Overview of Veterans' Agent Orange Legislation

Children Of Vietnam Veterans Health Alliance INC

Veterans Exposed to Agent Orange: Legislative History, Litigation, and Current Issues – R43790

By Sidath Viranga Panangala, first published December 1, 2014, Congressional Research Service

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 (and a great many scientists) believe that 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 Aspen Institute provides an excellent overview of Agent Orange's tragic 50-year history. CLiCK HERE for an excellent summation of legislation being considered in the current Congress. Note that of over 10,000 bills now in process, fewer than 300 have resulted in new laws, and only three dealt with veterans' issues. Thus, any hope for a specific legislative approach to an issue such as Blue Water Navy has odds which appear insurmountable. Note further that the current Congress is properly termed a "do-nothing Congress" because it passed less than half the average number of new laws. And only a few weeks remain for the most serious issues facing the Nation to be addressed.

The Department of Veterans Affairs (VA) received the first claims asserting conditions related to Agent Orange in 1977. Although eventually thousands of veterans sought help, VA immediately took the position that Agent Orange was harmless, and any problem weren't anything worse 'than teenage acne," as the then-Administrator of the VA put it.

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. This requirement is frequently most noted for being ignored by VA rating officials.

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, in total frustration with VA's determination to block veterans' access to benefits associated with their service in Vietnam, Congress passed the landmark Agent Orange Act (P.L. 102-4) established a presumption of service connection for diseases associated with herbicide exposure. This proved to be the foundational legislation for treatment of Agent Orange-exposed veterans.

P.L. 102-4 authorized (and required) 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. The last of the IOM Agent Orange reviews began in October 2014 and will report its results in about two years.

Under current regulations, a service member must have actually set foot on Vietnamese soil or served on a vessel on 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. 

The law also provides that veterans who can prove exposure to Agent Orange in situations outside Vietnam will receive the same presumption of service connection for recognized Agent Orange illnesses, but VA has resisted any such addition to the numbers of veterans needing treatment. In an Associated Press interview, Dr. Terry Walters, deputy chief consultant for Post-Deployment Health, stated "we have to draw the line somewhere." Veterans object, pointing out that there is nothing in the law, the Federal Register, nor VA's own governing regulation, VA M21-1M, permitting such a line to be drawn, and suggest that Dr. Walter's position reflects unpublished policy, rather than lawful agency procedures. Dr. Walters even argues that few, if any, of the Vietnam war veterans were exposed to Agent Orange.

Post-Vietnam C-123 veterans are the subject of an IOM study due out in January 2015, addressing whether those aircrews will receive care for exposures aboard their former Agent Orange spray aircraft. Along with other veterans' organizations, they are alarmed at recent steps by VA to redefine the basic word "exposure" to exclude exposed veterans by linguistic tricks. VA's Office of General Counsel in September 2014 wrote that VA has the authority to redefine any words not otherwise defined in legislation, even if the redefined medical or scientific terminology conflicts with other federal agencies.

Recently, Vietnam-era veterans and scientists familiar with the issue 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.

The complete PDF of this Agent Orange report by Sidath Viranga Panangala is available:Date of Report: November 18, 2014: 22Order Number: R43790e-mail:congress@pennyhill.com Phone: 301-253-0881