Veterans Affairs: Health Care and Benefits for
Veterans Exposed to Agent Orange
Sidath Viranga Panangala
Specialist in Veterans Policy
Douglas Reid Weimer
Legislative Attorney
October 30, 2009
Congressional Research Service
7-5700
www.crs.gov
RL34370
CRS Report for Congress
P
repared for Members and Committees of Congress
Veterans Affairs: Health Care and Benefits for Veterans Exposed to Agent Orange
Summary
Since the 1970s, Vietnam-era veterans have attributed certain medical illnesses, disabilities, and
birth defects to exposure to Agent Orange and other herbicides sprayed by the U.S. Air Force to
destroy enemy crops and remove forest cover. During the last 30 years, Agent Orange legislation
has established and updated the health and disability benefits of Vietnam veterans exposed to
herbicides.
Several laws were enacted by Congress to provide health care services to Vietnam veterans. The
Veterans’ Health Care, Training and Small Business Loan Act (P.L. 97-72) elevated Vietnam
veterans’ priority status for health care at Department of Veterans Affairs facilities by recognizing
a veteran’s own report of exposure as sufficient proof to receive medical care unless there was
evidence to the contrary. 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 has determined that
the condition did not result from exposure to Agent Orange.
Likewise, Congress passed several measures to address disability compensation issues of 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, the Agent Orange Act (P.L. 102-4) established for the
first time a presumption of service-connection for diseases associated with herbicide exposure.
P.L. 102-4 authorized the VA to contract with the IOM to conduct a scientific review 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.
Navy veterans of the Vietnam Era (those who served in Vietnam between January 9, 1962, and
May 7, 1975), who served offshore and were never physically present on Vietnamese soil, have
been contesting the presumption of service-connection for Agent Orange disability benefits. In
2006, the U.S. Court of Appeals for Veterans Claims (CAVC) ruled in Haas v. Nicholson that
navy veterans who served offshore during the Vietnam Era were entitled to a presumption of
exposure to Agent Orange. On May 8, 2008, the U.S. Court of Appeals for the Federal Circuit
(“the court”) issued a decision reversing the CAVC’s decision. On June 23, 2008, the attorneys
for Haas filed a petition with the court for a panel rehearing or a rehearing en banc (that is, the
whole panel of judges of the court). On October 9, 2008, the court denied the petition. Following
this action, Haas petitioned the U.S. Supreme Court for certiorari (asking the Supreme Court to
review the decision of a lower court). On January 21, 2009, the Supreme Court denied the
petition for writ of certiorari. A subsequent related proceeding, Haas v. Shinseki, on remand from
the court, involved the same plaintiff and the same factual situation. On March 10, 2009, the court
examined the BVA’s decision, vacated that decision, and remanded the claim for further
proceedings with the BVA. The Agent Orange Equity Act of 2009 (H.R. 2254), if enacted, would
clarify service in Vietnam to include inland waterways, the waters offshore, and airspace above
Vietnam. Under H.R. 2254, those who have been awarded the Vietnam Service Medal or the
Vietnam Campaign Medal would also be eligible for disability compensation based on
presumptive disease conditions relating to exposure to Agent Orange. This report will be updated
as events warrant.
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Veterans Affairs: Health Care and Benefits for Veterans Exposed to Agent Orange
Contents
Background ................................................................................................................................ 1
Health Care................................................................................................................................. 1
Presumption of Service-Connection ............................................................................................ 2
Disability Compensation ............................................................................................................. 2
Diseases Associated with Exposure to Certain Herbicide Agents ........................................... 3
Diseases Not Associated with Exposure to Certain Herbicide Agents..................................... 4
Children of Vietnam-Era Veterans ......................................................................................... 5
The Agent Orange Registry ......................................................................................................... 5
Non-Vietnam Veterans Exposed to Agent Orange ........................................................................ 5
Herbicide Exposure and Veterans Service in Korea................................................................ 6
Haas v. Peake (Previously Haas v. Nicholson) ............................................................................. 7
Haas v. Nicholson ................................................................................................................. 7
Subsequent Actions ............................................................................................................... 8
Haas v. Peake........................................................................................................................ 8
Subsequent Actions ............................................................................................................... 9
Proposed Legislation to Clarify Service in Vietnam ............................................................... 9
Epidemiologic Research on Vietnam Veterans ............................................................................. 9
Centers for Disease Control and Prevention......................................................................... 10
Air Force Health Study (AFHS) .......................................................................................... 10
Contacts
Author Contact Information ...................................................................................................... 11
Acknowledgments .................................................................................................................... 11
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Veterans Affairs: Health Care and Benefits for Veterans Exposed to Agent Orange
Background
Between 1962 and 1971, the U.S. Air Force sprayed approximately 107 million pounds of
herbicides in South Vietnam for the purpose of defoliation and crop destruction. The herbicides
sprayed during the Vietnam era contained mixtures of 2,4-dichlorophenoxyacetic acid (2,4-D),
2,4,5-trichlorophenoxyacetic acid (2,4,5-T), picloram, and cacodylic acid. The most extensively
used defoliant compound, a 50:50 combination of 2,4-D and 2,4,5-T, came to be known as
“Agent Orange” because of the orange-colored band placed on each chemical storage container.
One of the chemicals used in Agent Orange, 2,4,5-T, contained small amounts of dioxin. Other
herbicides employed in Vietnam such as “Agent Purple” and “Agent Green” also were
contaminated with dioxin. Collectively, these compounds were referred to as the “rainbow
defoliants.” The late 1960s saw a decline in the use of these herbicides when dioxin, already well
known to be highly toxic in animals, was implicated in birth defects seen in mice. By 1969,
spraying was restricted to remote areas, and by 1971, the Air Force ceased all spraying of Agent
Orange.
Since the 1970s, Vietnam-era veterans have voiced concerns about how exposure to Agent
Orange may have affected their health and caused certain disabilities, including birth defects in
their children. Initially, the Department of Defense (DOD) maintained that only a limited number
of U.S. military personnel, such as those operating aircraft or troops engaged in herbicide
spraying, could be positively linked to Agent Orange exposure. However, in 1979, the General
Accounting Office, now the Government Accountability Office (GAO), reported that ground
troops had also been exposed to Agent Orange, and DOD was forced to reconsider its prior
statements.1 In response to these concerns, Congress passed legislation to research the long-term
health effects on Vietnam veterans and to provide benefits and services to those who may have
been exposed to Agent Orange.
This report provides an overview of health care services and disability compensation benefits
available to Vietnam veterans, Children of Vietnam Era veterans, and non-Vietnam veterans
exposed to herbicides. This is followed by a discussion of the recent litigation pertaining to Navy
veterans of the Vietnam Era who served offshore and were never physically present on
Vietnamese soil. The report concludes with a discussion of epidemiologic research conducted to
study the health effects of Agent Orange and dioxin exposure on Vietnam veterans.
Health Care
Prior to the 1981 Veterans’ Health Care, Training and Small Business Loan Act (P.L. 97-72),
veterans who complained of Agent Orange-related illnesses were generally at the lowest priority
for treatment at Department of Veterans Affairs (VA) medical facilities because these conditions
were not considered “service-connected.”2 P.L. 97-72 elevated Vietnam veterans’ priority status
1 U.S. General Accounting Office, Ground Troops in South Vietnam Were in Areas Sprayed with Herbicide Orange,
GAO 80-23, November 1979, p. 1.
2 The term “service-connected” means, with respect to disability, that such disability was incurred or aggravated in the
line of duty in the active military, naval, or air service. VA determines whether veterans have service-connected
disabilities and, for those with such disabilities, assigns ratings from 0% to 100% based on the severity of the disability.
Percentages are assigned in increments of 10%.
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for health care at VA facilities by recognizing a veteran’s own report of exposure as sufficient
proof to receive medical care unless there was evidence to the contrary. 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 has determined that the condition did not result from
exposure to Agent Orange or the condition has been identified by the Institute of Medicine (IOM)
as having “limited/suggestive” evidence of no association between the occurrence of the disease
and exposure to a herbicide.3 The research by the IOM (part of the National Academies) and its
significance is addressed later in this report.4
Presumption of Service-Connection
Prior to discussing disability compensation for exposure to Agent Orange, it is essential to
provide a brief overview of presumptive service-connection. In general, a veteran is entitled to
compensation for disabilities incurred during active military service. There are several ways to
establish that a disability is service-connected. The application of statutory presumptions is only
one way to invoke compensation for a service-connected disability.5 In the context of VA claims
adjudication, a presumption could be seen as a procedure to relieve veterans of the burden to
prove that a disability or illness was caused by a specific exposure that occurred during service in
the Armed Forces. In other words, the onus is placed on the VA rather than the veteran. Most
presumptions are applied to chronic disease or illnesses that manifest after a period of time
following service.6
Disability Compensation
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 who may
have been exposed to Agent Orange. Veterans seeking compensation for a condition they thought
to be related to herbicide exposure had to provide proof of a service-connection that established
3 “Limited/suggestive” evidence of no association is when several adequate studies, covering the full range of levels of
exposure that human beings are known to encounter, are consistent in not showing a positive association between any
magnitude of exposure to herbicides and the outcome of disease.
4 For detailed information on eligibility for VA health care, see CRS Report R40737, Veterans Medical Care: FY2010
Appropriations, by Sidath Viranga Panangala.
5 38 C.F.R. § 3.307. The other methods of establishing service-connection include through direct service-connection—
that is, the facts, shown by evidence, establish that a particular injury or disease resulting in a disability was incurred
while in service in the Armed Forces (38 C.F.R. § 3.303); through aggravation during service—that is, a preexisting
injury or disease will be considered to have been aggravated while in service in the Armed Forces (38 C.F.R. § 3.306);
through proximity—that is, a disability, which is proximately due to, or the result of a service-connected disease or
injury which is considered to be service-connected (38 C.F.R. § 3.310). For example, a veteran developing
cardiovascular disease due to a service-connected amputation of a lower limb; and through a finding, the disability was
caused by medical care or vocational rehabilitation provided by the VA—disabilities caused by VA provided medical
care or vocational rehabilitation are treated as if they are service-connected (38 U.S.C. § 1151).
6 For a detailed discussion of presumption of service-connection, see U.S. Congress, House Committee on Veterans’
Affairs, Subcommittee on Disability Assistance and Memorial Affairs, Legislative Hearing on H.R. 1197, H.R. 3008,
H.R. 3795, H.R. 4274, H.R. 5155, H.R. 5448, H.R. 5454, H.R. 5709, H.R. 5954, H.R. 5985, and H.R. 6032, 110th Cong.,
2nd sess., June 12, 2008 (Washington: GPO, 2009), pp. 70-73.
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the link between herbicide exposure and disease onset. P.L. 98-542 authorized disability
compensation payments to Vietnam veterans for the skin condition chloracne, which is associated
with herbicide exposure. In 1991, the Agent Orange Act (P.L. 102-4) established for the first time
a presumption of service-connection for diseases associated with herbicide exposure. Under the
Agent Orange Act, veterans seeking disability compensation for diseases they thought to be
associated with herbicides no longer were required to provide proof of exposure. P.L. 102-4
authorized the VA to contract with the IOM to review and summarize the scientific evidence
concerning the association between exposure to herbicides used in support of military operations
in Vietnam during the Vietnam Era and each disease suspected to be associated with such
exposure. P.L. 102-4 mandated that IOM determine, to the extent possible: (1) whether there is a
statistical association between the suspect diseases and herbicide exposure, taking into account
the strength of the scientific evidence and the appropriateness of the methods used to detect the
association; (2) the increased risk of disease among individuals exposed to herbicides during
service in Vietnam during the Vietnam Era; and (3) whether there is a plausible biological
mechanism or other evidence of a causal relationship between herbicide exposure and the health
outcome.7 The VA is then 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. Once the VA has established
presumption of service-connection for a certain disease or medical condition, a Vietnam veteran
with that disease is eligible for disability compensation. The amount of compensation is based on
the degree of disability and, again, veterans are compensated only for approved conditions that
have demonstrated sufficient evidence of an association with herbicide exposure.
Diseases Associated with Exposure to Certain Herbicide Agents
Currently, the conditions that are presumptively recognized for service-connection for Vietnam
veterans are chloracne (must occur within one year of exposure to Agent Orange); non-Hodgkin’s
lymphoma; soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or
mesothelioma); Hodgkin’s disease; porphyria cutanea tarda (must occur within one year of
exposure); multiple myeloma; respiratory cancers, including cancers of the lung, larynx, trachea,
and bronchus; prostate cancer; acute and subacute transient peripheral neuropathy (must appear
within one year of exposure and resolve within two years of date of onset); type II diabetes; and
chronic lymphocytic leukemia (CLL).8 In September 2008, the VA announced that it would
establish a presumption of service-connection for amyotrophic lateral sclerosis (ALS) for any
7 This comprehensive review by the IOM has been repeated at least every two years since 1994 and is authorized to
continue until October 2014. Veterans and Agent Orange weighs the strengths and limitations of the complete body of
epidemiologic evidence on herbicide exposure and manifestation of certain health outcomes. This review then assigns
the investigated medical conditions to one of four categories ranging from “sufficient evidence of an association” to
“limited or suggestive evidence of no association.” For example, in the 2008 Veterans and Agent Orange update, this
information is available in Table S-1. The latest update was compiled in 2008 and released in July 2009, available at
http://www.nap.edu/.
8 38.C.F.R. § 3.309(e). In 2003, based on the 2002 update of the IOM report Veterans and Agent Orange, the VA
issued a regulation designating chronic lymphocytic leukemia (“CLL”) and other medical conditions as diseases
associated with dioxin. CLL was therefore to be considered “service connected.” However, the VA did not re-
adjudicate prior claims for CLL, nor did it pay retroactive benefits, arguing that compensation was not applicable to
diseases determined to be service-connected after September 20, 2002, the original sunset date of the Agent Orange Act
of 1991. Following extensive litigation, the U.S. Court of Appeals for the Ninth Circuit (Nehmer v. VA, 494 F.3d 846
(9th Cir. Cal. 2007)) affirmed the district court decision (Nehmer v. VA, 32 F.Supp. 2d 1175 (N.D. Cal. 1999)) and, in
effect, confirmed that the VA was obligated to pay disability benefits to all “Agent Orange” veterans with CLL,
including those diagnosed after September 20, 2002.
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veteran who develops the disease at any time after separation from service (it should be noted that
this presumptive condition is not limited to veterans who were potentially exposed to Agent
Orange). This would relieve the veteran of the burden to prove that ALS was caused by a specific
exposure or activity that occurred during service in the Armed Forces. To be eligible for this
presumptive service-connection, a veteran must have served on continuous active duty for a
period of 90 days or more.9
In November 2008, the VA issued a proposed regulation to establish presumptive service-
connection for AL amyloidosis based on exposure to herbicides used in the Republic of Vietnam
during the Vietnam Era.10 VA made this decision based on the IOM report Veterans and Agent
Orange: Update 2006, which concluded that ‘‘there is limited or suggestive evidence of an
association between exposures to the compounds of interest [Agent Orange] and AL
amyloidosis.’’11 Beginning May 7, 2009, veterans who served in Vietnam and who are diagnosed
with AL amyloidosis may be eligible for disability compensation.12
On October 13, 2009, VA issued a press release stating that it is establishing a presumptive
service-connection for three specific illnesses based on the IOM report Veterans and Agent
Orange: Update 2008. The illnesses affected by the recent decision are “B cell leukemias, such as
hairy cell leukemia; Parkinson’s disease; and ischemic heart disease.”13
Diseases Not Associated with Exposure to Certain Herbicide
Agents
The Agent Orange Act of 1991 (P.L. 102-4) also mandated the VA to publish a notice when the
VA determines that a presumption of service-connection is not warranted. On June 12, 2007,
based on the 2004 IOM report on Agent Orange, the VA issued a notice that a presumption of
service-connection is not warranted based on exposure to herbicides used in Vietnam during the
Vietnam Era for the following medical conditions: Hepatobiliary cancers; oral, nasal, and
pharyngeal cancer; bone and joint cancer; skin cancers (melanoma, basal, and squamous cell);
breast cancer; female reproductive cancer (cervix, uterus, and ovary); testicular cancer; urinary
bladder cancer; renal cancer; leukemia (other than B cell leukemias and chronic lymphocytic
leukemia [CLL]); abnormal sperm characteristics and infertility; spontaneous abortion; neonatal
or infant death and stillbirth in offspring of exposed individuals; low birthweight in offspring of
exposed individuals; neurobehavioral disorders (cognitive and neuropsychiatric); chronic
peripheral nervous system disorders; respiratory disorders; gastrointestinal, metabolic, and
digestive disorders (changes in liver enzymes, lipid abnormalities, ulcers); immune system
disorders (immune suppression, autoimmunity); circulatory disorders; endometriosis; effects on
thyroid homeostasis; gastrointestinal tumors (esophagus, stomach, pancreas, colon, rectum); brain
9 U.S. Department of Veterans Affairs, “Presumption of Service Connection for Amyotrophic Lateral Sclerosis,” 73
Federal Register 54691-54693, September 23, 2008.
10 U.S. Department of Veterans Affairs, “Presumptive Service Connection for Disease Associated With Exposure to
Certain Herbicide Agents: AL Amyloidosis,” 73 Federal Register 65280-65282, November 3, 2008.
11 Ibid.
12 U.S. Department of Veterans Affairs, “Presumptive Service Connection for Disease Associated With Exposure to
Certain Herbicide Agents: AL Amyloidosis,” 74 Federal Register 21258-21260, May 7, 2009.
13 U.S. Department of Veterans Affairs, “VA Extends “Agent Orange” Benefits to More Veterans, Parkinson’s Disease,
Two Other Illnesses Recognized,” press release, October 13, 2009.
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tumors; and any other condition for which the VA has not specifically determined a presumption
of service-connection.14
Children of Vietnam-Era Veterans
Vietnam veterans’ children with the birth defect spina bifida are eligible to receive a monthly
monetary allowance in addition to health care services (also see “Herbicide Exposure and
Veterans Service in Korea”). However, if a birth defect is determined to be familial in a particular
family, is a birth-related injury, or is a fetal or neonatal infirmity with well-established causes, it
will not be a covered birth defect. The Veterans Benefits and Health Care Improvement Act of
2000 (P.L. 106-419) authorized similar benefits and services for children with certain birth
defects who were born to female Vietnam veterans. 15 The Veterans’ Mental Health and Other
Care Improvements Act of 2008 (P.L. 110-387) authorized the VA to furnish comprehensive
health care services to beneficiaries born with spina bifida. Prior to the enactment of P.L. 110-
387, health care services to children born with spina bifida were limited to only health care that
was needed to treat spina bifida and associated conditions.
The Agent Orange Registry
The Agent Orange Registry was established in 1978 by the VA for Vietnam veterans concerned
about the health effects of exposure to Agent Orange. A veteran choosing to register is eligible for
an examination consisting of a medical history, a physical examination, and a series of laboratory
tests. Each veteran is also required to answer a set of questions relevant to exposure. In
September 2000, the Agent Orange Registry was expanded to include veterans who served in
Korea in 1968 and 1969. Since August 2001, the registry is accessible to all U.S. veterans
potentially exposed to dioxin or other toxic substances used in herbicides while engaged in
military activity. Participating in the registry does not give exposed military personnel automatic
access to health and disability compensation benefits. As of June 2008, more than 506,000
veterans have participated in the registry.16
Non-Vietnam Veterans Exposed to Agent Orange
Under current law, only Vietnam veterans who served in-country are eligible to receive health
care benefits and compensation for service “in Vietnam.”17 However, under certain
14 U.S. Department of Veterans Affairs, “Health Outcomes Not Associated With Exposure to Certain Herbicide
Agents.” 72 Federal Register 32395-32407, June 12, 2007.
15 Covered birth defects include but are not limited to the following: (1) Achondroplasia; (2) Cleft lip and cleft palate;
(3) Congenital heart disease; (4) Congenital talipes equinovarus (clubfoot); (5) Esophageal and intestinal atresia; (6)
Hallerman-Streiff syndrome; (7) Hip dysplasia; (8) Hirschprung’s disease (congenital megacolon); (9) Hydrocephalus
due to aqueductal stenosis; (10) Hypospadias; (11) Imperforate anus; (12) Neural tube defects (including spina bifida,
encephalocele, and anencephaly); (13) Poland syndrome; (14) Pyloric stenosis; (15) Syndactyly (fused digits); (16)
Tracheoesophageal fistula; (17) Undescended testicle; and (18) Williams syndrome (38 C.F.R. § 3.815)
16 There were a total of 454,069 initial examinations, and 52,115 follow-up examinations; see
http://www.publichealth.va.gov/docs/agentorange/reviews/ao_newsletter_aug08.pdf.
17 Service in the Republic of Vietnam includes service in the waters offshore and services in other locations if
conditions of service involved duty or visitation in the Republic of Vietnam.(38 C.F.R. §3.313(a); 38 C.F.R.
(continued...)
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circumstances, veterans are eligible for health care and compensation benefits for service outside
of Vietnam. A non-Vietnam veteran who claims that an injury or illness resulted from exposure to
Agent Orange while serving in the military can apply for service-connected benefits. But unlike
Vietnam veterans, non-Vietnam veterans are required to prove they were exposed to Agent
Orange. The VA requires the following information in the veteran’s benefit application: a medical
diagnosis of a disease or condition the VA recognizes as associated with Agent Orange; evidence
of exposure to a chemical contained in the herbicides used in Vietnam; and medical evidence that
the disease began or manifested within the designated time frame, if any, for that disease.18 The
DOD has also published a list of areas outside of Vietnam where Agent Orange was used as well
as a list of specific areas within the continental U.S. and U.S. territories.19
Herbicide Exposure and Veterans Service in Korea
In 2003, Congress passed the Veterans Benefits Act of 2003 (P.L. 108-183).20 Among other
things, section 102 of the Act expanded benefits (health care, monetary allowance, vocational
training, and education) for children born with spina bifida of certain veterans who served in
Korea.21 To be eligible for benefits, the veteran must have served in the active military, naval, or
air service in or near the Korean Demilitarized Zone (DMZ) between September 1, 1967, and
August 31, 1971. Furthermore, even if a veteran served in or near the DMZ within the specified
time period, P.L. 108-183 requires the VA in consultation with the DOD to determine whether the
veteran was exposed to herbicides during such service. 22 However, current law does not establish
a presumption of herbicide exposure based on service in or near the Korean DMZ. In July 2009,
the VA proposed regulations to establish a presumption of exposure to herbicide to any veteran
who served between April 1968 and July 1969 in a unit determined by the VA and the DOD to
have operated in an area in or near the Korean DMZ in which herbicides were applied.23
However, according to the proposed regulations, if a veteran served in or near the Korean DMZ
during the period between September 1, 1967, and August 31, 1971, but not within the time
(...continued)
3.307(a)(6)(iii)).
18 If a veteran did not serve in the Republic of Vietnam, but was exposed to an herbicide agent defined in 38 C.F.R.
3.307(a)(6) during active military service, has a disease on the list of diseases subject to presumptive service-
connection, VA will presume that the disease is due to the exposure to herbicides. Additional information on benefits
and compensation for veterans exposed to Agent Orange is available at the U.S. Department of Veterans Affairs, “VA’s
Guide on Agent Orange Claims, Compensation and Pension Service,” updated April 27, 2004, pp. 1-7, at
http://www.vba.va.gov/bln/21/Benefits/Herbicide/AOno3.htm.
19 For a detailed list of sites within and outside the U.S., see http://www.publichealth.va.gov/exposures/agentorange/
outside_vietnam.asp.
20 P.L. 108-183, among other the bills, contained provisions from H.R. 2297 (H.Rept. 108-211) and S. 1132 (S.Rept.
108-169).
21 This applies to all forms and manifestations of spina bifida, except spina bifida occulta.
22 38 U.S.C. § 1821. Furthermore, the DOD has advised VA that herbicides were not applied within the DMZ, but were
applied in some adjacent areas. Specifically, the DOD has reported that herbicides were applied between April 1968
and July 1969 along a strip of land 151 miles long and up to 350 yards wide along the southern edge of the DMZ north
of the civilian control line. The herbicide agents were applied through hand spraying and hand distribution of pelletized
herbicides. According to the DOD, there was no aerial spraying. The DOD also has provided the VA a list of the
military units that are currently known to have operated in that area during the period that herbicides were applied [see
U.S. Department of Veterans Affairs, “Herbicide Exposure and Veterans With Covered Service in Korea,” 74 Federal
Register 36640-36648, July 24, 2009].
23 U.S. Department of Veterans Affairs, “Herbicide Exposure and Veterans With Covered Service in Korea,” 74
Federal Register 36640-36648, July 24, 2009.
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periods (April 1968 and July 1969) and geographic locations that would qualify for a presumption
of exposure under this proposed rule, such service would qualify for benefits only if the VA
determines that the veteran was actually exposed to herbicides during such service.24
Haas v. Peake25 (Previously Haas v. Nicholson)26
Haas v. Nicholson
On August 16, 2006, the U.S. Court of Appeals for Veterans Claims (CAVC) determined that the
veterans who had served in the waters off Vietnam (this class of veterans is generally known as
“blue water” veterans) were entitled to a presumption of exposure to Agent Orange.27 Prior to this
CAVC decision,28 the VA’s interpretation of 38 CFR 3.307(a)(6)(iii) was that a service member
had to have actually set foot on Vietnamese soil or served on a craft in its rivers (also known as
“brown water” veterans) in order to be entitled to the presumption of exposure to Agent Orange.
The CAVC specifically held the following: (1) the reference to service “in Vietnam” as used in
the statute was ambiguous because there are many definitions of the territory of a nation, and (2)
the VA’s regulation defining Vietnam service for purposes of granting the presumption of
exposure to herbicides, 38 CFR 3.307(a)(6)(iii), was ambiguous when viewed together with 38
CFR 3.313, which also defines service in Vietnam. Because the CAVC determined that ambiguity
was present, it also examined the VA’s Adjudication Procedure Manual M21-1 (the M21-1
manual)29 provision from 1991, which stated that the receipt of a Vietnam Service Medal (VSM)
would be considered proof of Vietnam service in the absence of “contradictory evidence.” In
2002, the VA issued a new M21-1 provision advising VA benefit adjudicators that the receipt of
the VSM could indicate service on land in Vietnam but, by itself, was not proof of service in
Vietnam because a veteran may have received this medal for service in locations other than
Vietnam.30 The CAVC determined the M21-1 provision to be a substantive rule establishing
entitlement to the presumption of exposure to herbicides, and held that the VA’s “attempted
rescissions” of that M21-1 provision were void because they failed to comply with the notice and
comment requirements of the Administrative Procedures Act (APA).31
24 Ibid.
25 525 F.3d 1168 (Fed. Cir. 2008).
26 20 Vet. App. 257 (2006). Jonathan L. Haas was a member of the U.S. Navy Reserve components that served in the
waters off Vietnam and received the Vietnam Service Medal (VSM). He claimed that his diabetes mellitus and
resulting medical complications were related to his exposure to Agent Orange that drifted offshore, and filed a
disability claim with the VA. The VA denied the claim on the grounds that servicemembers had to have actually set
foot on Vietnamese soil in order to be eligible for benefits.
27 For further information on the CAVC, see CRS Report RS22561, Veterans Affairs: The U.S. Court of Appeals for
Veterans Claims—Judicial Review of VA Decision Making, by Douglas Reid Weimer.
28 U.S. Court of Appeals for Veterans Claims (CAVC), 20 Vet. App. 257 (2006).
29 The M21-1 is an internal manual used to provide guidance to VA benefit adjudicators on procedures for adjudicating
claims for compensation, pension, dependency and indemnity compensation, accrued benefits, and burial allowance.
30 The VSM was awarded to all members of the Armed Forces who served between July 3, 1965, and March 28, 1973,
either (1) in Vietnam and contiguous waters and airspace thereover, or (2) in Thailand, Laos, or Cambodia, or airspace
thereover, in direct support of operations in Vietnam. See http://www.history.navy.mil/medals/vsn.htm.
31 5 U.S.C. § 706(2)(A).
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Subsequent Actions
On September 21, 2006, Secretary Nicholson issued a memorandum directing the Board of
Veterans Appeals (BVA) to withhold adjudicating all service-connected claims based on exposure
to herbicides in which the only evidence of exposure is the receipt of the Vietnam Service Medal
or service on a vessel off the shore of Vietnam.32 On December 11, 2006, the VA issued a
memorandum to its regional offices, instructing them that claims related to Haas v. Nicholson
should not be adjudicated until the litigation is resolved. As a result, at this time, the BVA has
suspended action on Haas v. Nicholson claims.33
The VA appealed the CAVC decision to the U.S. Court of Appeals for the Federal Circuit in
Washington, D.C. Oral argument was held on November 7, 2007.
On November 27, 2007, the VA published a Federal Register notice proposing to rescind
provisions of its Adjudication Procedures Manual, M21-1 (M21-1), that were found by the CAVC
not to have been properly rescinded under the APA.34 This action was taken by the VA as a
preemptive measure in the event the Department did not prevail on appeal in Haas v. Nicholson.
Haas v. Peake
Haas v. Peake is the case name on appeal of the previously discussed Haas v. Nicholson. On May
8, 2008, the U.S. Court of Appeals for the Federal Circuit (“court”) issued a decision reversing
the prior CAVC ruling. The court concluded that the VA’s interpretation of “service in Vietnam”
as requiring the servicemember’s presence at some point on the landmass or the inland waters of
Vietnam was based on a permissible construction of the statute.35 The court also stated in its
opinion that “Mr. Haas is free to pursue his claim that he was actually exposed to herbicides while
on board his ship as it traveled near the Vietnamese coast.”36 However, according to the court’s
opinion, he is not entitled to the benefit of a presumption related to Agent Orange exposure.37
On June 23, 2008, the attorneys for Haas filed a petition with the court for a panel rehearing or a
rehearing en banc (that is, the whole panel of judges of the court).38 On October 9, 2008, the court
denied the petition for rehearing.39 Following this action, Haas petitioned the U.S. Supreme Court
for certiorari.40 On January 21, 2009, the Supreme Court denied the petition for writ of
certiorari.41
32 Memorandum No. 01-06-24 Subj. Processing of claims for compensation on exposure to herbicides affected by
Haas. v. Nicholson-imposition of stay. See http://vets.yuku.com/topic/4439/t/HAAS-v-NICHOLSON-IMPOSITION-
OF-STAY.html.
33 For further details on the BVA, see CRS Report RL33704, Veterans Affairs: The Appeal Process for Veterans’
Claims, by Douglas Reid Weimer.
34 Department of Veterans Affairs, “Rescission of Manual M21-1 Provisions Related To Exposure to Herbicides Based
on Receipt of the Vietnam Service Medal,” 72 Federal Register 66218-66219, November 27, 2007.
35 Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008).
36 Ibid., p. 1197.
37 Ibid.
38 No. 2007-7037.
39 544 F.3d 1306 (Fed. Cir. 2008).
40 38 U.S.C. § 7292(c). A petition for certiorari is a request for the Supreme Court to review the decision of the lower
(continued...)
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Subsequent Actions
There was a subsequent related proceeding, Haas v. Shinseki,42 on remand from the U.S. Court of
Appeals for the Federal Circuit (“the court”), which involved the same plaintiff and the same
factual situation. On March 10, 2009, the court vacated the BVA’s decision and remanded the
claim for further proceedings with the BVA. The effect of this decision is that the veteran was
given an opportunity to prove his claim to service-connected benefits for his condition, on the
basis of medical and factual evidence.43 The BVA will reexamine the case and determine whether
Haas has a compensable service connected disability, based on the medical and evidentiary
records that Haas presents.
Proposed Legislation to Clarify Service in Vietnam
Representative Bob Filner, the Chairman of the House Veterans’ Affairs Committee, has
introduced the Agent Orange Equity Act of 2009 (H.R. 2254). This legislation, if enacted, would
clarify service in Vietnam to include inland waterways, the waters offshore, and airspace above
Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. Under H.R.
2254, those who have been awarded the Vietnam Service Medal or the Vietnam Campaign Medal
and those veterans who served on Johnston Island during the period beginning on April 1, 1972,
and ending on September 30, 1977, would also be eligible for disability compensation based on
presumptive disease conditions relating to exposure to Agent Orange.
Epidemiologic Research on Vietnam Veterans
Because of the controversy surrounding the use of herbicides in Vietnam, significant research on
the health effects of Agent Orange and dioxin exposure has occurred over the last 30 years. The
majority of studies have focused on morbidity and mortality of Vietnam veterans and are
conducted by the VA, the Centers for Disease Control and Prevention (CDC), the U.S. Air Force,
and the various veteran service organizations (VSOs). Despite the abundance of research
completed, epidemiologic studies on Agent Orange are historically burdened by the lack of
reliable exposure data. The lack of accurate data remains a continued source of frustration for
researchers, government officials, and Vietnam-era veterans seeking conclusive information on
the health risks of exposure to Agent Orange. Below is a brief description of epidemiologic
research conducted by the various agencies.
(...continued)
court. See http://www.techlawjournal.com/glossary/legal/certiorari.htm.
41 129 S.Ct. 1002 (2009). This action had the effect of affirming the decision of the Court of Appeals which had
previously reversed the decision of the CAVC.
42 22 Vet. App. 385; 2009 U.S. App. Vet. Claims LEXIS 315 (2009).
43 As a result of the various judicial decisions, Haas is not able to use the “agent orange presumption” in proving his
claim. Rather, he must prove his claim through factual and medical evidence.
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Centers for Disease Control and Prevention
In 1979, the VA was authorized to conduct an epidemiologic study to determine the association
between Agent Orange and the medical concerns of Vietnam-era veterans. In carrying out the
congressional mandate, the VA was faced with substantial challenges in determining study design
and research protocol, and in 1982, responsibility for the research was transferred from the VA to
the CDC. The CDC also faced its own obstacles in research design and were delayed by the lack
of exposure data. In response to the difficulty in obtaining exposure data, the CDC attempted an
Agent Orange Validation Study to see if indirect estimates of exposure from military records and
self-reports could be compared to dioxin serum levels in veterans as a method of determining true
exposure. After investigation, the CDC reported that military records and self-reports obtained
from the Agent Orange Validation Study were inadequate for identifying the exposed individuals
necessary for a large epidemiologic study of dioxin effects. Secondary to the problems faced by
the VA and the CDC, a group of government panels and advisory boards determined that the
congressionally mandated Agent Orange Study was improbable, and the CDC investigation
ended.44
Air Force Health Study (AFHS)
Operation Ranch Hand was responsible for spraying herbicides in Vietnam between 1962 and
1971. In 1982, Air Force investigators began a study investigating the long-term health problems
of pilots and ground crews engaged in spraying herbicides in Vietnam. The study cohort consisted
of more than 1,200 Ranch Hand (the unit responsible for aerially spraying herbicides in Vietnam)
veterans and more than 19,000 comparison Air Force veterans who did not spray herbicides.
AFHS data collected between 1979 and 1993 revealed no statistically significant differences
between the Ranch Hand personnel and the comparison cohort both for all-cause mortality and
for cause-specific mortality. The exception was an increased mortality rate for circulatory
diseases seen in enlisted ground crew personnel, a group at higher risk for skin exposure to
herbicides. In 2005, an AFHS update reviewing 20 years of epidemiologic data on mortality rates
reported a small, but significant, increase in all-cause death rates for Ranch Hand veterans.45 After
20 years of analysis, data collection, and review, a recent IOM publication indicated that diabetes
presented as the most serious health problem observed in the AFHS. Type II diabetes was added
to the list of service-connected diseases for Vietnam veterans exposed to Agent Orange in 2001.46
The long-standing AFHS ended on September 30, 2006.
Section 714 of the John Warner National Defense Authorization Act, 2007 (P.L. 109-364),
required the Secretary of the Air Force to transfer custody of the AFHS data to the Medical
Follow-Up Agency (an agency under the IOM’s Board of Military and Veterans Health). This
decision to retain the AFHS materials was based on the scientific merit of maintaining herbicide
44 The government panel and advisory groups included the CDC advisory group, the Science Panel of the Domestic
Policy Council’s Agent Orange Working Group, and the Agent Orange Advisory Panel of the Congressional Office of
Technology Assessment.
45 Norma Ketchum and Joel Michalek, “Postservice Mortality of Air Force Veterans Occupationally Exposed to
Herbicides During the Vietnam War: 20-year follow-up results,” Military Medicine, vol. 170, no. 5 (May 2005), pp.
406-413.
46 National Academies, Institute of Medicine, Disposition of the Air Force Health Study, 2006, p. 55., and see U.S.
Department of Veterans Affairs , “Disease Associated With Exposure to Certain Herbicide Agents: Type 2 Diabetes,”
66 Federal Register 2376, January 11, 2001.
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exposure records as a valuable source of medical and epidemiologic data as recommended by the
IOM study.47 Furthermore, P.L. 109-364 required the Secretary of Defense to make $850,000
available to the Air Force in preparation for the transfer of study data to the IOM. An additional
$200,000 was to be reimbursed from the DOD to the IOM for costs related to the transfer of study
materials from the Air Force.48
The Veterans’ Benefits Improvement Act of 2008 (P.L. 110-389) authorized the Medical Follow-
Up Agency at its discretion to conduct additional research on the assets transferred to the Agency
from the AFHS. The Veterans’ Benefits Improvement Act of 2008 also authorized $1.2 million for
each fiscal year for the maintenance, management, and operation of the assets transferred, and
$250,000 for each fiscal year for the conduct of additional research. These activities would be
funded by the VA and are authorized through September 30, 2012. Moreover, P.L. 110-389
requires the Medical Follow-Up Agency to submit a report to Congress assessing the feasibility
and advisability of conducting additional research on the AFHS after September 30, 2012.
Author Contact Information
Sidath Viranga Panangala
Douglas Reid Weimer
Specialist in Veterans Policy
Legislative Attorney
spanangala@crs.loc.gov, 7-0623
dweimer@crs.loc.gov, 7-7574
Acknowledgments
Peter Eliot Barber, an intern in the Domestic Social Policy Division, provided research assistance for this
report.
47 Ibid., p. 4.
48 U.S. Congress, Conference Committees, National Defense Authorization Act for Fiscal Year 2007, a report to
accompany H.R. 5122, 109th Congress, 2nd sess., H.Rept. 109-702. Congressional Record, daily edition, vol. 152
(September 29, 2006), pp. H8061-H8536.
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