A publication of Vietnam Veterans of America, Inc. ®
An organization chartered by the U.S. Congress
June 2000/July 2000
Veterans Benefits Update
Educating And Advocating
By Leonard J. Selfon, Esq., Director, Veterans Benefits Program
The Veterans Benefits Program recently conducted its annual week-long basic training course for prospective VVA veterans service representatives. Students from across the country gathered at George Washington University to take the course, which included such topics as Department of Veterans Affairs-related laws and regulations, claims adjudication procedures, appeals, personal hearings, ethics and professional responsibility. Upon successfully completing their final examinations, the students will become accredited service representatives and will be able to assist veterans and their families in prosecuting claims for VA benefits.
I would like to thank my fellow instructors Keith Snyder, Esq., Michael Wildhaber, Esq., Alexander Humphrey, Esq., and VVA National Service Representative Monte Wilson for their assistance in making this year’s course so successful. Thanks also to VVA Government Relations Director Rick Weidman for his discussion of legislative and healthcare issues.
Due to increasing demand, VVA will conduct an additional basic service representative training class in Washington State, as well as advanced service representative training in Illinois. Both are scheduled for the Fall of 2000.
Agent Orange and Diabetes
Following the release of an Air Force study that revealed a statistical link between exposure to Agent Orange and other chemical defoliants during service in Vietnam and adult-onset diabetes mellitus (Type II), we have received literally hundreds of inquiries concerning entitlement to VA compensation and treatment for diabetes. Here is what we know so far.
Almost a decade ago, Congress passed Public Law 102-4, the "Agent Orange Act of 1991". See 38 U.S.C. § 1116. The Act provided the Secretary of Veterans Affairs with the authority to establish presumptive service connection (i.e., entitlement to service connection for diseases without the necessity of providing medical evidence to establish an etiological nexus (link) between military service and a current disease) for diseases that have been scientifically demonstrated to be associated with exposure to the chemical defoliant Agent Orange, dioxin and other herbicidal agents during military service in Vietnam. Whenever the Secretary determines, on the basis of sound medical and scientific evidence, that a "positive association" exists between such exposure and the subsequent occurrence of disease, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for such disease. In making such a determination, the Secretary has been directed to take into account both reports received from the National Academy of Sciences’ Institute of Medicine (IOM) and all other sound medical and scientific information and analyses available to the Secretary. The association between disease and exposure is considered to be positive if credible evidence for the association is equal to or outweighs the credible evidence against such association.
Currently, nine diseases are presumptively considered to be the result of exposure to herbicidal agents used in Vietnam during the war. They are: chloracne or other acneform disease consistent with chloracne; Hodgkin’s disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; multiple myeloma; non-Hodgkin’s lymphoma; prostate cancer; respiratory cancers (i.e., cancer of the lung, bronchus, larynx or trachea); and certain specified soft-tissue sarcomas. Furthermore, exposure to these agents has been shown to be so detrimental that VA healthcare, vocational training and a monetary allowance are available for children of Vietnam veterans who suffer from spina bifida.
In April, 2000, VVA filed a petition with the Secretary of Veterans Affairs to immediately issue a regulation to add adult-onset diabetes mellitus (Type II) to the list of presumptively service-connected Agent Orange-related diseases. Our request was grounded in existing scientific evidence that demonstrates a positive association and a biological mechanism between exposure to Agent Orange/dioxin and adult-onset diabetes mellitus. In our opinion, these studies constitute credible evidence for the association that is equal to, or outweighs, the evidence against such association.
In his May, 2000 response, the Secretary declined to immediately establish presumptive service connection for diabetes mellitus as the result of exposure to herbicidal agents in Vietnam. Citing his authority to refer the scientific investigation of such matters to the IOM for a recommendation (under the Agent Orange Act of 1991), the Secretary advised that he had indeed referred the matter to the IOM, but that he had also requested an expeditious investigation. The Secretary also indicated that he expected the IOM’s report by September 30, 2000, and pledged to "move with dispatch once all necessary information is assembled."
We will keep you advised as events unfold.
The Vietnam In Country Effect
VVA filed a second petition for rulemaking with the Secretary of Veterans Affairs in April, 2000. That petition requested that the VA recognize and provide disability compensation for a demonstrated phenomenon unique to veterans who served in the Republic of Vietnam during the Vietnam War era. This phenomenon, which we have designated the Vietnam "in-country effect", takes into account the totality of the Vietnam veteran’s working and living environment during his or her service, as well as its cumulative physical and psychiatric effects on the body and mind.
Put simply, the in-country effect is the longitudinal impact of a veteran’s service in Vietnam during the Vietnam War era upon his or her current state of physical and psychiatric health. Rather than viewing a Vietnam veteran as suffering from multiple separate and distinct physical and/or psychiatric disorders, the focus should be on the interrelationship among such disorders, and between them and the environment in which the veteran served.
There can be no argument that Vietnam during the war constituted much more than a hostile environment due to enemy action. In-country veterans were exposed to land, air and water that teemed with toxic chemicals (such as Agent Orange/dioxin and other herbicidal agents) and endemic diseases (such as tropical and parasitic diseases and Hepatitis C). While these veterans currently suffer from a host of diseases and conditions in disproportionate numbers from those of similar age who did not serve in Vietnam, there is rarely evidence in their service medical records that reflect even early manifestations of the disorders in question.
This is because many of these diseases and conditions do not manifest themselves for many years or even decades after incurrence or onset. For example, by its very nature, post-traumatic stress disorder (PTSD) does not reveal sufficient symptomatolgy for diagnostic identification often until well after the stressful event (stressor) that engendered the disorder occurred. Similarly, Hepatitis C, which can be contracted by exposure to blood and blood products, has a lengthy latency period which can last for 30 years.
The guiding principle behind the in-country effect is the concept of totality. Total environmental impact upon total physical and mental health. The effect is somewhat analogous to what has been termed "Gulf War Syndrome", wherein veterans of the Gulf War suffer from a variety of symptoms and illnesses that have been associated with their service in the Persian Gulf. Following unprecedented legislation, the VA has recognized that the conditions under which these veterans served were so toxic and hostile that service connection is warranted, even though the diseases underlying the plethora of symptoms have not been diagnosed.
The difference between Gulf War veterans and Vietnam veterans, however, is that the latter veterans’ diseases are clearly defined and diagnosed. Since the end of the Vietnam War, there have been studies upon studies as to the relationship between Agent Orange exposure and disease, between stressful events and PTSD, between psychiatric disability and cardiovascular disease; between exposure to blood products and liver disease; etc. The lists go on endlessly. Vietnam veterans suffer from diseases associated with advanced age years before the rest of the general population does. They disproportionately suffer from premature arthritic disease, immunological, endocrine and neurological disorders, abnormal muscular conditions and vascular disease; often in combination.
To understand the in-country effect better, it is helpful to refer to the industrial medicine model. Vietnam during the war may be thought of as a workplace for American troops. Add to the physical and psychiatric dangers of combat, shelling, sniping and all the other horrors of war, toxic pollutants in the ground, in the air and in the water; parasites; fungi; viral and bacteriological diseases; to name but a few. To address the problem the workplace owner would test, treat and compensate the victims, and test and monitor apparently unaffected workers as well. In this case, the U.S. government (i.e., the VA) is cast in the role of the factory owner.
The VA is morally and legally charged with treating and compensating these veterans. As our collective understanding of the in-country effect grows, so must the VA’s responsibility for these veterans. Vietnam veterans face the daunting challenge of proving each element of each disease by a preponderance of the evidence, often where no evidence exists.
Moreover, VA medical care is based upon the establishment of service connection for current disability. As the largest health care provider to Vietnam veterans, the VA is in the unique position being able to test the Vietnam veterans currently receiving VA health care, or to retrieve prior test results, in order to study the in-country effect. The findings could then be used to identify in-country-related illness, which could in turn be treated and compensated for.
VVA is in the process of compiling pertinent scientific reports and empirical studies to assist the VA in carrying out its solemn obligation to care for Vietnam veterans. We plan to submit this information to the VA in the near future.
E-mail us at TheVeteran@vva.org