Veterans who were exposed to Agent Orange who develop a condition that is not on the VA’s list of diseases that are presumptively caused by Agent Orange have a difficult time convincing the VA that their condition resulted from Agent Orange exposure. When a Vietnam veteran has a condition that is not recognized as a presumptive condition, the veteran may be able to get the VA to grant a disability compensation claim if the veteran submits (1) a doctor’s statement that the veteran currently suffers from the disease or its residuals, and (2) an opinion from a medical expert stating that it is at least as likely as not that Agent Orange caused the disease or disability.
If a veteran submits the above evidence, the VA is required to weigh and consider the total analysis provided by the medical expert. The expert’s opinion should include discussion on the following topics:
- A discussion on relevant medical studies
- The time between Agent Orange exposure and the onset of the disease
- The veteran’s other risk factors for developing the disease. This would include a discussion of the veteran’s genetic disposition/family history.
However, if the medical expert bases their opinion SOLELY on a finding that there is a statistical correlation between Agent Orange exposure and the disease, the VA can reject their medical opinion.
If a veteran submits medical evidence that shows their disease is related to Agent Orange exposure and that disease is not on the VA’s list of Agent Orange related diseases, then the VA’s duty to assist will probably be triggered. The VA will likely be required to provide the veteran with a medical opinion addressing whether the disease is at least as likely as not related to the veteran’s service. The examiner providing this medical opinion should clearly consider direct service connection and support their conclusion with adequate reasoning. An example of an inadequate opinion would be if the examiner based their opinion solely upon the fact that the disability is not on the list of diseases the VA has presumptively linked to Agent Orange exposure.
If a veteran is unsuccessful in getting the VA to link their condition to Agent Orange exposure, they may still qualify for service connection under the traditional rules that have nothing to do with Agent Orange exposure. Also, if the veteran ultimately isn’t able to prove service connection under any of the VA’s rules, they may still want to file a claim. This would be especially true if the veteran’s condition is among those that have a greater chance of being recognized by the VA in the future as being associated with Agent Orange exposure. If the VA adds the disease to the list of those that are presumptively service connected and then grants a claim, the veteran would have a better chance at receiving retroactive benefits based on the original application for benefits. The following is a list of the diseases most likely to be recognized by the VA in the future as being associated with exposure to Agent Orange:
|Birth defects (other than spina bifida) in children of male Vietnam veterans|
|Bone and joint cancer|
|Cancers of reproductive organs|
|Cancers of the brain and nervous system|
|Cancers of the oral cavity (including lips and tongue), pharynx (including tonsils), and nasal cavity|
|Cancers of the pleura, mediastinum, and other sites within the respiratory system and intrathoracic organs|
|Childhood cancer in children of Vietnam veterans|
|Chronic peripheral nervous system disorders|
|Disruption of thyroid homeostasis|
|Endocrine cancers (including thyroid and thymus)|
|Gastrointestinal, metabolic, and digestive disorders|
|Hepatobiliary cancers (liver, gallbladder and bile ducts)|
|Immune system disorders (immune suppression, allergy, and autoimmunity)|
|Leukemia (other than chronic B-cell leukemias)|
|Low birth weight in children of Vietnam veterans|
|Neonatal or infant death and stillbirth of children of Vietnam veterans|
|Neurobehavioral disorders (cognitive and neuropsychiatric)|
|Skin disorders (melanoma, basal cell, and squamous cell)|
|Spontaneous abortion in female Vietnam veterans|
|Urinary bladder cancer|
Remember, the above list is not exhaustive, and the conditions are not guaranteed to be added to the VA’s Agent Orange presumptive list. The conditions included are based on studies conducted by the Institute of Medicine of the National Academies (IOM), a group of private, nonprofit institutions that provide objective analysis to federal agencies such as the VA. The IOM conducts independent reviews on the health effects of Agent Orange exposure, and updates and reviews Agent Orange research every two years. As a result, new diseases and illnesses are constantly being added to the VA’s presumption list. Under the Agent Orange Act of 1991, the VA has to base a determination to add diseases to the Agent Orange presumption list on the reports made by the IOM.