Maryland Bar Bulletin
Publications : Bar Bulletin : May 2010

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 BAR BULLETIN FOCUS: VETERANS AFFAIRS/MILITARY LAW

The term “Agent Orange” may not have as a profound reaction today as the world gets further and further away from the Vietnam War era. Nevertheless, it remains an ongoing concern to the men and women who served in this conflict, and, naturally, the Department of Veterans Affairs. As detailed below, there is ongoing research in this area, which has resulted in recent proposals to amend existing rules.

By way of background, it is important to note that Agent Orange is generally considered an herbicide agent. The term herbicide agent means, in general, a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam War era. This era is officially recognized by the Department of Veterans Affairs as beginning on January 9, 1962, and ending on May 7, 1975. Moreover, veterans who had such service are deemed to have been presumptively exposed to herbicides therein.

Under existing laws and regulations, veterans with the requisite service are entitled to presumptive service connection for the following conditions: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, multiple myeloma, non-Hodgkin’s lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). For purposes of these provisions, the term “acute and subacute peripheral neuropathy” means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. These diseases must become manifest to a degree of 10 percent or more under relevant rating criteria at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval or air service.

These laws are further affected by the fact that there is ongoing research on the affects of herbicide exposure. The law specifically directs the Secretary of the Department of Veterans Affairs to enter into an agreement with the National Academy of Sciences to review and summarize the scientific evidence concerning the association between exposure to herbicides used in support of military operations in the Republic of Vietnam during the Vietnam Era and each disease suspected to be associated with such exposure. The Secretary’s determination must be based on consideration of National Academy of Sciences reports and all other sound medical and scientific information and analysis available to the Secretary.

As a result of this research, Type 2 diabetes was first recognized by the Department of Veterans Affairs in 2001 as being associated with herbicide exposure. More recently, the Department of Veterans Affairs proposed this year (2010) to remove chronic lymphocytic leukemia and replace it with “[a]ll chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia).” Further, the Department of Veterans Affairs has proposed to add Parkinson’s disease and ischemic heart disease (including, but not limited to, acute, subacute and old myocardial infarction; atherosclerotic cardiovascular disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina) to the list of diseases associated with exposure to certain herbicide agents. The intended effect of this proposed amendment is to establish presumptive service connection for these diseases based on herbicide exposure.

These proposed changes are significant as they reflect the fact that herbicide exposure represents an ongoing concern for the Department of Veterans Affairs, and it remains committed to ensuring the relevant regulations remain up-to-date based upon ongoing research. Further, these specific proposals are also significant for the fact that the Department of Veterans Affairs has in the past explicitly concluded, based on the then existing scientific and medical data, that there was no relationship between herbicide exposure and Parkinson’s disease. It is also important to remember that these are only proposed changes. Granted, it is highly probable that all of the aforementioned conditions will ultimately be recognized by regulation as being presumptively associated with herbicide exposure. The simple fact is that it appears highly unlikely that there will be arguments that the Department of Veterans Affairs should not recognize these conditions as such. Nevertheless, at this writing, these proposed changes are not yet law. As such, individuals interested in these developments should keep careful track of such developments.

John Kitlas has worked as an attorney with the Department of Veterans Affairs, Board of Veterans Appeals, since 1998.


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Publications : Bar Bulletin: May 2010

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