agent Orange or by
drinking distilled water.83
In late 2009, the VA asked the Institute of Medicine (IOM) to conduct a study and prepare a
report on whether Vietnam-era veterans who served in the waters off Vietnam (“Blue Water
Navy” veterans) or who served on boats or ships that operated on the inland waterways and delta
areas of Vietnam (“brown water” navy veterans) experienced a comparable range of exposures to
Agent Orange as the veterans who served on the ground. In 2011, IOM announced that it was
unable to determine whether “Blue Water Navy” veterans were exposed to Agent Orange. IOM’s
report stated:
The committee was unable to state with certainty that Blue Water Navy personnel were or
were not exposed to Agent Orange and its associated [2,3,7,8-Tetrachlorodibenzo-p-Dioxin]
TCDD. Owing to a lack of data on environmental concentrations of Agent Orange and Agent
Orange–associated TCDD and an inability to reconstruct likely concentrations, as well as the
dearth of information about relative exposures among the ground troops and Brown Water
Navy personnel and Blue Water Navy personnel, it is impossible to compare actual
exposures across these three populations. Furthermore, the committee concludes that because
of the small number of studies and their limitations, there is no consistent evidence to
suggest that Blue Water Navy Vietnam veterans were at higher or lower risk for cancer or
other long-term adverse health effects associated with Agent Orange exposure than shorebased veterans, Brown Water Navy veterans, or Vietnam veterans in other branches of
82
Department of Veterans Affairs, “Herbicide Exposure and Veterans With Covered Service in Korea,” 76 Federal
Register 4245-4250, January 25, 2011.
83
Board of Veterans Appeals, Docket No. 09-47 333 (2011). Some ships converted seawater to drinking water through
distillation.
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service. The committee’s judgment is that exposure of Blue Water Navy Vietnam veterans to
Agent Orange-associated TCDD cannot reasonably be determined.84
In addition, several groups of Vietnam-era veterans have asserted that they may have been
exposed to Agent Orange based on storage and transportation of Agent Orange. For example,
veterans have contended that they came into contact with Agent Orange on Guam in the late
1960s during the Vietnam War.85 Moreover, some veterans have asserted that Agent Orange had
been used in testing performed in the Panama Canal Zone in the 1960s and 1970s,86 and others
have contended that they were exposed during storage at Johnston Island in the North Pacific
between 1971 and 1977.87 Furthermore, some Vietnam-era veterans have asserted that they were
exposed to Agent Orange in C-123 airplanes used after the Vietnam War.88 All these veterans
groups have sought to establish a presumption of exposure, thereby qualifying them to receive
disability compensation for diseases or conditions presumed to be associated with Agent Orange.
The VA is reviewing all these claims on a case-by-case basis.
Paternally Mediated Birth Defects
Currently, the VA provides disability compensation and health care services for only one
paternally mediated birth defect: spina bifida in the children of male Vietnam-era veterans.
Nevertheless, the VA provides disability compensation and health care for a range of maternally
mediated birth defects in children of female Vietnam-era veterans.89 This more liberal
compensation for female Vietnam-era veterans was based on the results of a health study of 8,280
women Vietnam-era veterans (half of whom served in the Republic of Vietnam and half of whom
served elsewhere), completed in October 1998 and titled “Women Vietnam Veterans
Reproductive Outcomes Health Study.” This study was conducted by the Environmental
Epidemiology Service of the Veterans Health Administration of the VA.90
The most recent 2012 Agent Orange report from IOM stated that there was inadequate or
insufficient evidence to determine whether an association exists between exposure to Agent
Orange and birth defects in the offspring of male Vietnam-era veterans.91 However, some veteran
84
National Academy of Sciences, Institute of Medicine (IOM), Blue Water Navy Veterans and Agent Orange
Exposure, Washington, DC, 2011, pp. 13-14.
85
Board of Veterans Appeals, Docket No. 09-11 315 (2010).
86
Board of Veterans Appeals, Docket No. 05-19 039 (2010).
87
Board of Veterans Appeals, Docket No. 08-03 699 (2011).
88
United States Air Force School of Aerospace Medicine (USAFSAM), Consultative Letter, AFRL-SA-WP-CL-20120052, UC-123 Agent Orange, April 27, 2012, http://airforcemedicine.afms.mil/idc/groups/public/documents/afms/
ctb_213571.pdf. Also see, Steve Vogel, “Agent Orange’s reach beyond the Vietnam War; Senators help push VA
compensation for those who weren’t in Vietnam but say Agent Orange caused illnesses,” Washington Post, August 8,
2013; and Steve Vogel, “Ailing vets point to Vietnam-era cargo planes,” Washington Post, August 4, 2013, pp. A-01.
89
Covered birth defects include but are not limited to the following: (1) Achondroplasia; (2) Cleft lip and cleft palate;
(3) Congenital heart disease; (4) Congenital talipes equinovarus (clubfoot); (5) Esophageal and intestinal atresia; (6)
Hallerman-Streiff syndrome; (7) Hip dysplasia; (8) Hirschprung’s disease (congenital megacolon); (9) Hydrocephalus
due to aqueductal stenosis; (10) Hypospadias; (11) Imperforate anus; (12) Neural tube defects (including spina bifida,
encephalocele, and anencephaly); (13) Poland syndrome; (14) Pyloric stenosis; (15) Syndactyly (fused digits); (16)
Tracheoesophageal fistula; (17) Undescended testicle; and (18) Williams syndrome (38 C.F.R. §3.815).
90
Department of Veterans Affairs, “Monetary Allowances for Certain Children of Vietnam Veterans; Identification of
Covered Birth Defects,” 67 Federal Register 200, January 2, 2002.
91
National Academy of Sciences, Institute of Medicine, Veterans and Agent Orange: Update 2012, Washington, DC,
(continued...)
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service organizations have asserted that more research should be done regarding paternally
mediated birth defects and that eventually disability compensation policies should be developed
for disabilities and health conditions that appear in later generations.92
Disability Compensation and Health Care for Later Generations
Some Vietnam-era veterans have raised concerns that the genetic effects of Agent Orange may
skip a generation and reappear in third or subsequent generations. In November 2010, some
veterans made presentations to the IOM, requesting that it assess the “transgenerational effects
resulting from exposure-related epigenetic changes, either in the parents or exposed fetuses,
which would lead to adverse health effects in later generations, such as grandchildren.”93 During
previous reviews of Agent Orange studies, the IOM focused “only on birth defects (primarily
limited to problems detectable at birth or within the first year of life) and childhood cancers
(usually restricted to particular cancers that characteristically appear in infants and children and
are diagnosed before the age of 18 years).”94 However, beginning with the 2010 review, the IOM
extended its focus to include all types of medical conditions occurring in Vietnam-era veterans’
children, regardless of age, and to include such conditions in successive generations.95 According
the most recent 2012 Agent Orange report from IOM, there is inadequate or insufficient evidence
to determine whether an association exists between exposure to Agent Orange and specific health
issues such as endometriosis; semen quality; infertility; spontaneous abortion; stillbirth; late fetal,
neonatal, or infant death; low birth weight or preterm delivery; birth defects other than spina
bifida; childhood cancers; or diseases in more mature offspring or later generations.96 However,
the report from IOM states that
The committee [the IOM Agent Orange study committee] favors renewed efforts to conduct
epidemiologic studies on all the developmental effects in offspring that may be associated
with paternal exposure. In addition, new studies should evaluate offspring for defined
clinical health conditions that develop later in life, focusing on organ systems that have
shown the greatest effects after maternal exposure, including neurologic, immune, and
endocrine effects. Finally, although the committee recognizes that there is evidence that
environmental exposures can affect later generations through fetal and germ-line
modifications, epidemiologic investigation designed to associate toxicant exposures with
health effects manifested in later generations will be even more challenging to conduct than
research on adverse effects on the first generation.97
(...continued)
2014, p. 555, available at http://www.iom.edu/Reports/2013/Veterans-and-Agent-Orange-Update-2012.aspx.
92
See, Associates of Vietnam Veterans of America (AVVA) Presentation Before the IOM Committee to Review the
Health Effects in Veterans of Exposure to Herbicides On Paternally Mediated Birth Defects, January 16, 2013,
available at http://www.avva.org/documents/AVVAPresentation.pdf.
93
National Academy of Sciences, Institute of Medicine, Veterans and Agent Orange: Update 2010, Washington, DC,
2011, p. 593.
94
National Academy of Sciences, Institute of Medicine, Veterans and Agent Orange: Update 2012, Washington, DC,
2014, p. 598, available at http://www.iom.edu/Reports/2013/Veterans-and-Agent-Orange-Update-2012.aspx.
95
Ibid.
96
Ibid.
97
Ibid., p. 777.
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Appendix A. Health Care Legislation for
Vietnam Veterans
Table A-1. Summary of Major Health Care Legislation for Vietnam-Era Veterans
and Their Offspring
Law
Program Established or
Affected
Veterans’ Health Care,
Training and Small
Business Loan Act
(P.L. 97-72)
Special treatment authority
for Vietnam-era veterans
who served in the Republic
of Vietnam.
Authorized the VA to
provide certain health care
services to any veteran of
the Vietnam era (August 5,
1964, through May 7, 1975)
who, while serving in the
Republic of Vietnam, may
have been exposed to
dioxin or to a toxic
substance in an herbicide
or defoliant used for
military purposes. Health
care services were not
authorized for the care of
conditions found to have
resulted from a cause other
than exposure to these
substances.
The Departments of
Veterans Affairs and
Housing and Urban
Development, and
Independent Agencies
Appropriations Act,
1997 (P.L. 104-204)
Benefits for Certain
Children of Vietnam
Veterans—Spina Bifida.
Authorized the VA to
provide children with the
birth defect spina bifida
born to Vietnam veterans
certain benefits and
services, including
monetary allowance, health
care, and vocational
training and rehabilitation.
Health care services were
limited only to health care
that was needed to treat
spina bifida and associated
conditions.
Congressional Research Service
Description
Notes
A birth child of a Vietnam
veteran (both men and
women veterans),
regardless of age or marital
status, who was conceived
after the date on which the
Vietnam veteran first
entered the Republic of
Vietnam, during the period
beginning January 9, 1962,
and ending May 7, 1975,
with the birth defect spina
bifida, is eligible to receive
benefits and services
through the VA.
15
Veterans Exposed to Agent Orange: Legislative History, Litigation, and Current Issues
Law
Program Established or
Affected
The Veterans’ Health
Care Eligibility Reform
Act of 1996
(P.L. 104-262)
Special treatment authority
for Vietnam-era veterans
who served in the Republic
of Vietnam.
Description
Notes
Authorized the VA to
provide health care
services to Vietnam-era
herbicide-exposed veterans
notwithstanding that there
is insufficient medical
evidence to conclude that
their disabilities were
associated with exposure
to herbicides while serving
in Vietnam.
Superseded the provisions
of previous acts pertaining
to priority treatment of
Vietnam-era veterans.
To be eligible for care, a
Vietnam-era veteran must
have served in the Republic
of Vietnam or served in a
unit stationed along the
Korean demilitarized zone
(DMZ) between April 1,
1968, and August 31, 1971,
and have a disease or
condition that is presumed
to be service-connected or
any disease or condition
that may have been caused
by exposure to herbicides.
However, care is not
provided for diseases and
conditions identified by the
Institute of Medicine (IOM)
as having
“limited/suggestive”
evidence of no association
between the occurrence of
the disease and exposure
to an herbicide.a
Veterans Programs
Enhancement Act of
1998 (P.L. 105-368)
Special treatment authority
for Vietnam-era veterans
who served in the Republic
of Vietnam.
Treatment authority
authorized by P.L. 104-262
was extended through
2001.
Veterans Benefits and
Health Care
Improvement Act of
2000 (P.L. 106-419)
Children of Women
Vietnam Veterans (CWVV)
Health Care Program
Authorized the VA,
effective December 1,
2001, to provide certain
benefits, including a
monthly monetary
allowance, and health care
for children with certain
birth defects who were
born to women veterans
who served in the Republic
of Vietnam during the
Vietnam era.b
A birth child of a woman
Vietnam-era veteran,
regardless of age or marital
status, conceived after the
date on which the veteran
first served in the Republic
of Vietnam during the
Vietnam era (February 28,
1961–May 7, 1975).
Department of Veterans
Affairs Health Care
Programs Enhancement
Act of 2001
(P.L. 107-135).
Special treatment authority
for Vietnam-era veterans
who served in the Republic
of Vietnam.
Treatment authority
authorized by P.L. 104-262
was extended through
2002.
Although this special
treatment authority lapsed
in 2002, the VA continued
to treat these veterans.
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Veterans Exposed to Agent Orange: Legislative History, Litigation, and Current Issues
Law
Program Established or
Affected
Description
Notes
Veterans Benefits Act of
2003 (P.L. 108-183)
Benefits for Certain
Children of Veterans with
Covered Service in
Korea—Spina Bifida
Authorized the VA to
provide children with the
birth defect spina bifida
born to veterans with
covered service in Korea
certain benefits and
services, including
monetary allowance, health
care, and vocational
training and rehabilitation.
Health care services were
limited only to health care
that was needed to treat
spina bifida and associated
conditions.
A birth child of a Korea
veteran (both men and
women veterans),
regardless of age or marital
status, who was conceived
after the date on which the
Korea veteran first served
in or near the Korean
demilitarized zone, during
the period beginning
September 1, 1967, and
ending August 31, 1971,
with the with the birth
defect spina bifida, is are
eligible to receive benefits
and services through the
VA.
The Veterans’ Mental
Health and Other Care
Improvements Act of
2008 (P.L. 110-387)
Benefits for Certain
Children of Vietnam
Veterans and with Covered
Service in Korea—Spina
Bifida.
Authorized the VA to
furnish comprehensive health
care services to
beneficiaries born with
spina bifida.
This program now covers
comprehensive health care
that is considered medically
necessary and appropriate,
and is not limited to health
care that is needed to treat
spina bifida and associated
conditions.
To be eligible to receive
health care, the child must
be eligible to receive a
monthly monetary
allowance. For eligible
beneficiaries, the VA
assumes full responsibility
for the cost of medical
services, and the VA
directly reimburses the
providers. Generally, care
is provided in the private
sector, but in some
instances, services may also
be obtained from VA health
care facilities on a space
available basis.
The Caregivers and
Veterans Omnibus
Health Services Act of
2010 (P.L. 111-163)
Special treatment authority
for Vietnam-era veterans
who served in the Republic
of Vietnam.
Provided permanent
authorization for special
treatment authority
authorized by P.L. 104-262.
Source: Congressional Research Service (CRS) analysis of legislation and federal regulations.
a.
“Limited/suggestive” evidence of no association is when several adequate studies, covering the full range of
levels of exposure that human beings are known to encounter, are consistent in not showing a positive
association between any magnitude of exposure to herbicides and the outcome of disease.
b.
Covered birth defects include, but are not limited to, the following: (1) Achondroplasia; (2) Cleft lip and
cleft palate; (3) Congenital heart disease; (4) Congenital talipes equinovarus (clubfoot); (5) Esophageal and
intestinal atresia; (6) Hallerman-Streiff syndrome; (7) Hip dysplasia; (8) Hirschprung’s disease (congenital
megacolon); (9) Hydrocephalus due to aqueductal stenosis; (10) Hypospadias; (11) Imperforate anus; (12)
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Neural tube defects (including spina bifida, encephalocele, and anencephaly); (13) Poland syndrome; (14)
Pyloric stenosis; (15) Syndactyly (fused digits); (16) Tracheoesophageal fistula; (17) Undescended testicle;
and (18) Williams syndrome (38 C.F.R. §3.815).
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Appendix B. Diseases and Conditions
Presumed/Not Presumed to Be Service-Connected
with Exposure to Agent Orange
Table B-1. Diseases and Conditions Presumptively Service-Connected with Exposure
to Agent Orange
Year of IOM Findings
Year of VA Service
Connection
Chloracne
1994
1985
Non-Hodgkin’s lymphoma
1994
1990
Soft tissue sarcoma
1994
1991
Hodgkin’s disease
1994
1994
Chronic lymphocytic leukemia
(CLL)a
2003
2004
Chronic B-cell leukemias
including hairy cell leukemia
2009
2010
Respiratory cancers—lung,
bronchus, larynx, or trachea
1994
1994
Prostate cancer
1996
1996
Multiple myeloma
1994
1994
Porphyria cutanea tarda
1994
1994
Must have occurred, to a
degree that is at least 10%
disabling, within one year of
the last day the veteran
served in Vietnam
Early-onset peripheral
neuropathy
1996
1996
Previous regulations
required that the condition
must appear within weeks
or months of exposure and
resolves within two years
of the date of onset. On
September 6, 2013, VA
issued regulations to
remove this requirement.
Disease or Condition
Notes
Sufficient Evidence of Association
Must have occurred, to a
degree that is at least 10%
disabling, within one year of
the last day the veteran
served in Vietnam
Does not include
osteosarcoma,
chondrosarcoma, Kaposi’s
sarcoma, or mesothelioma
Limited or Suggestive Evidence of Association.
Congressional Research Service
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Veterans Exposed to Agent Orange: Legislative History, Litigation, and Current Issues
Year of VA Service
Connection
Disease or Condition
Year of IOM Findings
Spina bifida in the children of
veterans
1996
1997
(established by Congress)
Type 2 diabetes
2000
2001
Some birth defects in the
children of female veteransb
Nonec
2001
(established by Congress)
AL amyloidosis
2007
2009
Amyotrophic lateral sclerosis
(ALS)
2006
2008
Ischemic heart diseased
2009
2010
Parkinson’s disease
2009
2010
Notes
The Departments of
Veterans Affairs and
Housing and Urban
Development, and
Independent Agencies
Appropriations Act, 1997
(P.L. 104-204) provided
benefits to certain children
of Vietnam veterans who
were born with spina bifida.
The Veterans Benefits and
Health Care Improvement
Act of 2000 (P.L. 106-419)
required the VA to identify
and establish birth defects
through regulations.
This presumptive condition
is not limited to veterans
who were potentially
exposed to Agent Orange.
To be eligible for this
presumptive service
connection, a veteran must
have served on continuous
active duty for a period of
90 days or more.
Source: Based on National Academy of Sciences, Institute of Medicine, Veterans and Agent Orange: Update
2010, Washington, DC, 2012, p. 15; U.S. Congress, House Committee on Veterans’ Affairs, Health Effects of the
Vietnam War-The Aftermath, 111th Cong., 2nd sess., May 10, 2010 (Washington: GPO, 2010), p. 55; CRS Report
R41405, Veterans Affairs: Presumptive Service Connection and Disability Compensation, by (name redacted),
(name redacted), and (name redacted); and Congressional Research Service (CRS) analysis of VA regulations.
a.
38.C.F.R. §3.309(e). In 2003, based on the 2002 update of the IOM report Veterans and Agent Orange, the
VA issued a regulation designating chronic lymphocytic leukemia (“CLL”) and other medical conditions as
diseases associated with dioxin. CLL was therefore to be considered “service connected.” However, the VA
did not readjudicate prior claims for CLL, nor did it pay retroactive benefits, arguing that compensation was
not applicable to diseases determined to be service-connected after September 20, 2002, the original sunset
date of the Agent Orange Act of 1991. Following extensive litigation, the U.S. Court of Appeals for the
Ninth Circuit (Nehmer v. VA, 494 F.3d 846 (9th Cir. Cal. 2007)) affirmed the district court decision
(Nehmer v. VA, 32 F.Supp. 2d 1175 (N.D. Cal. 1999)) and, in effect, confirmed that the VA was obligated to
pay disability benefits to all “Agent Orange” veterans with CLL, including those diagnosed after September
20, 2002.
b.
Covered birth defects include, but are not limited to, the following: (1) Achondroplasia; (2) Cleft lip and
cleft palate; (3) Congenital heart disease; (4) Congenital talipes equinovarus (clubfoot); (5) Esophageal and
intestinal atresia; (6) Hallerman-Streiff syndrome; (7) Hip dysplasia; (8) Hirschprung’s disease (congenital
megacolon); (9) Hydrocephalus due to aqueductal stenosis; (10) Hypospadias; (11) Imperforate anus; (12)
Neural tube defects (including spina bifida, encephalocele, and anencephaly); (13) Poland syndrome; (14)
Pyloric stenosis; (15) Syndactyly (fused digits); (16) Tracheoesophageal fistula; (17) Undescended testicle;
and (18) Williams syndrome (38 C.F.R. §3.815).
Congressional Research Service
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Veterans Exposed to Agent Orange: Legislative History, Litigation, and Current Issues
c.
Based on a health study completed in October 1998 titled ‘‘Women Vietnam Veterans Reproductive
Outcomes Health Study,’’ conducted by VA of 8,280 women Vietnam-era veterans.
d.
Ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such
as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally
accepted medical definition of Ischemic heart disease.
Table B-2. Diseases and Conditions Not Presumed to Be Service-Connected to
Agent Orange
Diseases and Conditions
(1) Cancers of the oral cavity (including lips and tongue),pharynx (including tonsils), and nasal cavity (including ears
and sinuses)
(2) Cancers of the pleura, mediastinum, and other unspecified sites within the respiratory system and intrathoracic
organs
(3) Cancers of the digestive organs (esophageal cancer; stomach cancer; colorectoral cancer, including small intestine
and anus; hepatobiliary cancers, including liver, gallbladder, and bile ducts; and pancreatic cancer)
(4) Bone and joint cancer
(5) Melanoma
(6) Nonmelanoma skin cancer (basal cell and squamous cell)
(7) Breast cancer
(8) Cancers of the reproductive organs (cervix, uterus, ovary, testes, and penis, excluding prostate)
(9) Urinary bladder cancer
(10) Renal cancer (kidney and renal pelvis)
(11) Cancers of the brain and nervous system (including eye)
(12) Endocrine cancers (including thyroid and thymus)
(13) Leukemia (other than all chronic B-cell leukemias including chronic lymphocytic leukemia and hairy cell leukemia)
(14) Cancers at other and unspecified sites (other than those as to which the Secretary has already established a
presumption)
(15) Reproductive effects (including infertility; spontaneous abortion other than after paternal exposure to[2,3,7,8Tetrachlorodibenzo-p-Dioxin] TCDD; and—in offspring of exposed people—neonatal death, infant death, stillborn,
low birth weight, birth defects [other than spina bifida], and childhood cancer [including acute myeloid leukemia])
(16) Neurobehavioral disorders (cognitive and neuropsychiatric)
(17) Neurodegenerative diseases (excluding amyotrophic lateral sclerosis [ALS]a and Parkinson’s diseaseb)
(18) Chronic peripheral nervous system disorders (other than early-onset peripheral neuropathy)
(19) Respiratory disorders (wheeze or asthma, chronic obstructive pulmonary disease, and farmer’s lung)
(20) Gastrointestinal, metabolic, and digestive disorders (including changes in liver enzymes lipid abnormalities, and
ulcers)
(21) Immune system disorders (immune suppression, allergy, and autoimmunity)
(22) Circulatory disorders (other than hypertension, ischemic heart disease, and stroke)
(23) Endometriosis
(24) Effects on thyroid homeostasis
(25) Hearing loss
Congressional Research Service
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Veterans Exposed to Agent Orange: Legislative History, Litigation, and Current Issues
Diseases and Conditions
(26) Eye problems
(27) Bone conditions
Sources: Department of Veterans Affairs, “Health Outcomes Not Associated with Exposure to Certain Herbicide
Agents; Veterans and Agent Orange Update: 2008,” 75 Federal Register 81332-81335, December 27, 2010, and
Department of Veterans Affairs, “Determinations Concerning Illnesses Discussed in National Academy of Sciences
Report: Veterans and Agent Orange: Update 2012,” 79 Federal Register 20308-20313, April 11, 2014.
a.
VA provides a presumption of service connection for amyotrophic lateral sclerosis (ALS) for any veteran
who develops the disease at any time after separation from service and was on active, continuous service of
90 days or more (See Department of Veterans Affairs, “Presumption of Service Connection for
Amyotrophic Lateral Sclerosis,” 74 Federal Register 57072-57074, November 4, 2009.) It should be noted
that ALS is not associated with Agent Orange exposure.
b.
VA provides a presumption of service connection for Parkinson’s disease.
Author Contact Information
(name redacted)
Specialist in Veterans Policy
[redacted]@crs.loc.gov, 7-....
Congressional Research Service
(name redacted)
Legislative Attorney
[redacted]@crs.loc.gov, 7-....
22
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