January 01, 2018 GPSolo

Agent Orange, Burn Pits, and Presumptive Service Connection for Disability Compensation

Robert V. Chisholm

Typically, a veteran seeking service-connected disability compensation must establish that an event or injury during service caused his or her current disease or disability (38 U.S.C. § 1110; 38 C.F.R. § 3.303 (2016)). The burden to establish direct causation—the so-called “nexus” requirement—can be a heavy one. The burden is amplified by limited scientific knowledge about the health effects of exposure to certain environmental hazards and by limited documentation of an individual veteran’s exposure.

Recognizing these challenges, Congress has enacted various laws that require the Department of Veterans Affairs (VA) to determine, based on sound scientific and medical evidence, whether some diseases have a connection or association to a particular type of environmental exposure. Once such a medical nexus has been established, the VA adds the disease or disability to its list of “presumptive” diseases. By establishing such a presumption, the VA allows a veteran with the relevant disease to bypass the typical case-specific adjudication of whether a medical nexus exists.

This article discusses the types of presumptions that Congress and the VA have established since the Vietnam War and explores how advocates might use Vietnam-era presumptions on behalf of veterans of Iraq and Afghanistan whose claims may not fall within the presumptions established for them in recent years.

Exposure to Herbicide Agents During the Vietnam War

During the Vietnam War, the U.S. military used a number of potent herbicides to clear jungle foliage throughout Southeast Asia. Agent Orange is the best known of these herbicides. After the Vietnam War, many veterans claimed that exposure to Agent Orange caused them to develop malignant tumors, liver enzyme deficiency, and other conditions (Nehmer v. U.S. Veterans’ Administration, 712 F.Supp. 1404, 1407 (N.D. Cal. 1989)). Initially, the only disease the VA would acknowledge as being caused by Agent Orange was chloracne; consequently, the VA denied the majority of exposure-related claims filed before the mid-1980s (id.).

In response to the VA’s denial of so many veterans’ claims, Congress passed the Veterans’ Dioxin and Radiation Exposure Compensation Standards Act in 1984 to ensure that veterans received compensation for all diseases associated with herbicide exposure (Pub. L. 98-542, 98 Stat. 2725 (1984)). The Act provided, among other things, that the VA should deem a disease service-connected when there is a statistically significant association between the occurrence of the disease and exposure to Agent Orange (id.).

Maintaining its prior position, however, the VA issued a rule pursuant to which it continued to find Agent Orange exposure caused only chloracne (50 Fed. Reg. 15848, 15849 (Apr. 22, 1985)). Vietnam veterans brought a successful class action lawsuit against the VA on the grounds that the rule implemented a standard of cause and effect when the Act provided for a (less stringent) standard of statistical association. When the case—Nehmer v. U.S. Veterans’ Administration—was decided in 1989, a federal district court invalidated the VA’s rule and voided all denials of benefits under the rule (Nehmer, 712 F.Supp. at 1423). Since the Nehmer decision, the VA has recognized links between herbicide exposure and a number of serious diseases, granting presumptive service connection for conditions including several types of cancer, ischemic heart disease, Parkinson’s disease, type 2 diabetes, and others (38 C.F.R. § 3.309(e) (2016)).

Today, the VA rule governing these presumptions applies to any disease recognized by the VA as “associated with exposure to certain herbicide agents” (38 C.F.R. § 3.307(a) (2016); see 38 C.F.R. § 3.309(e) (2016)). Federal regulation defines “herbicide agent” as “a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam” between January 1962 and May 1975 (38 C.F.R. § 3.307(a)(6)(i) (2016)). It includes chemicals such as cacodylic acid (Agent Blue) and picloram (Agent White) (id.). More importantly for purposes of this article, it also includes 2,4-D, 2,4,5-T, and its contaminant TCDD, the most potent member of a class of chemicals known as dioxins (id.). Agent Orange was a 50:50 mixture of n-butyl esters of 2,4-D and 2,4,5-T. TCDD in turn was a combustion byproduct contaminant of 2,4,5-T (Table 3-1, “Military Use of Herbicides in Vietnam (1961–1971),” Committee to Review the Health Effects in Vietnam Veterans of Exposure to Herbicides, Veterans and Agent Orange: Update 2014 (Tenth Biennial Update 2016) at 67). TCDD also has been found in environmental hazards to which Iraq and Afghanistan veterans have been exposed (VA Manual M21-1MR, Part IV, Subpart ii, Chapter 1, Section I(10)(a)).

In addition to establishing a presumptive medical nexus in exposure cases, the VA will also presume that veterans who served in specific geographical locations during certain conflicts were exposed to herbicides. This presumption of service connection relieves those veterans from having to prove exposure based on potentially limited documentation of their individual exposure to herbicides. Veterans who served in Vietnam during the Vietnam era or in the vicinity of the Korean demilitarized zone, or who worked with C-123 aircraft during the Vietnam era, are presumed to have been exposed to herbicide agents (38 C.F.R. § 3.307(a)(6) (2016)). Conversely, a veteran who served in Thailand, for example, is not presumed to have been exposed to an herbicide agent. But the VA recognizes that there was significant use of herbicides at numerous military bases in Thailand. Therefore, it has extended “special consideration” to veterans who worked on or near the perimeter of a base in Thailand, allowing such veterans to prove only that it was “at least as likely as not” that they were present in that area to be presumed exposed to a tactical herbicide (VA Manual M21-1MR, Part IV, Subpart ii, Chapter 2, Section C(10)(q)). Any veteran who served outside these areas, however, must prove herbicide exposure on a case-by-case basis.

Service in Southwest Asia

The VA established presumptions of service connection for another series of conditions after the end of initial Gulf War military operations in 1991. Among the environmental hazards to which veterans were exposed during the 1990–1991 Gulf War were smoke and airborne particles from more than 750 oil well fires; widespread pesticide and insecticide use, including personal flea collars; infectious diseases; fumes from solvents and fuels; daily ingestion of a nerve gas antidote; multiple vaccines administered before deployment; inhalation of ultra-fine-grain sand particles; and to some extent, military-grade nerve agents (VA Training Letter 10-01 (Feb. 4, 2001), at 2). Both in the field and at home, veterans of Operations Desert Shield and Desert Storm started noticing health effects. According to the VA Office of Research & Development, roughly one quarter of these veterans reported patterns of chronic symptoms that typically include headaches, cognitive difficulties, widespread bodily pain, unexplained fatigue, chronic diarrhea, skin rashes, and respiratory problems (id.).

These symptoms did not conform to recognized categories of disease yet afflicted a significant percentage of Gulf War veterans. Congress therefore initiated studies in the 1990s, seeking to explain these chronic illness patterns, often referred to as “Gulf War Syndrome.” As a result of these studies, the VA established a presumption for Gulf War veterans who meet the criteria for an “undiagnosed illness” or a “medically unexplained chronic multi-symptom illness” (MUCMI) such as chronic fatigue syndrome, fibromyalgia, or a functional gastrointestinal disorder. Consequently, an eligible veteran (38 U.S.C. § 1117(a); 38 C.F.R. § 3.317(a) (2016)) does not need to prove a connection between his or her MUCMI and military service (38 U.S.C. § 1117(a); 38 C.F.R. § 3.317(a) (2016)).

Under VA guidelines, an undiagnosed illness includes symptoms such as abnormal weight loss, fatigue, cardiovascular disease, muscle and joint pain, headache, menstrual disorders, neurological and psychological problems, skin conditions, respiratory disorders, and sleep disturbances (38 C.F.R. § 3.317(b)). The VA defines a MUCMI as a “diagnosed illness without conclusive pathophysiology or etiology” (38 C.F.R. § 3.317(a)(2)(B)). The MUCMI must exist for at least six months (38 C.F.R. § 3.317(a)(4)).

Exposure to Burn Pit Emissions

A principal environmental hazard that veterans of Operation Iraqi Freedom (OIF) and Operation Enduring Freedom (OEF) encountered was emissions from burn pits (VA Manual M21-1MR, Part IV, Subpart ii, Chapter 1, Section I(10)(a)). The U.S. military has used burn pits as a means of waste disposal at installations in Afghanistan, Iraq, and Djibouti from 2001 to the present (id.). The most notorious burn pit was at Joint Base Balad, where personnel burned up to several hundred tons of waste per day until replacing the pit with an incinerator in 2009 (id.). At its peak, the Balad burn pit was approximately 20 acres in size (id.). Smoke from burning medical and human waste, plastics, Styrofoam, petroleum products, munitions, and jet fuel blew into living areas on the base (id.). Chemical compounds released from burn pits into the air include polycyclic aromatic hydrocarbons, volatile organic compounds, and dioxins including TCDD (id.). These compounds adversely affect the skin, eyes, liver, kidneys, and GI tract as well as the central and peripheral nervous, respiratory, cardiovascular, and reproductive systems (id.). Many are also known carcinogens.

Because the VA has not established a regulatory or statutory presumption that applies to claims for service connection based on exposure to burn pit emissions, a veteran must bear the more onerous burden of establishing that exposure to burn pit emissions caused his or her disease. Instead of creating a presumption, the VA has formulated procedures for deciding such claims on a case-by-case basis (VA Manual M21-1MR, Part IV, Subpart ii, Chapter 2, Section C(5)(d)). Alternatively, if said veteran develops an undiagnosed illness or MUCMI and served in Iraq, he or she can utilize the presumption available to Gulf War veterans of the Southwest Asia theater (See 38 C.F.R. § 3.317 (2016)).

Applicability of "Herbicide Agent" to Burn Pit Emissions

OIF/OEF veterans who cannot benefit from the presumption applicable to Gulf War veterans may be able to benefit from the VA’s definition of “herbicide agent.” As noted, the VA defines “herbicide agent” as a chemical component of any of the herbicides used in Vietnam during the prescribed time period, including the dioxin TCDD. Moreover, the VA recognizes that the dioxin TCDD, among many others, is a component of burn pit emissions (id.; VA Training Letter 10-03 (April 26, 2010), at 4). Thus, an OIF/OEF veteran who was exposed to burn pit emissions was likely exposed to the “herbicide agent” TCDD during active military service. There does not appear to be a basis for finding that TCDD is associated with certain diseases contracted by Vietnam-era veterans but not with the same diseases when contracted by OIF/OEF veterans.

The following example illustrates this point. A veteran was exposed to plumes of black smoke being emitted from nearby burn pits during his or her service in Iraq/Afghanistan. The veteran later develops non-Hodgkin lymphoma. Because non-Hodgkin lymphoma does not qualify as an undiagnosed illness and may not qualify as a MUCMI, the veteran is not eligible for the presumption benefiting Gulf War veterans, notwithstanding his or her qualifying service. But by virtue of the VA’s acknowledgment that burn pit emissions contain dioxins, specifically TCDD, the one contained in Agent Orange, the veteran has a factual basis for establishing exposure to an “herbicide agent” in service. The veteran need only meet an “at least as likely as not” burden of proof to establish this exposure. And for a veteran exposed to an herbicide agent during active service, non-Hodgkin lymphoma “shall be service-connected” (38 C.F.R. § 3.309(e) (2016)).

This allows a veteran to advance two alternative theories of service connection in support of his or her claim for disability benefits. As described above, the veteran may rely on the broad definition of “herbicide agent” and VA’s concession of TCDD’s presence in burn pit emissions to argue for presumptive service connection. He or she may also argue for service connection on a direct basis by presenting medical evidence showing that exposure to burn pit emissions caused the non-Hodgkin lymphoma.

Conclusion

Although the aforementioned presumptions lighten a veteran’s burden of proving a link between environmental exposure and disease in some cases, they fail to benefit other veterans who were also exposed to environmental toxins. These veterans and their advocates may be able to take advantage of the Agent Orange presumption and apply it to new environmental exposures to avoid the difficult prospect of proving service connection on a direct basis.

Exposure to Contaminated Drinking Water at Camp Lejeune

In March 2017 the VA established the newest presumptions for establishing service connection, which benefit veterans who were exposed to contaminated drinking water at Camp Lejeune, North Carolina, between 1953 and 1987 (82 Fed. Reg. 4173, 4173 (Jan. 13, 2017)). In 1982 the U.S. Marine Corps discovered volatile organic compounds (VOCs) in the drinking water supplying certain housing areas on base at Camp Lejeune (81 Fed. Reg. 62419, 62419 (Sept. 9, 2016)). The VOCs were traced to a dry-cleaning agent from an off-base dry-cleaning facility and a metal degreaser used in on-base industrial activities (id.). Drinking water contaminated with these VOCs has been linked to a number of health problems, including non-Hodgkin lymphoma, leukemia, renal cancer, bladder cancer, breast cancer, lung cancer, and Parkinson’s disease (id. at 62420).

In 2011, after acknowledging that “many unanswered questions remain[ed]” regarding the extent of the contamination, including whether contaminant levels were high enough to cause certain diseases, the VA determined that the claims of veterans who served at Camp Lejeune deserved “special handling” while it conducted further inquiry (VA Training Letter 11-03 (Nov. 29, 2011), at 1). At that time, a veteran claiming service connection on the basis of exposure at Camp Lejeune still had to prove a nexus between exposure and his or her disease. The manifestation of any number of listed diseases was, however, enough to entitle a veteran to a VA medical examination and opinion regarding the existence of a nexus.

Since the March 2017 effective date of the regulatory presumption, certain diseases “shall be service-connected” if a veteran was exposed to Camp Lejeune’s contaminated water supply, including kidney, liver, and bladder cancer; non-Hodgkin lymphoma; and Parkinson’s disease (38 C.F.R. § 3.309(f)). A Camp Lejeune veteran must establish at least 30 days of service between 1953 and 1987 on the base for the VA to presume exposure to contaminants in the water supply (38 C.F.R. § 3.317(a)(7)(3)). There is, however, no time limit on post-service appearance of a Camp Lejeune–related disorder.

Robert V. Chisholm represents veterans before the Court of Appeals for Veterans Claims (CAVC) and the VA. He is a past president of the CAVC Bar Association and also served as the president of the National Organization of Veterans’ Advocates (NOVA), 1999–2004. He is the first recipient of NOVA’s most prestigious honor, the Kenneth Carpenter Achievement Award for Excellence. In 2016 the CAVC awarded him the Hart T. Mankin Distinguished Service Award in recognition of his 25 years of outstanding service to the Court. He has served as lead counsel in more than 7,500 cases before the CAVC.