Veterans Affairs: Presumptive Service
Connection and Disability Compensation
Sidath Viranga Panangala, Coordinator
Specialist in Veterans Policy
Christine Scott
Specialist in Social Policy
Douglas Reid Weimer
Legislative Attorney
Umar Moulta-Ali
Analyst in Disability Policy
March 28, 2011
Congressional Research Service
7-5700
www.crs.gov
R41405
CRS Report for Congress
Prepared for Members and Committees of Congress
Veterans Affairs: Presumptive Service Connection and Disability Compensation
Summary
The United States has provided benefits in varying degrees to those who have worn the uniform
and suffered disabilities in service to the nation. In general, a veteran is entitled to compensation
for disabilities incurred in or aggravated during active military, naval, or air service. It should be
noted that not all persons who served in the military are considered veterans for purposes of
veterans benefits. Veterans could meet the burden of proving that their disabilities are service-
connected through their military records, which may clearly describe and document the
circumstances and medical treatment for an injury or an illness incurred while in service as well
as any resulting disability. However, where the manifestation of the disability is remote from the
veteran’s service and any relationship between the disability and service is not readily apparent,
the burden of proving service connection can be a challenge. In such circumstances, Congress and
the Department of Veterans Affairs (VA) have relied on presumptions. 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. When a disease is designated as presumptively service-connected, the
individual veteran does not need to prove that the disease was incurred during service.
The legislative history of veterans’ disease presumptions dates back to 1921 when Congress
established a presumption of service connection with an amendment (P.L. 67-47) to the War Risk
Insurance Act (P.L. 63-193). It established presumptions of service connection for tuberculosis
and neuropsychiatric disease (known today as psychosis) occurring within two years of separation
from active duty military service. In the following years, additions to the presumptive list were
made by regulation, executive order, and legislation. In the past 22 years, Congress has on three
separate occasions created presumptive programs for three distinct groups of veterans: the so-
called atomic veterans, who were exposed to radiation from above-ground nuclear tests and the
atomic bombs detonated in Japan; Vietnam veterans; and Gulf War veterans. In addition,
Congress has added certain disease conditions to the list of presumptions for specific groups of
veterans such as former prisoners of war (POWs).
In 1991, the Agent Orange Act (P.L. 102-4) established for Vietnam veterans a presumption of a
service connection for diseases associated with exposure to Agent Orange and other herbicides.
For the first time, this act required the VA to contract with the Institute of Medicine (IOM) to
conduct, every two years, a scientific review of the evidence linking certain medical conditions to
herbicide exposure. The VA was instructed to use the IOM’s findings, and other evidence, to issue
regulations establishing a presumption for any disease for which there is scientific evidence of an
association with herbicide exposure.
However, since an increasing proportion of service-connected disability compensation is paid
through a presumptive decision-making process, some have raised several policy questions with
regard to the current process. This report discusses presumptive service connection, its legislative
history, and current challenges in making evidence-based determinations of presumptions. It also
discusses the Agent Orange Act (P.L. 102-4) and suggests implications of the process established
by the act for future presumptive service-connected determinations.
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Veterans Affairs: Presumptive Service Connection and Disability Compensation
Contents
Introduction ................................................................................................................................ 1
Organization of this Report ................................................................................................... 2
Disability Compensation for Veterans.......................................................................................... 3
Presumptive Service Connection ................................................................................................. 4
What is a Presumption?.........................................................................................................4
Legislative History of Presumptions ...................................................................................... 4
1920s-1940s.................................................................................................................... 5
1950s-1980s.................................................................................................................... 6
1990s-2000 ..................................................................................................................... 7
Establishment of Agent Orange Presumptions ............................................................................. 9
Historical Context: 1977-1991 .............................................................................................. 9
Agent Orange Act of 1991 (P.L. 102-4) ............................................................................... 13
Current Process for Presumptive Disability Decisions ............................................................... 16
VA Presumptive Disability Decisions .................................................................................. 17
Role of the Institute of Medicine (IOM) ........................................................................ 18
VA Presumptive Disability Deliberation Process............................................................ 19
Presumptive Disability Decisions: Challenges and Concerns ............................................... 20
Challenges Facing IOM Presumptive Disability Committees ......................................... 20
Concerns Expressed by Presumptive Disability Policy Makers ...................................... 21
Policy Options .................................................................................................................... 21
Retain the Current Process ............................................................................................ 21
Refine the Current Disability Presumption Process........................................................ 22
Figures
Figure 1. Roles of the Participants Involved in the Presumptive Disability Decision-
Making Process for Veterans .................................................................................................. 17
Tables
Table A-1. Presumptive Service-Connected Diseases Based on Exposure to Agent
Orange, 1985-2010 ................................................................................................................ 24
Appendixes
Appendix A. Disease Conditions Presumptively Service-Connected .......................................... 24
Appendix B. Summary of VA’s Review of IOM Reports............................................................ 27
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Veterans Affairs: Presumptive Service Connection and Disability Compensation
Contacts
Author Contact Information ...................................................................................................... 29
Acknowledgments .................................................................................................................... 29
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Veterans Affairs: Presumptive Service Connection and Disability Compensation
Introduction
Beginning with the early colonial settlements of America, the nation has provided benefits in
varying degrees to those who have worn the uniform and suffered physical disabilities in service
to the nation—sacrifices that are inherent to the profession of arms. In 1718, for instance, the
colony of Rhode Island enacted legislation that provided benefits not only to every officer,
soldier, or sailor who served in the colony’s armed services, but also to the wives, children,
parents, and other relations who had been dependent upon a slain servicemember. “The physically
disabled were to have their wounds carefully tended and healed at the colony’s expense, while at
the same time an annual pension was provided to him out of the general treasury sufficient for the
maintenance of himself and family, or other dependent relatives.”1 These benefits were continued
by the Continental Congress, which passed a resolution on August 26, 1776, providing for
disabled veterans to receive half of their monthly pay for life or for as long as their disability
existed.2 From the Revolutionary War to the Global War on Terrorism (GWOT),3 as the nature of
the nation’s wars has evolved, and as the needs of each generation of veterans who fought those
wars have changed, Congress has debated, legislated, and revised benefits provided to veterans.
In general, veterans are eligible for disability compensation if it can be demonstrated that the
disabling condition or illness is linked to military service. Veterans could meet the burden of
proving that their disabilities were service-connected through their military records, which may
clearly describe and document the circumstances and medical treatment for an injury or an illness
incurred while in service as well as any resulting disability.4 However, where the manifestation of
the disabling disease or condition is remote from the veteran’s service and any relation between
the disability and service is not readily apparent, the burden of proving service connection can be
a challenge. In such circumstances, Congress and the Department of Veterans Affairs (VA) have
relied on presumptions to ease the burden placed on the veteran. Since the early 1920s, almost
every Congress has examined the issue of whether one may presume that a veteran’s disability is
service-connected when there is no clear evidence to establish an illness or disability is caused or
aggravated by a veteran’s military service. More recently, Congress and the VA have relied on
scientific evidence to establish presumptions. However, when the scientific evidence is
incomplete and there is uncertainty on the question of causation or if other factors such as natural
aging could also contribute to disease causation, Congress and the VA are faced with the
1 U.S. Congress, House Committee on Veterans’ Affairs, The Provision of Federal Benefits for Veterans, An Historical
Analysis of Major Veterans Legislation, 1862-1954, committee print, 84th Cong., 1st sess., December 28, 1955, H.Prt.
No. 171, p. 2.
2 Department of Veterans Affairs, Veterans Benefits Administration: An Organizational History: 1776-1994,
Washington, DC, November 1995, p. 6. Although the Continental Congress passed resolutions promising benefits, it
lacked the authority and resources to implement these benefit laws, and left this task to individual states.
3 Currently, there is no statutory definition for the Global War on Terrorism (GWOT). Since the September 11, 2001,
terrorist attacks, the Department of Defense (DOD) has been engaged in domestic and overseas military operations.
These operations include Operation Noble Eagle aimed at defending the United States homeland against terrorist
attacks; Operation Enduring Freedom (OEF) that takes place principally in and around Afghanistan, but also covers
additional operations in the Horn of Africa, the Philippines, and elsewhere; and Operation Iraqi Freedom (OIF) that
focused principally on Iraq. All these operations have been collectively known as “ GWOT.” (U.S. Government
Accountability Office, Global War On Terrorism, GAO-09-302, March 17, 2009, p. 1). It should be noted that on
September 1, 2010, OIF was named Operation New Dawn coinciding with the change of mission for U.S. forces in
Iraq.
4 Veterans Benefits Disability Commission, Honoring the Call to Duty: Veterans’ Disability Benefits in the 21st
Century, Washington, DC, October 3, 2007, p. 444.
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challenge of instituting a transparent and equitable process to establish presumptions to
compensate veterans for service-connected conditions.
In the early 1990’s at the request of the then Chairman of the Senate Committee on Veterans’
Affairs, the VA prepared an analysis tracing the historical development of presumptions of service
connection.5 More recently, at the request of the Veterans’ Disability Benefits Commission,6 the
Institute of Medicine (IOM) of the National Academy of Sciences (NAS) did a comprehensive
study evaluating the presumptive disability decision-making process, which was released in
2008.7 Much of the interest with presumptions has focused on Vietnam veterans’ exposure to
Agent Orange and its contaminant dioxin.8 The Veterans’ Disability Benefits Commission, in its
task assignment to IOM, raised some potential issues with the current process of making
presumptions:
Certain studies (not even necessarily involving veterans), for example, showing that those
exposed to [Agent Orange] dioxin have slightly higher rates of diabetes or prostate cancer,
have resulted in an inexorable push to compensate all veterans with diabetes/prostate cancer
even if it is likely that [Agent Orange] dioxin exposure is a determinative factor in only a
small percentage of cases. Since it is impossible to know what role dioxin played in any
particular case, all Vietnam veterans with diabetes and prostate cancer have been and are
being granted presumptive service connection. Is this presumption fully supported by
medical evidence? What amount of increase in occurrence rate is enough to warrant
compensation? What approaches could be considered to alleviate this costly result?9
Organization of this Report
The purpose of this report is to examine the very complex and sometimes controversial policy
issue of establishing presumptive service connection. The material in it is based in large part on
VA’s “Analysis of Presumptions of Service Connection,” and IOM’s “Improving the Presumptive
Disability Decision-Making Process for Veterans” reports.
In order to provide some context to the discussion of presumptions, the first part of this report
briefly discusses disability compensation and the establishment of service connection for veterans
claiming disability compensation. The second part provides an overview of the legislative history
5 Department of Veterans Affairs (VA), “Analysis of Presumptions of Service Connection,” a report to the Senate
Committee on Veterans’ Affairs, December 23, 1993.
6 The Veterans’ Disability Benefits Commission was established by the National Defense Authorization Act of 2004
(P.L. 108-136), and was charged with providing a “comprehensive evaluation and assessment of the benefits provided
under the laws of the United States to compensate veterans and their survivors for disability or death attributable to
military service.”
7 National Academy of Sciences, Institute of Medicine, Improving the Presumptive Disability Decision-Making
Process for Veterans, Washington, DC, 2008, http://www.nap.edu/catalog/11908.html.
8 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 (National
Academy of Sciences, Institute of Medicine, Veterans and Agent Orange: Health Effects of Herbicides Used in
Vietnam, Washington , DC, 1994, p. 27).
9 National Academy of Sciences, Institute of Medicine, Improving the Presumptive Disability Decision-Making
Process for Veterans, Washington, DC, 2008, p. 342.
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of establishing presumptive service connection. Since most of the controversy about establishing
presumptions of service connection is related to exposure to Agent Orange, the third part of this
report examines the establishment of presumptions for conditions related to Agent Orange. This
part also provides a historical overview leading up to the passage of the Agent Orange Act of
1991 (P.L. 102-4). The fourth part of the report discusses the passage of the Agent Orange Act,
which set forth the current process for establishing presumptions. Lastly, it briefly discusses some
options that may assist policy makers in their deliberations to make the presumptive decision-
making process more transparent and equitable.
Disability Compensation for Veterans
The purpose of disability compensation is to assist currently disabled veterans whose injuries are
connected to military service10 Although a veteran may have been ill or sustained an injury while
in service, the mere fact that this occurred is not compensable.11 It should also be noted that not
all persons who served in the military are considered veterans for purposes of veterans benefits.
Currently, there are five ways to establish that a disability is service-connected:12
1. 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;13
2. 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;14
3. Through proximity—that is, a disability, which is proximately due to, or the
result of a service-connected disease or injury which is itself considered to be
service-connected.15 An example would be a veteran developing cardiovascular
disease due to a service-connected amputation of a lower limb.
4. Through a finding that the disability was caused by medical care or vocational
rehabilitation provided by the Department of Veterans Affairs (VA)—disabilities
caused by VA provided medical care or vocational rehabilitation are treated as if
they are service-connected.16
5. Through the application of statutory presumptions—that is, certain diseases as
established by law or regulation are considered to have been incurred in or
10 38 U.S.C. §§ 1110, 1131. These provisions deal with the basic entitlement for disability compensation.
11 For more information see CRS Report RL33323, Veterans Affairs: Benefits for Service-Connected Disabilities, by
Douglas Reid Weimer.
12 The term “service-connected” means, with respect to disability or death, that such disability was incurred or
aggravated, or that the death resulted from a disability incurred or aggravated, in line of duty in the active military,
naval, or air service (38 U.S.C. § 101).
13 38 C.F.R. § 3.303.
14 38 C.F.R. § 3.306.
15 38 C.F.R. § 3.310.
16 38 C.F.R. § 1151.
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aggravated by service in the Armed Forces even though there is no evidence of
such disease during the period of service.17
VA has the authority to provide disability compensation to veterans by bypassing the first four
criteria.18 The next section discusses what a presumption is, and provides a brief legislative
history of establishing presumptive service connection.
Presumptive Service Connection
What is a Presumption?
In the context of VA claims adjudication, a presumption relieves 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. When a disease is designated as presumptively service-connected, the individual
veteran does not need to prove that the disease was incurred during service. In other words, a
presumption shifts the burden of proof concerning whether a disease or disability was caused or
aggravated due to service from the veteran to the VA. The VA would have to demonstrate that
some other intervening event caused the disability in order to rebut the presumption.
Often presumptions are applied to chronic diseases or illnesses that manifest after a period of time
(sometimes many years) following service, and that may also occur in individuals who have
never served. According to the VA’s Analysis of Presumptions of Service Connection:
Generally, a legal presumption is a procedural device that shifts the burden of proof by
attaching certain consequences to the establishment of certain basic evidentiary facts. When
the party invoking a presumption establishes the basic fact(s) giving rise to the presumption,
the burden of proof shifts to the other party to prove nonexistence of the presumed fact. A
presumption, as used in the law of evidence, is a direction that if fact A (e.g., manifestation
within the specified period of a disease for which a presumption of service connection is
available) is established, then fact B (service connection) may be taken as established, even
where there is no specific evidence proving fact B (i.e., no medical evidence of a connection
between the veteran’s disease and the veteran’s military service).19
Legislative History of Presumptions
The legislative history of veterans’ disease presumptions dates back to 1921 when Congress, to
ease the decision-making process in VA disability compensation adjudications, used its authority
to establish service connection on a presumptive basis. Below is a synopsis of major legislation.
17 38 C.F.R. § 3.307.
18 38 U.S.C. § 501(a)(1).
19 Department of Veterans Affairs (VA), “Analysis of Presumptions of Service Connection,” a report to the Senate
Committee on Veterans’ Affairs, December 23, 1993, p. i.
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1920s-1940s
The first legislation that specifically established a presumption of service connection was the
amendment of August 9, 1921, (P.L. 67-47) to the War Risk Insurance Act (P.L. 63-193). This
amendment, among other things, established presumptions of service connection for active
pulmonary tuberculosis and neuropsychiatric disease (later known as psychosis) occurring within
two years of separation from active duty military service. Prior to the passage of P.L. 67-47,
disability compensation for World War I veterans was payable only for a disability directly related
to military service. Broadly, the intent of this liberalization legislation was that “as the period
beginning with the end of the war lengthened it became increasingly difficult to establish service
connection for some ailments, particularly tuberculosis and neuropsychiatric disease.”20 The
amendments to the War Risk Insurance Act also gave the then Veterans Bureau authority to
establish rules and regulations to carry out provisions in the act. This allowed the agency to
promulgate regulations establishing presumption of service connection for certain diseases. As
stated in VA’s Analysis of Presumptions of Service Connection:
Regulation No. 11 provided that chronic constitutional diseases, other than active pulmonary
tuberculosis or neuropsychiatric disease, becoming manifest within one year following the
date of separation from active service would be considered as incurred in service or
aggravated by service unless there were affirmative evidence to the contrary or evidence
establishing that some intercurrent disease or injury which is a recognized cause of the
disorder was suffered between the date of separation from service and the onset of the
chronic disease. 21
The next major piece of legislation that established presumptions of service connection was the
World War Veterans Act of 1924 (P.L. 68-242) enacted on June 7, 1924. This act made important
changes to existing laws on presumptions related to tuberculosis and mental illness. Among other
things, this act added the following three diseases to the list of presumptive diseases: dysentery
(amebic) (tropical disease added as chronic disease); paralysis agitans (now known as Parkinson’s
disease); and encephalitis lethargica. Furthermore, this act removed requirements that a veteran
must show diagnosis by a medical examination conducted by a medical officer of the then
Veterans Bureau or duly qualified physician within the presumptive period. “This provision alone
brought within the purview of the legislation thousands of veterans who [until then] had been
unable to connect their disabilities with the service so as to be eligible for compensation and
[medical care].” 22
Between the passage of the World War Veterans Act of 1924 and the act to establish a
presumption of service connection for chronic and tropical diseases (P.L. 80-748), several
additions were made to the list of presumptive diseases through regulation and executive order.
With the enactment of P.L. 80-748 on June 24, 1948, the chronic disease and tropical disease
categories were significantly expanded through the codification of presumptive diseases that were
20 U.S. Congress, House Committee on Veterans’ Affairs, The Provision of Federal Benefits for Veterans, An
Historical Analysis of Major Veterans Legislation, 1862-1954, committee print, 84th Cong., 1st sess., H. Prt. No 171,
December 28, 1955 (Washington: GPO, 1955), p. 21.
21 Department of Veterans Affairs (VA), “Analysis of Presumptions of Service Connection,” a report to the Senate
Committee on Veterans’ Affairs, December 23, 1993, p. 10.
22 U.S. Congress, House Committee on Veterans’ Affairs, The Provision of Federal Benefits for Veterans, An
Historical Analysis of Major Veterans Legislation, 1862-1954, committee print, 84th Cong., 1st sess., House Committee
Print No 171, December 28, 1955 (Washington: GPO, 1955), p. 23.
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previously established by regulation and executive order. Moreover, P.L. 80-748 authorized the
VA to add additional chronic diseases to the list. In leading up to the passage of P.L. 80-748, the
Administrator of VA asserted that the VA rather than Congress was better suited to decide which
disease or disease conditions should be made presumptive:
It is believed that extreme care should be exercised in augmenting the list of diseases to be
afforded the presumption. It is the view of the Veterans’ Administration that this can best be
accomplished by continuing the existing Veterans Regulation No. 1(a), part I, paragraph I(c),
and administrative authority to make the medical and adjudicatory determinations.
Determination governing the selection of diseases to be included under the regulation is
essentially one of an involved medical and adjudicatory nature. If a list of diseases is
provided by statute it is suggested that the consideration of additions to the present list or
subsequent additions to any statutory list would require detailed technical considerations by
the Congress which in the opinion of the Veterans’ Administration can best be handled
administratively. Considering all the facts and circumstances, it is believed that your
committee will desire to consider the inadvisability of introducing statutory presumptions of
service connection for specific diseases.23
1950s-1980s
With the passage of the Veterans Benefits Act of 1957 (P.L. 85-56), Congress codified all laws
affecting veterans benefits including the existing list of presumptions and expanded this list by
incorporating various presumptions of chronic diseases and disease categories that had been
established by regulation and were in effect at that time. At the time P.L. 85-56 was enacted on
June 17, 1957, there were 40 chronic diseases or disease categories and 17 tropical diseases that
were presumptively service-connected. The 1960s did not see any significant legislative or
regulatory changes affecting presumptions of service connection.
The next major legislative change occurred with the enactment of P.L. 91-376 in August 1970.
This law established a presumption of service connection for seven categories of diseases and
conditions for any veteran held as a prisoner of war (POW) in World War II, the Korean conflict,
or the Vietnam War, and who suffered from dietary deficiencies, forced labor, or inhumane
treatment in violation of the terms of the Geneva Conventions of July 27, 1929, and August 12,
1949.
It should be noted that up until the late 1970’s all the statutory presumptions specified a time
period in which a disease or illness needed to have manifested itself. Typically this period was up
to one year after separation from active service.
In August 1981, Congress passed the Former Prisoner of War Benefits Act of 1981 (P.L. 97-37).
This act, among other things, modified the list of statutory presumptions associated with POW
status and also changed the presumptive period for eligibility. The Veterans’ Compensation and
Program Improvements Amendments of 1984 (P.L. 98-223); the Veterans’ Benefits Improvements
and Health Care Authorization Act of 1986 (P.L. 99-576); and the Veterans’ Benefits and Services
Act of 1988 (P.L. 100-322) expanded the list of diseases in former POWs for which a
presumption of service connection was made. Prior to the passage of the Veterans’ Health Care,
23 U.S. Congress, Senate Committee on Finance, Veterans Chronic and Tropical Diseases–Presumption of Service
Connection, report to accompany H.R. 3889, 80th Cong., June 7, 1948.
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Training and Small Business Loan Act of 1981 (P.L. 97-72), veterans who complained of Agent
Orange-related illnesses were at the lowest priority for treatment at VA medical facilities because
these conditions were not considered service-connected. 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 unless there was evidence to the contrary.
After taking into consideration the “apprehension and concern among some Vietnam veterans and
their families…to the alleged ill-health effects among some Vietnam veterans…to exposure to the
dioxin in Agent Orange,”24 Congress passed the Veterans’ Dioxin and Radiation Exposure
Compensation Standards Act of 1984 (P.L. 98-542). The act required the VA to develop
regulations for disability compensation for Vietnam veterans 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 the link between the exposure and the
disease onset. P.L. 98-542 also authorized disability compensation payments to Vietnam veterans
for the skin condition chloracne, which was linked to Agent Orange exposure in numerous
epidemiologic studies.25 This law also established a program to provide disability compensation
to radiation-exposed veterans who participated in the U.S. atmospheric atomic tests or in the U.S.
occupation of Hiroshima and Nagasaki, Japan. Similar to veterans exposed to Agent Orange,
these so-called atomic veterans also had to provide evidence of exposure to receive
compensation.
In response to atomic veterans’ complaints about the difficulty of getting compensation under P.L.
98-542, Congress in 1988 enacted the Radiation-Exposed Veterans’ Compensation Act (P.L. 100-
321) which established a presumption of a service connection for 13 specified types of cancer.
That list was subsequently expanded, first by legislation, later through the VA administrative
action, to 21 cancers.26
1990s-2000
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 (discussed in greater detail below).
Under the Agent Orange Act, veterans seeking disability compensation for diseases they thought
to be associated with herbicides were no longer required to provide proof of 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. According to an article published in 2005 in the
Journal of Law and Policy: “The [IOM] process has become an essential step in ensuring that
new service connection presumptions command scientific credibility.”27
The Veterans’ Radiation Exposure Amendments of 1992 (P.L. 102-578) amended P.L. 100-321 by
adding two more cancers to the presumptive list. This expansion of the list of cancers was based
24 U.S. Congress, House Committee on Veterans’ Affairs, Veterans’ Dioxin and Radiation Exposure Compensation
Standards Act. Report to Accompany H.R. 1961, 98th Congress, 2nd sess., H.Rept. 98-592.
25 National Academy of Sciences, Institute of Medicine, Veterans and Agent Orange: Health Effects of Herbicides
Used in Vietnam, Washington , DC, 1994, p. 678.
26 For further information, see CRS Report RL33927, Selected Federal Compensation Programs for Physical Injury or
Death, coordinated by Sarah A. Lister and C. Stephen Redhead.
27 Mark Brown, “The Role of Science in Department of Veterans Affairs Disability Compensation Policies for
Environmental and Occupational Illnesses and Injuries,” Journal of Law and Policy, vol-13, (2005).
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on the “Biological Effects of Ionizing Radiation V” (BEIR V) report by the National Academy of
Sciences.28 The law also repealed the disability compensation requirement that diseases suffered
by radiation-exposed veterans must be manifested within 40 years of exposure.
During the mid-1990’s, Congress examined disability compensation issues pertaining to Persian
Gulf War29 veterans. In November 1994, Congress enacted the Persian Gulf War Veterans’
Benefits Act (P.L. 103-446), allowing the VA to pay compensation benefits to veterans for Gulf
War–related disabilities caused by undiagnosed illnesses. This act also codified the VA’s
regulatory presumptions based on exposure to herbicides for these types of cancer: Hodgkin’s
disease, multiple myeloma, and respiratory cancers; and porphyria cutanea tarda, a metabolic
disease (must occur within one year of exposure).
In 1998, Congress enacted the Persian Gulf War Veterans Act of 1998 (P.L. 105-277), and the
Veterans Programs Enhancement Act of 1998 (P.L. 105-368). Similar to the Agent Orange
presumptive program, these laws mandated regular and thorough reviews of the scientific and
medical literature relevant to the health of Gulf War veterans by the IOM.
The Veterans Education and Benefits Expansion Act of 2001 (P.L. 107-103) expanded the
definition of “qualifying chronic disability” to include a “medically unexplained chronic
multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel
syndrome) that is defined by a cluster of signs or symptoms.”30 Furthermore, the Veterans
Benefits Act of 2003 (P.L. 108-183) provided a presumption of service connection for cold
weather injuries, traumatic arthritis, and certain psychiatric disabilities in former POWs, without
regard to length of interment. The Veterans’ Housing Opportunity and Benefits Improvement Act
of 2006 (P.L. 109-233) added atherosclerotic heart disease or hypertensive vascular disease
(including hypertensive heart disease) and their complications (including myocardial infarction,
congestive heart failure and arrhythmia) and stroke and its complications to the list of diseases
presumed to be service-connected in former POWs.
With passage of the National Defense Authorization Act, FY2008 (P.L. 110-181), Congress
established a presumption of service connection for purposes of VA medical care for any veteran
of the Persian Gulf War who develops an active mental illness (other than psychosis) if such
veteran develops such disability: (1) within two years after discharge or release from the active
military, naval, or air service; and (2) before the end of the two-year period beginning on the last
day of the Persian Gulf War.
On October 10, 2008, the Veterans’ Benefits Improvement Act of 2008 (P.L. 110-389) was
enacted. Section 106 of this law established a presumption of service connection for osteoporosis
for those veterans that the VA determines to have post-traumatic stress disorder (PTSD). It should
be noted that presumptive illnesses for POWs fall into two lists.31 The first list requires no
minimum internment period and includes diseases associated with mental trauma and acute
28 Committee on the Biological Effects of Ionizing Radiation (BEIR), National Research Council, is part of the
National Academy of Sciences.
29 The term “Persian Gulf War” means the period beginning on August 2, 1990, and ending on the date thereafter
prescribed by Presidential proclamation or by law (38 U.S.C. §101).
30 Subsection 202 (a) of the Veterans Education and Benefits Expansion Act of 2001 (P.L. 107-103), December 27,
2001.
31 38 U.S.C. §1112(b); 38 C.F.R. §3.309(c).
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physical trauma. Therefore, such diseases are presumptively service-connected for POWs even
with a single day of captivity. The second list requires a minimum 30-day internment period, and
includes diseases associated with nutritional deficiencies such as osteoporosis. Section 106 of P.L.
110-389 provides a presumptive service connection for osteoporosis for those veterans with
PTSD without the 30-day minimum internment requirement.32
Establishment of Agent Orange Presumptions
Thirty-five years after the American military presence in Vietnam33 ended, the controversy
surrounding Agent Orange and its possible association with various illnesses of Vietnam veterans
continues unabated.34 In general, no other presumption of service connection has had so many
congressional hearings, or has been so extensively studied and debated as has establishment of
presumption of service connection for diseases associated with exposure to Agent Orange.
Therefore, this section provides a brief legislative history leading up to the passage of the Agent
Orange Act in 1991 (P.L. 102-4). It is followed by a discussion of the Agent Orange Act of 1991.
Historical Context: 1977-1991
The dense jungles of South Vietnam allowed Communist troops to engage in guerrilla warfare
during the Vietnam war.35 On December 4, 1961, President Kennedy authorized the Secretary of
Defense to test the military effectiveness of defoliation.36 This defoliation program in Vietnam
was called “Operation Ranch Hand.” The first major large-scale spraying operation, to clear
enemy infiltration routes, began over the mangrove forests in the Ca Mau peninsula in the
southernmost region of the Mekong Delta in September 1962.37 From 1962 to 1971, the U.S. Air
Force sprayed nearly 19 million gallons of herbicides in Vietnam, of which at least 11 million
gallons were Agent Orange—making it the most widely used herbicide in the war.38
In 1977, Congress first became aware of a possible link between disabilities in Vietnam veterans
and exposure to Agent Orange when a VA employee charged that Agent Orange had caused a
32 Department of Veterans Affairs, “Presumption of Service Connection for Osteoporosis for Former Prisoners of
War,” 74 Federal Register 44288, August 28, 2009.
33 The term “Vietnam era” means the following: (1) The period beginning on February 28, 1961, and ending on May 7,
1975, in the case of a veteran who served in the Republic of Vietnam during that period; (2) the period beginning on
August 5, 1964, and ending on May 7, 1975, in all other cases ( 38 U.S.C. § 101).
34 Kerry Young, “Vietnam’s Toxic Legacy Costs,” CQ Weekly, May 24, 2010, p. 1251; Kerry Young, “Presumptive
Spending in VA Gets New Scrutiny,” CQ Weekly, June 28, 2010, p. 1547; and David Rogers, “The Bill for Agent
Orange Comes Due,” Politico, August 30, 2010 http://www.politico.com/news/stories/0810/41571.html.
35 Wilbur J. Scott, “Competing Paradigms in the Assessment of Latent Disorders: The Case of Agent Orange,” Social
Problems, vol. 35, no. 2 (April 1988), p. 146.
36 National Academy of Sciences, Institute of Medicine, Characterizing Exposure of Veterans to Agent Orange and
Other Herbicides Used in Vietnam, Scientific Considerations Regarding a Request for Proposals for Research,
Washington, DC, 2007, p. 16.
37 Ibid.
38 The different types of herbicide used by U.S. forces in Vietnam were identified by a code name referring to the color
of the band around the 55-gallon drum that contained the chemical. These included Agents Orange, White, Blue,
Purple, Pink, and Green. From 1962 to 1965, small quantities of Agents Purple, Pink, and Green were used in the
defoliation program (National Academy of Sciences, Institute of Medicine, Veterans and Agent Orange: Health Effects
of Herbicides Used in Vietnam, Washington, DC, 1994, p. 27).
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wide variety of disabling conditions and diseases.39 Since that time Vietnam veterans have
attributed various illnesses to Agent Orange exposure, including skin conditions, cancers, chronic
diseases, birth defects in children, and numerous other ailments. Since the late 1970s, veterans
have urged the VA to provide medical treatment for these disorders and many have filed for
disability compensation. Initially, the Department of Defense (DOD) maintained that only a
limited number of U.S. military personnel could be positively identified as having been exposed
to Agent Orange in South Vietnam (i.e., the crews of aircraft that were used to spray herbicides).
However, following the publication of a 1979 General Accounting Office (GAO) report
documenting ground troop exposure, DOD acknowledged that ground troops were also exposed
to Agent Orange.40 Likewise, the VA consistently took the position that since the long-term
exposure to Agent Orange was unclear, and because of scientific uncertainty of the evidence
linking Agent Orange to specific illnesses, it could not compensate veterans who alleged that
exposure to Agent Orange had caused their diseases. In testifying before the House Committee on
Veterans’ Affairs, the then Administrator of Veterans Affairs stated:
Unless or until some such latent effects of Agent Orange or its derivative components are
scientifically documented there are intrinsic limitations to VA’s authority to allow these
[Agent Orange] claims under current law. Though I cannot emphasize enough our policy to
resolve reasonable doubt as to service incurrence of disabilities in favor of claimants, there is
currently no medical basis upon which adverse health effects of late-post-exposure onset can
be reasonably tied to Agent Orange.41
In general, in the early days of the Agent Orange controversy issues fell into three categories:
1. compensation for disabilities possibly related to exposure;
2. answers to questions about the health effects of exposure to Agent Orange; and
3. access to health care for diseases that might be related to the exposure.42
From 1979 onward, Congress addressed these issues through various legislative measures. In
1979, in response to concerns expressed regarding possible delayed adverse health effects as a
result of exposure to Agent Orange, Congress enacted the Veterans Health Programs Extension
and Improvement Act of 1979 (P.L. 96-151). It mandated the VA to conduct an epidemiological
study of the possible health effects in veterans who served in Vietnam of exposure to dioxin as
found in herbicides including Agent Orange. The scope of that study was expanded by section
401 of the Veterans’ Health Care, Training and Small Business Loan Act of 1981 (P.L. 97-72),
which authorized the inclusion of an evaluation of the impact on the health of Vietnam veterans
of exposure to other environmental factors which may have occurred in Vietnam. In 1983, the VA
39 U.S. Congress, House Committee on Veterans’ Affairs, Agent Orange in Vietnam: A Report on the Mission to
Vietnam, committee print, prepared by the Honorable Don Edwards, member, House Veterans’ Affairs Committee, to
the Committee on Veterans Affairs, on his visit to Vietnam, 98th Cong., 2nd sess., January 31, 1984 (Washington: GPO,
1984), p. 1. Also see, National Academy of Sciences, Institute of Medicine, Veterans and Agent Orange: Health Effects
of Herbicides Used in Vietnam, Washington, DC, 1994, p. 33.
40 U.S. General Accounting Office, U.S. Ground Troops in South Vietnam Were in Areas Sprayed with Herbicide
Orange, FBCD 80-23, 1979, http://archive.gao.gov/f0302/110930.pdf.
41 Statement of Max Cleland, Administrator of Veterans’ Affairs in U.S. Congress, House Committee on Veterans’
Affairs, Subcommittee on Medical Facilities and Benefits, Oversight Hearing to Receive Testimony on Agent Orange,
96th Cong., 2nd sess., February 25, 1980 (Washington: GPO, 1980), p. 11.
42 U.S. Congress, Senate Committee on Veterans’ Affairs, Veterans’ Agent Orange Exposure and Vietnam Service
Benefits Act of 1989, Report to Accompany S. 1153, 101st Cong., 1st sess., July 24, 1989 (Washington: GPO, 1989), p.
25.
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transferred to Centers for Disease Control and Prevention (CDC) the responsibility for this entire
study.43 Moreover, P.L. 97-72 authorized the Department to provide certain health-care services to
any veteran of the Vietnam era who while serving in Vietnam may have been exposed to dioxin or
to a toxic substance in a herbicide or defoliant used for military purposes.44 P.L. 97-72 allowed
veterans to receive health care even if there was insufficient medical evidence to conclude that
their medical condition was associated with exposure to Agent Orange. However, the VA did not
acknowledge a link between Agent Orange and those diseases, with the exception of chloracne.45
According to the VA’s Analysis of Presumptions of Service Connection:
Congress’ rationale in enacting this legislation, as it related to [Agent Orange] dioxin, was
that: [U]ntil the scientific community [is] able to make a determination as to the possible
cause and effect relationship of the toxic herbicides utilized as defoliants in the Republic of
Vietnam during the Vietnam conflict, the Veterans’ Administration should do everything
possible to provide the [health] care to such veterans. When a doubt exists, the doubt should
be resolved in favor of the veteran.46
In addition to the scientific study mandated in P.L. 96-151 and expanded in P.L. 97-72, numerous
scientific studies were conducted related to Agent Orange, and the Vietnam experience as a
whole, involving the Veterans’ Administration, the Environmental Protection Agency (EPA), and
the Departments of Health and Human Services, Defense, and Agriculture.
However, the issue of whether to provide disability compensation to veterans exposed to Agent
Orange was not taken up by Congress until 1983. In the 98th Congress several measures were
introduced47 that would have created presumptions of service connection for particular diseases
and/or directed VA to conduct rulemaking on the subject of presumptions.48 Several hearings were
held in which witnesses testified and provided their views on the proposed measures. One bill, the
Vietnam Veterans Agent Orange Relief Act (H.R. 1961) would have allowed for the presumption
of service connection for three diseases: chloracne (a severe form of acne), soft tissue sarcomas
(cancers), and porphyria cutanea tarda (disorder characterized by thinning and blistering of the
skin in sun-exposed areas). The measure would have also permitted the Department to add other
medical conditions through regulations upon determination that Agent Orange may have caused
them. H.R. 1961 contained a sunset clause that would have terminated the presumption upon
completion of the study mandated by the Veterans Health Programs Extension and Improvement
43 U.S. Congress, Senate Committee on Veterans’ Affairs, Veterans Agent Orange Exposure and Vietnam Service
Benefits Act of 1989, report to accompany S. 1153, 101st Cong., 1st sess., July 24, 1989, S.Rept. 101-82 (Washington:
GPO, 1989), p. 27.
44 For more information on health care provided to Vietnam era veterans, see CRS Report RL34370, Veterans Affairs:
Health Care and Benefits for Veterans Exposed to Agent Orange, by Sidath Viranga Panangala and Douglas Reid
Weimer.
45 Wilbur J. Scott, “Competing Paradigms in the Assessment of Latent Disorders: The Case of Agent Orange,” Social
Problems, vol. 35, no. 2 (April 1988), p. 155.
46 Department of Veterans Affairs (VA), “Analysis of Presumptions of Service Connection” a report to the Senate
Committee on Veterans’ Affairs, December 23, 1993, p. 65.
47 S. 374, 98th Cong., 1st Sess. (1983); S. 786, 98th Cong.,1st Sess. (1983); S. 991, 98th Cong., 1st Sess. (1983); H.R.
1961, 98th Cong., 1st. Sess. (1983); and S. 1651, 98th Cong., 1st Sess. (1983).
48 Department of Veterans Affairs (VA), “Analysis of Presumptions of Service Connection” a report to the Senate
Committee on Veterans’ Affairs, December 23, 1993, p.66.
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Act of 1979 (P.L. 96-151). Dozens of witnesses testified with widely divergent views on the bill.49
The then Administrator of the VA opposed the measure stating that
The compensation program must be attuned to justifiable conclusions about the connection
between Agent Orange exposure and disorders possibly arising from that exposure. At the
same time we must do our best to avoid taking steps that have the potential for undermining
the program’s credibility and legitimacy because of inconclusive scientific evidence…. In
view of the current state of scientific findings, enactment [of H.R. 1961] would compromise
the integrity of the compensation program and engender unfounded fears among Vietnam
veterans that lethal illnesses may yet befall them as a result of having answered the duty’s
call. 50
On January 30,1984, the House passed H.R. 1961, as amended, to provide for VA disability
compensation, a presumption of service connection for the following three diseases: soft tissue
sarcoma, porphyria cutanea tarda, and chloracne. As under the original bi1l, benefits would
terminate one year after the CDC epidemiological study, mandated by the Veterans Health
Programs Extension and Improvement Act of 1979 (P.L. 96-151), was submitted to Congress. The
Senate passed a different version of H.R. 1961 on May 22, 1984. The Senate-passed version did
not provide compensation to veterans exposed to Agent Orange. Rather, the Senate bill addressed
the process by which the VA handles Agent Orange by establishing rulemaking guidelines to be
used by the VA in adjudicating these claims. The Senate bill also provided for judicial review for
both the rulemaking process and individual veterans’ compensation claims. The final version of
H.R. 1961 was enacted into law on October 24, 1984, as the Veterans’ Dioxin and Radiation
Exposure Compensation Standards Act, (P.L. 98-542).
As stated previously, P.L. 98-542 required the VA to prescribe regulations regarding the
determination of service connection of disabilities of veterans who were exposed to herbicides
containing dioxin while serving in Vietnam during the Vietnam era. Section 6 of the statute
established the Veterans’ Advisory Committee on Environmental Hazards and charged the
Advisory Committee to provide the VA with evaluations of pertinent scientific studies relating to
possible adverse health effects of exposure to dioxin and with recommendations for legislative or
administrative action. Section 5(b) of the statute directed VA to issue regulations establishing
guidelines ‘‘governing the evaluation of the findings of scientific studies relating to the possible
increased risk of adverse health effects of exposure to herbicides containing dioxin or of exposure
to ionizing radiation.’’ Section 5(b) further provided that the referenced evaluations of scientific
studies would be made by the Administrator (now Secretary) of Veterans Affairs after receiving
the advice of the Advisory Committee. Finally, section 5(b) provided that, under the prescribed
regulations, VA would make determinations as to whether, and in what circumstances, service
connection would be granted for particular diseases based on a finding that a disease is associated
with exposure to herbicides containing dioxin.
As this section has illustrated, the attitudes and responses of both Congress and the VA evolved
over time as more information regarding Agent Orange, exposure to Agent Orange, and the long
range health effects became available. Congress initiated hearings to explore the impact of Agent
Orange exposure on the Vietnam veterans’ population. In the early days of congressional inquiry,
the VA was reluctant to recognize a nexus between Agent Orange exposure and certain illnesses
49 U.S. Congress, House Committee on Veterans’ Affairs, Agent Orange and Atomic Veterans Relief Act, report to
accompany H.R. 1961, 98th Cong., 2nd sess., January 25, 1984, p. 4.
50 Ibid, p.16 and p. 20.
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in the veteran population. However, this position was modified as more information became
available, and as veterans sought compensation for certain illnesses. In attempting to respond to
these concerns, Congress directed the VA to conduct a study of possible delayed adverse health
effects in 1979 (Veterans Health Programs Extension and Improvement Act of 1979, P.L. 96-151,
§307, 93 Stat. 1092, 1097).
In addition to authorizing the VA to conduct a study on the health effects of Agent Orange
exposure, Congress in P.L. 97-72 directed the VA to provide priority health care to Vietnam
veterans who were suffering from illnesses believed to be caused by exposure to Agent Orange in
Vietnam. Congress directed the VA to provide priority healthcare to Agent Orange-exposed
Vietnam veterans on an interim basis until the results of the study authorized by P.L. 96-151
became available. In 1984, five years after authorizing the Agent Orange study in P.L. 96-151,
Congress enacted legislation requiring the VA to establish guidelines for deciding disability
compensation claims brought by Vietnam veterans exposed to Agent Orange. The new law also
required the VA to create and consult with a scientific advisory committee on the adverse health
effects of dioxin exposure and, for the first time, mandated compensation payments for Vietnam
veterans suffering from two diseases, chloracne and porphyria cutanea tarda, for a two-year
period.51
Agent Orange Act of 1991 (P.L. 102-4)
Agent Orange legislation in the 99th Congress mainly dealt with studies affecting the health of
Vietnam veterans rather than compensation issues. The 100th Congress also continued to generally
address the same issues raised in previous Congresses, specifically the on-going issue of
determining if health problems among Vietnam veterans exposed to Agent Orange can be
attributed to their exposure and how to make that determination.
51 Veterans’ Dioxin and Radiation Exposure Compensation Standards Act, (P.L. 98-542) As an illustration of the
uncertainty surrounding the eventual codification of presumptive Agent Orange disorders, Representative Tom Ridge
expressed this concern:
One of the concerns I have, I guess, is that if we look [for scientific studies] to establish with an
absolute degree of medical or scientific certainty the nexus between exposure to Agent Orange and
the variety of maladies that may result from that exposure, we may indeed wait 40 or 50 years [to
establish presumptive Agent Orange disorders] in spite of the efforts of the VA, in spite of the
efforts of other countries, in spite of all the tests we run.
Scientific Research on the Health of Vietnam Veterans Hearing on H.R. 3486 Before the Subcomm. on Hospitals and
Health Care of the H. Comm. on Veterans’ Affairs, 100th Cong. 16 (1988) (statement of Representative Thomas J.
Ridge, Member, House Subcommittee on Hospitals and Health Care). Similarly, Senator John Kerry noted in written
testimony before the subcommittee:
I believe that it is nothing less than wrong on the facts to tell Vietnam veterans that we cannot
compensate for diseases which were caused by their exposure to Agent Orange in Vietnam. It is
offensive to veterans to tell them that there is not enough “scientific evidence” to justify
compensation … Our legislation [S. 1787] would establish a presumption of service connection for
two of these diseases, non-Hodgkins lymphoma and lung cancer. In addition [S. 1787] would ask
the National Academy of Sciences to review the evidence of the scientific studies and compile a list
of other diseases which are linked to suppression of the immune system, which may be linked to
dioxin or Agent Orange exposure. If appropriate, these diseases would be added and a presumption
of service connection [would be] created.
Ibid. at 67-71 (written testimony of Senator John Kerry before House Subcommittee on Hospitals and Health Care).
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Despite the passage of the Veterans’ Dioxin and Radiation Exposure Compensation Standards
Act, (P.L. 98-542), there were concerns among Vietnam veterans about the various scientific
studies that were being conducted on the human health effects associated with herbicide exposure
during Vietnam service. Furthermore, in 1989, in the case of Nehmer et al. v. United States
Veterans’ Administration et a1.52 “the court held that VA had erred in two key ways in carrying
out the requirement in P.L. 98-542. First, by utilizing too high a standard for determining if there
is a linkage between exposure to Agent Orange and a subsequent manifestation of a disease and,
second, by failing to give the benefit of the doubt to veterans in prescribing the standards in the
regulations for VA to use in deciding whether to provide service connection for any specific
disease.”53 In response to these concerns in 1991, after numerous hearings, Congress enacted the
Agent Orange Act of 1991 on February 6, 1991( P.L. 102-4). The law codified presumption of
service connection for chloracne, non-Hodgkin’s lymphoma, and soft tissue sarcoma (other than
osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma) associated with Agent
Orange. This law also transferred the responsibility of reviewing the scientific literature
concerning the association between herbicide exposure during Vietnam service and each health
outcome suspected to be associated with such exposure from the VA’s Advisory Committee on
Environmental Hazards to the National Academy of Sciences.
Moreover, P.L. 102-4 established an entirely new process for evaluating the health effects of
exposure to herbicides containing dioxin and for establishing presumptions of service connection
for diseases associated with such exposure. The Agent Orange Act requires the Secretary of the
VA to conduct new rulemaking proceedings to determine which diseases are sufficiently
associated with exposure to Agent Orange so that veterans with approved diseases receive a
presumption of service connection. The law states that
(1) Whenever the Secretary determines, on the basis of sound medical and scientific
evidence, that a positive association exists between (A) the exposure of humans to an
herbicide agent, and (B) the occurrence of a disease in humans, the Secretary shall prescribe
regulations providing that a presumption of service connection is warranted for that disease
for the purposes of this section.
(2) In making determinations for the purpose of this subsection, the Secretary shall take into
account (A) reports received by the Secretary from the National Academy of Sciences under
section 3 of the Agent Orange Act of 1991, and (B) all other sound medical and scientific
information and analyses available to the Secretary.
(3) An association between the occurrence of a disease in humans and exposure to an
herbicide agent shall be considered to be positive for the purposes of this section if the
credible evidence for the association is equal to or outweighs the credible evidence against
the association.54
The Agent Orange Act directed the Secretary to enter into an agreement with the National
Academy of Sciences to perform the services as required by the act, and under that agreement, the
Academy was to “review and summarize the scientific evidence, and assess the strength
concerning the association between exposure to [dioxin] ... and each disease suspected to be
52 Nehmer v. U.S. Veterans Admin., 712 F.Supp. at 1420, 1423 (N.D. Cal. 1989).
53 U.S. Congress, Senate Committee on Veterans Affairs, Veterans’ Agent Orange Exposure and Vietnam Service
Benefits Act of 1989, report to accompany S. 1153, 101st Cong., 1st sess., July 24, 1989 (Washington: GPO, 1989), p.
35.
54 38 U.S.C. § 1116 (b).
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associated with such exposure.” Moreover, the Academy was to submit its first report no later
than 18 months after the enactment of the Agent Orange Act, and, thereafter submit “periodic
written reports ... at least once every two years (as measured from the date of the first report).”
Furthermore, under the Agent Orange Act, when the Secretary received a report from the
Academy, he was required to determine within 60 days “whether a presumption of service
connection is warranted for each disease covered by the report,” and if he determined that a
“presumption is warranted,” he was required to issue proposed regulations within 60 days setting
forth his determination and to issue final regulations within 90 days after proposing them.55
Finally, the Agent Orange Act, as originally enacted, set forth a sunset date for the operation of
the provisions that required the Secretary to issue regulations designating service-connected
diseases in response to the scientists’ reports.56 The sunset date would be 10 years after the first
day of the fiscal year in which the Academy transmitted its first report to the Secretary, and as the
first report was transmitted on July 27, 1993, the original effective sunset date was September 30,
2002.
In 2001, 10 years after the passage of the Agent Orange Act, Congress enacted the Veterans
Education and Benefits Expansion Act of 2001 (P.L. 107-103). This act amended the sunset date
and extended the Secretary’s authority to issue regulations designating service connected ailments
for another 13 years.57 Since 1994, as required by law, IOM has issued eight reports concerning
associations between health outcomes and exposure to Agent Orange. In addition, IOM has issued
three special reports concerning Agent Orange and Type 2 diabetes, Agent Orange and acute
myelogenous leukemia in offspring of Vietnam veterans, and the length of presumptive period for
association between exposure to Agent Orange and respiratory cancer.
In sum, the Agent Orange Act codified presumptions of service connection for chloracne, non-
Hodgkin’s lymphoma, and soft tissue sarcoma associated with Agent Orange exposure in
Vietnam. With respect to the VA’s disability claims process, these presumptions helped to
streamline the claims process by allowing Vietnam veterans to establish the second element (in-
service occurrence or aggravation of disease) and third element (nexus between in-service
occurrence/aggravation of disease and current disease) of the prima facie case for disability
compensation, in spite of “[the absence] of evidence of such disease during the period of such
service.”58 Additionally, the Agent Orange Act established an entirely new process for evaluating
the health effects of exposure to dioxin and other chemical compounds in herbicides and for
establishing presumptions of service connection for diseases associated with such exposure.
Congress, however, expressly provided that such presumptions created by the VA Secretary
pursuant to his authority under the Agent Orange Act may be rebutted by the VA with affirmative
evidence establishing that (1) the veteran was not exposed to Agent Orange during service; (2) the
veteran’s current disability was triggered by an “intercurrent injury or disease” suffered after
separation from service; or (3) the veteran’s current disease was caused by his own “willful
55 38 U.S.C. § 1116(c)(1)(A), (c)(2).
56 38 U.S.C. § 316(e), 38 U.S.C.A. § 1116(e) (1992).
57 As a result, the provisions in 38 U.S.C. § 1116(b), (c) and (d) have remained in effect since 1991, and will continue
to be effective until September 30, 2015, or until such other time as Congress shall establish, should it enact another
extension.
58 38 U.S.C. § 1116(a)(1)(B). See Darby v. Brown, 10 Vet.App. 243, 246 (CAVC 1997) (where claimant satisfies
requirements of 38 U.S.C. § 1116, “the requirements for evidence of both service incurrence and causal nexus are
satisfied”).
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misconduct.”59 Appendix A provides a list of presumptive disease conditions that have been
established by the VA and Congress based on exposure to Agent Orange. The next section
provides an overview of the current process for establishing presumptions for Agent Orange
related conditions as well as for other emerging environmental exposures in veterans.
Current Process for Presumptive Disability
Decisions60
The current process for establishing presumptive disability decisions involves four major entities:
Congress, the VA, the Institute of Medicine (IOM), and other stakeholders, which include—
among others—veterans service organizations (VSOs) (See Figure 1). As discussed earlier, from
time-to-time, Congress has exercised its power to create presumptive disability decisions through
legislation but has also delegated authority to the Secretary of the VA to establish presumptions in
certain instances.61 Some presumptive decisions have been challenged in court, leading to a
revision of the statutes governing the administration of disability compensation by the VA. For
example, in the Veterans’ Dioxin and Radiation Exposure Compensation Standards Act of 1984
(“Dioxin Act”), Congress authorized the Secretary of the VA to determine which diseases
warranted a presumption of service connection relating to Agent Orange exposure during the
Vietnam war.62 Pursuant to the Dioxin Act, the Secretary promulgated a regulation, which
provided (1) a presumption of Agent Orange exposure for any veteran who served in Vietnam and
(2) a presumption that a single disorder—chloracne—would be considered service connected and
thus, eligible for disability compensation.63 Because the Secretary determined that there was no
“cause and effect” relationship between Agent Orange exposure and two other diseases, the
Secretary declined to provide any other disease (besides chloracne) with a presumption of service
connection.64
As stated previously, in 1989, a federal district court invalidated this regulation because
“…although Congress [pursuant to Dioxin Act] intended the VA to predicate service connection
upon a finding of a significant statistical association between dioxin exposure and various
diseases, the VA had erroneously required proof that a causal relationship existed.”65
59 38 U.S.C. § 1113(a). See Darby v. Brown, 10 Vet.App. at 246-247 (rebutting presumption of service connection
provided by 38 U.S.C. § 1116 and denying disability compensation claim pursuant to 38 U.S.C. § 1113(a)).
60 Major portions of this section were drawn from National Academy of Sciences, Institute of Medicine , Improving the
Presumptive Disability Decision-Making Process for Veterans, Washington, DC, 2008.
61 38 U.S.C. § 501(a).
62 P.L. 98-542, 98 Stat. 2725 (1984).
63 38 C.F.R. §§ 3.311a(b), 3.311a(c) (1988).
64 38 C.F.R. § 3.311(d) (1988).
65 Nehmer v. U.S. Dept. of Veterans Affairs, 494 F.3d 846, 850 (9th Cir. 2007) quoting Nehmer v. U.S. Veterans
Admin., 712 F.Supp. at 1420, 1423 (N.D. Cal. 1989).
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Figure 1. Roles of the Participants Involved in the Presumptive Disability Decision-
Making Process for Veterans
Source: From ‘FIGURE S-1’ in National Academy of Sciences, Institute of Medicine, Improving the Presumptive
Disability Decision-Making Process for Veterans, Washington, DC, 2008, p. 11.
Notes:
a. Stakeholders include (but are not limited to) veterans service organizations (VSOs), veterans, advisory
groups, federal agencies, and the general public; these stakeholders provide input into the presumptive
process by communicating with Congress, VA, and independent organizations (e.g., the National
Academies).
b. Congress has created many presumptions itself; in 1921, Congress also empowered the VA Secretary to
create regulatory presumptions; on several occasions in the past, Congress has directed VA to contract
with an independent organization (e.g., the National Academies) to conduct studies and then use the
organization’s report in its deliberations of granting or not granting regulatory presumptions.
c. VA can establish regulatory presumptions; VA sometimes contracts with the National Academies to
conduct studies and uses the organization’s report in its deliberations of granting or not granting regulatory
presumptions.
d. The National Academies (Institute of Medicine and National Research Council) submit reports to VA based
on requests and study charges from VA.
VA Presumptive Disability Decisions
A presumption established through legislation usually follows a process through which individual
constituents seeking redress from a denial of disability benefits from the VA bring their issues to
the attention of Congress. VSOs representing a contingent of veterans or, on rare occasions,
executive branch agencies have also lobbied Congress to consider certain presumptions. Through
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a 1921 amendment to the War Risk Insurance Act (P.L. 63-193), Congress also granted the
Secretary of the VA authority to establish regulatory presumptions (P.L. 67-47).
Role of the Institute of Medicine (IOM)
As previously noted, the Agent Orange Act of 1991 established a new process for evaluating the
health effects of exposure to herbicides containing dioxin and for establishing presumptions of
service connection for diseases associated with such exposure. P.L. 102-4 directed the Secretary
to enter into an agreement with the National Academy of Sciences to review and summarize
available scientific evidence regarding an association between diseases and exposure to
herbicides used in Vietnam. This agreement, in turn, led to a model by which additional studies
could be conducted, a model which is still used today. The Institute of Medicine, established in
the 1970s as the health arm of the National Academy of Sciences, provides VA with reports that
describe the strength of evidence with respect to linkage of agents and specific health concerns.
VA uses this evidence and other information in internal decision making to decide whether a
presumption will be made.66 Congress requires the VA to respond after receiving an IOM report
with a determination as to whether VA will make a service connection for particular health
outcomes on a presumptive basis.
The National Academies convenes panels of its own members and other experts to conduct
studies using a systematic process involving open public meetings, the submission of information
by outside parties, reviews of the literature, and investigations of committee members and staff.
Committee deliberations are closed to the public as well as to study sponsors. Report drafts are
subject to an external peer review process overseen by the National Academies.67
With respect to studies pertaining to possible presumptions, a new IOM committee is convened.
As of 2009, the IOM had completed eight full, biennial Veterans and Agent Orange Reviews and
three focused Agent Orange reviews.
Each review examines and characterizes the strength of evidence, such as epidemiologic and
toxicological studies, in terms of its association to health outcomes. The first IOM Veterans and
Agent Orange committee characterized the strength of evidence into the following four
categories:
1. sufficient evidence of an association;
2. limited/suggestive evidence of an association;
3. inadequate/insufficient evidence to determine whether an association exists; and
4. limited/suggestive evidence of no association.68
66 National Academy of Sciences, Institute of Medicine, Improving the Presumptive Disability Decision-Making
Process for Veterans, Washington, DC, 2008, p.2.
67 For additional information on the National Academies and the committee process see http://nationalacademies.org/.
68 IOM was additionally contracted to explore possible links between service in the Gulf War I and a host of medical
conditions experienced by veterans known collectively as “Gulf War Syndrome.” The IOM committees conducting the
Gulf War I studies used a similar categorization process that included (1) sufficient evidence of a causal relationship,
(2) sufficient evidence of an association, (3) limited/suggestive evidence of an association, (4) inadequate/insufficient
evidence to determine whether an association does or does not exist, and (5) limited/suggestive evidence of no
association. With minor changes, these categories are still in use today (National Academy of Sciences, Institute of
Medicine, Improving the Presumptive Disability Decision-Making Process for Veterans, Washington, DC, 2008, pp.
(continued...)
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VA Presumptive Disability Deliberation Process
The VA has followed a general internal review process for evaluating the study findings from
IOM and making recommendations to the Secretary of the VA on whether a specific condition(s)
should be granted presumptive status. This process includes an initial review by a working group,
a subsequent review by a high-level task force, and a final review by the VA Secretary.
Following the submission of the study findings from IOM, a working group is convened,
consisting of representatives from several different parts of the VA. Based on the IOM study
findings, review of other relevant academic literature, and possible input from various
stakeholders, the working group determines whether there is sufficient scientific evidence to
support giving any disease(s) special consideration with respect to disability presumptions.
Following deliberations, the working group generates a report, which makes recommendations to
an internal VA Task Force based on pre-established legal standards by which the VA Secretary’s
final decision is bound.
The VA internal review Task Force typically consists of high-level officials who report directly to
the Secretary. The Task Force reviews the findings of the Working Group and may provide a
separate, but similar, report to the VA Secretary based on the Working Group’s recommendations.
If the Task Force recommends that a new disability presumption be established, and the Secretary
concurs, the Veterans Benefits Administration (VBA) will submit a cost estimate and draft
regulations for the presumption(s) to the Office of Management and Budget (OMB) for review. If
approved by OMB, the proposed rule is then published in the Federal Register. After the allotted
period for public comment, the VBA will then prepare a final rule to be submitted to the Federal
Register. A more detailed discussion of VA’s review of IOM’s findings is provided in Appendix
B.
(...continued)
64-65).
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Representatives at Each Tier of VA’s Internal Review of IOM Reports
Tier 1: Working Group Representatives69
• Veterans Health Administration (VHA) Office of Public Health and Environmental Hazards (OPHEH)
• Veterans Benefits Administration (VBA)—Compensation and Pension Service (C&P Service)
• Office of the General Counsel (OGC)—Professional Staff Group II
• VHA personnel with specialized medical training or experience
• Outside technical experts such as National Institutes of Health (NIH), Centers for Disease Control and
Prevention (CDC), and Environmental Protection Agency (EPA), as needed
Tier 2: Task Force Representatives70
• Under Secretary for Health
• Under Secretary for Benefits
• General Counsel
• Assistant Secretary for Policy and Planning
• Other experts (CDC, EPA, as appropriate)
Tier 3: The VA Secretary
Source: Adapted from “Box 3-1” in National Academy of Sciences, Institute of Medicine, Improving the Presumptive
Disability Decision-Making Process for Veterans, Washington, DC, 2008, p.59.
Presumptive Disability Decisions: Challenges and Concerns
As part of its 2008 study of the current presumptive disability decision making process, IOM
conducted several open meetings to solicit input from stakeholders on their experience with the
presumption process. A general concern expressed by some stakeholders was that the IOM is not
charged with giving guidance on non-military exposures or alternate causes of certain diseases.71
Challenges Facing IOM Presumptive Disability Committees
As noted in the 2008 IOM study on the presumptive disability decision making process studying
the evidence base relevant to establishing service connection face the following challenges:
• few directly applicable epidemiologic studies;
• no contemporaneous exposure measurements;
• uncertainty about which veterans were exposed to which agents;
• multiple, possibly synergistic exposures;
69 The members generally are assigned to the working group by supervisory personnel within VHA, VBA, and OGC.
The working group may receive input from outside content experts as well as veterans, Veterans Service Organizations
(VSOs), and Congress.
70 Appointed by the VA Secretary.
71 National Academy of Sciences, Institute of Medicine, Improving the Presumptive Disability Decision-Making
Process for Veterans, Washington, DC, 2008, p.61.
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• possible long latency for health effects from some agents; and
• significant confounders.72
The practice of categorizing the strength of evidence is intended to assist the VA in making
evidence-based decisions. However, limitations in evidence inhibits the ability of IOM
committees to establish causal relationships between military exposures and long-term health
effects. IOM therefore has made recommendations to DOD and VA intended to improve the
evidence on exposures and health status of veterans.73
Concerns Expressed by Presumptive Disability Policy Makers
The narrowed scope of IOM research also presents a dilemma for VA policy makers whose
interpretation of study results are used to help determine which condition(s), if any, are given
presumptive status in evaluating disability benefits. For example, past IOM committees have not
been asked to evaluate the effects that certain exposures–common in nonmilitary settings–may
have on the health of veterans. Additionally, potential exposures may vary for individual veterans
depending upon where the veteran was deployed in proximity to hazardous conditions. VA does
not collect data on the exposure risk of individual veterans; therefore, IOM specifically reports
that the VA is “…hindered by not having exposure data for individuals.”74 The combination of
these factors makes it difficult to establish a direct cause-and-effect relationship between military
exposures and the specific health condition(s). Indeed, based on current statute, the VA is not
required to consider evidence on exposure magnitude or duration and all exposures are given
equal weight when determining health effects.75
Policy Options
This section briefly discusses two major policy options for the current process to establish
presumptions related to exposure to Agent Orange: (1) retain the process; or (2) revise the
process. Any change to the current process, which is authorized in statute, would require
legislation.
Retain the Current Process
If the current process were retained, the likelihood increases that conditions that are associated
with age and lifestyle—as opposed to chemical exposure—may become presumptive.
In addition, continuing the current system may also place veterans of more recent conflicts
including Gulf War I, Operation Iraqi Freedom (OIF) and Operation Enduring Freedom (OEF) in
a less favorable position for presumptive conditions than Vietnam veterans. Unlike the situation
with Vietnam veterans, in which the IOM is able to evaluate a substantial body of scientific
literature on the possible association between various diseases of interest and specific type of
exposure (i.e. herbicides), the plight of veterans who served in the Gulf region is far more
72 Ibid, pp.64-65.
73 Ibid, p.24.
74 Ibid, p.61.
75 Ibid.
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challenging. Not only are there concerns about dozens of different and unrelated environmental
hazards (some not under the control of U.S. Armed Forces), but many of the Gulf War era
veterans have complex multi-symptomatic conditions that have not been fully diagnosed:
The VA has had difficulty applying the [IOM] findings to Gulf War veterans because nearly
all of the reviewed Gulf War-related hazards represent common, well-characterized
occupational exposures that are experienced by virtually all Americans. It may come as a
surprise to learn that military environmental exposures generally closely mirror the
environmental exposures experienced by all Americans.76
Refine the Current Disability Presumption Process
Refinement of the current disability presumptions process would require establishing criteria that
convert the current VA process to a more formalized and transparent method of determining what
service-connected conditions will be given presumptive status. Specific improvements might
include (1) the creation of panels, independent of the VA, to review illnesses to be considered for
presumptions and make recommendations the VA Secretary; (2) using causation, rather than a
positive association as the standard for establishing presumptions; and (3) imposing time limits
on veterans’ presumption claims.
Independent Review of Proposed Presumptions
The use of independent advisory panels prior to conducting IOM-commissioned studies and
during deliberations to determine which condition(s) will be recommended for presumption to the
VA Secretary has been proposed as one option to increase transparency in the presumptive
disability process.
Currently, the VA Secretary initiates deliberations for presumptive disabilities based primarily on
issues raised by VSOs, Congress, or other stakeholders representing veterans in the presumption
process. To ensure transparency in how the decision to study certain condition(s) is developed, an
advisory committee consisting of an independent panel of experts could convene annually to
review proposed conditions and nominate condition(s) for further study based on available
scientific evidence that illustrates a connection between a certain exposure and a specific health
outcome. Public input could also be incorporated into the deliberation process. The advisory
committee, rather than the VA, could then charge IOM, or another independent research-based
entity, with conducting a study of the condition(s) that have been fully vetted.
Following the conclusion of IOM-commissioned studies, the VA follows a general internal review
process that includes an initial review by a working group consisting of VA representatives and
needed technical experts. A report from the working group is then forwarded to a high-level task
force which makes recommendations directly to the VA Secretary. The duties for reviewing the
results of IOM studies and making recommendations to the VA Secretary could also be delegated
to an independent panel, with deliberations open to the public.
76 Mark Brown, “Role of Science in Department of Veterans Affairs Disability Compensation Policies for
Environmental and Occupational Illnesses and Injuries, The Science for Judges IV,” Journal of Law and Policy, vol. 13
(2005), pp. 608-609.
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Use Causation as Basis for Presumptions
The Agent Orange Act of 1991 (P.L. 102-4) established the threshold for determining a
presumption based only on a positive association between herbicide exposure and a health
outcome as opposed to using causation as the basis. As a result, IOM Agent Orange committees
have used a framework based on association (sufficient, limited/suggestive,
inadequate/insufficient, and no association) between herbicide exposure and specific health
outcomes rather than identifying direct causal mechanisms.
Under current law, a positive association (between dioxin or other compounds in herbicides and a
specific condition) exists if the “credible” evidence for an association is equal to or outweighs the
“credible” evidence against an association.77 Also, under law, if a positive association exists, the
Secretary is required to issue regulations making the condition presumptive.78
As an alternative, following the conclusion of any IOM-commissioned studies and post-study
reviews, the VA Secretary could be statutorily restricted to only implementing presumptions for
conditions that have a clear and/or direct causal link to military service based on scientific
evidence. Conditions where evidence of a service connection does not meet the causal threshold,
should automatically trigger further research before the Secretary is required to make the
condition presumptive. A supplemental study examining the prevalence of the condition among
veterans who were deployed to an affected region as compared to an analogous group of veterans
who were not deployed could assist in determining whether that condition is more prevalent
among the affected veterans than the non-affected veterans. Data and technical experts from other
federal agencies such as the National Institutes of Health (NIH), the CDC, and the EPA could
assist in conducting this supplemental study. Condition(s) that are determined to have a strong
association with certain exposures, coupled with statistical evidence of higher prevalence rates
among the affected veterans, could be deemed sufficient for establishing a presumption.
Impose Time Limitations on Presumption Claims
An individual’s lifestyle, genetic heritage, and/or the aging process can have an effect on the
development of a variety of medical conditions. The influence of these factors is currently not
considered in the current presumption process. A health condition related to military service can
be expected to manifest within a proximate time period from exposure, and many diseases have
multiple risk factors. As time passes, age and lifestyle factors may have a greater influence on the
development of a health condition than prior exposure. Using scientific knowledge to impose
time limitations on when a condition(s) could be considered “service-connected” may help to
reduce the likelihood that extraneous factors—unrelated to military service—influence the
determination (or applicability) of presumptions.
77 38 U.S.C. § 1116(b)(3).
78 38 U.S.C. § 1116(b)(1).
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Appendix A. Disease Conditions Presumptively Service-Connected
Table A-1. Presumptive Service-Connected Diseases Based on Exposure to Agent Orange, 1985-2010
Legislation or Regulation
Presumptive Disease
Establishing Presumption
Date Established
Chloracne (a severe form of acne).
Adjudication of Claims Based on Exposure to Dioxin or
August 26,1985
Ionizing Radiation. Final rules. Federal Register,
50(165):34452- 34461.
Non-Hodgkin’s lymphoma (large group of cancers of
Claims Based on Service in Vietnam. Final regulation.
October 26,1990
lymphocytes-white blood cells).
Federal Register, 55(208):43123- 43125.
Soft tissue sarcoma (soft tissue sarcoma is a cancer of soft
Agent Orange Act of 1991 (P.L. 102-4). Codified
February 6, 1991
tissues such as muscles, tendons, and blood vessels). Does
Chloracne and Non-Hodgkin’s lymphoma previously
not include osteosarcoma, chondrosarcoma, Kaposi's
established by regulation and added Soft tissue sarcoma
sarcoma, or mesothelioma.
to the list of presumptive conditions.
Soft-tissue sarcoma including the following: Adult
Claims Based on Exposure to Herbicides Containing
October 15,1991
fibrosarcoma; Dermatofibrosarcoma protuberans;
Dioxin (Soft-Tissue Sarcomas) Final regulation. Federal
Malignant fibrous histiocytoma; Liposarcoma;
Register, 56(199):51651-51653.
Leiomyosarcoma; Epithelioid leiomyosarcoma (malignant
leiomyoblastoma); Rhabdomyosarcoma;
It should be noted that these regulations were
Ectomesenchymoma; Angiosarcoma (hemangiosarcoma
published to implement provisions of P.L. 98-542,
and lymphangiosarcoma); Proliferating (systemic)
which required that determinations as to whether
angioendotheliomatosis; Malignant glomus tumor;
conditions are related to dioxin exposure be made
Malignant hemangiopericytoma; Synovial sarcoma
after receiving the advice of the Veterans Advisory
(malignant synovioma); Malignant giant cell tumor of
Committee on Environmental Hazards (VACEH) based
tendon sheath; Malignant schwannoma, including malignant
on its reviews of scientific and medical studies.
schwannoma with rhabdomyoblastic differentiation
(malignant Triton tumor); glandular and epithelioid
malignant schwannomas; Malignant mesenchymoma;
Malignant granular cel tumor; Alveolar soft part sarcoma;
Epithelioid sarcoma; and Clear cell sarcoma of tendons
and aponeuroses.
Added the following to the list of soft-tissue sarcomas:
Diseases Associated With Service in the Republic of
May 19, 1993
Vietnam. Final rule, Federal Register, 58(95):29107-
Extraskeletal Ewing's sarcoma
29109
Congenital and infantile fibrosarcoma
Malignant ganglioneuroma
CRS-24
Legislation or Regulation
Presumptive Disease
Establishing Presumption
Date Established
Hodgkin's disease (is a type of lymphoma. Lymphoma is
Disease Associated With Exposure to Certain
February 3,1994
cancer of lymph tissue found in the lymph nodes, spleen,
Herbicide Agents. Final rule. Federal Register,
liver, and bone marrow).
59(23):5106-5107.
Porphyria cutanea tarda (disorder characterized by
thinning and blistering of the skin in sun-exposed areas)
Multiple myeloma (Multiple myeloma is a cancer that
Disease Associated With Exposure to Certain
June 9, 1994
begins in plasma cells, a type of white blood cell).
Herbicide Agents (Multiple Myeloma and Respiratory
Cancers) Final rule. Federal Register, 59(110):29723-
Respiratory cancers:
29724.
Bronchus
Larynx
Lung
Trachea
Hodgkin’s disease
Persian Gulf War Veterans’ Benefits Act of 1994 (P.L.
November 2, 1994
103-446). This law codified the diseases that were
Multiple myeloma
established by regulation since the enactment of the
Porphyria cutanea tarda
Agent Orange Act of (P.L. 102-4).
Respiratory cancers:
Bronchus
Larynx
Lung
Trachea
Prostate cancer
Diseases Associated With Exposure to Certain
November 7, 1996
Herbicide Agents (Prostate Cancer and Acute and
Acute and subacute peripheral neuropathy
Subacute Peripheral Neuropathy). Final rule. Federal
Register, 61(217):57586-57589.
Type 2 Diabetes (Type 2 diabetes“ is also referred to as
Disease Associated With Exposure to Certain
May 8, 2001
"Type II diabetes mellitus" or "adult-onset diabetes").
Herbicide Agents: Type 2 Diabetes. Final rule. Federal
Register, 66(89):23166-23169.
Diabetes mellitus (Type 2).
Veterans Education and Benefits Expansion Act of 2001
December 27, 2001
(P.L. 107-103) codified Type 2 Diabetes that was
established by regulation.
CRS-25
Legislation or Regulation
Presumptive Disease
Establishing Presumption
Date Established
Chronic lymphocytic leukemia (is cancer of a type of white Disease Associated With Exposure to Certain
October 16, 2003
blood cells called lymphocytes).
Herbicide Agents: Chronic Lymphocytic Leukemia. Final
rule. Federal Register, 68(200):59540- 59542.
AL amyloidosis (Amyloidosis occurs when abnormal
Presumptive Service Connection for Disease
May 7, 2009
proteins build up and form deposits. The deposits can
Associated With Exposure to Certain Herbicide
collect in organs such as the kidney and heart).
Agents: AL Amyloidosis. Final Rule. Federal Register
74(87):21258-21260.
Hairy cell leukemia and other chronic B-cell leukemias
Diseases Associated With Exposure to Certain
August 31, 2010
(rare cancer of the blood. It affects B cells, a type of white
Herbicide Agents (Hairy Cell Leukemia and Other
blood cell (lymphocyte)).
Chronic B-Cell Leukemias, Parkinson's Disease and
Ischemic Heart Disease). Final rule. Federal Register
Parkinson's disease (Parkinson's disease is a disorder that
75(168):53202-53216.
affects nerve cel s, or neurons, in a part of the brain that
controls muscle movement).
Ischemic heart disease (“an inadequate supply of blood and
oxygen to a portion of the myocardium; it typical y occurs
when there is an imbalance between myocardial oxygen
supply and demand").
Source: Table prepared by the Congressional Research Service based on Appendix F of in National Academy of Sciences, Institute of Medicine, Improving the Presumptive
Disability Decision-Making Process for Veterans, Washington, DC, 2008, pp. F2-F43 and Federal Register notices.
Notes: Definitions and/or description of diseases obtained from MedlinePlus of the National Institutes of Health http://www.nlm.nih.gov/medlineplus/ and from Federal
Register notices accompanying the establishment of presumptive diseases.
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Appendix B. Summary of VA’s Review of
IOM Reports79
The VA has not adopted formal procedures governing its internal review of IOM reports.
However, practice has been it involves a three-tiered review. In the first tier, a “Working Group”
of VA employees from different operational elements of the VA reviews the IOM report and any
other relevant evidence and prepares a summary of its assessment and a statement of
recommendations or options. This summary is intended for the benefit of a “Task Force”
composed of high-level VA officials. In the second tier, the Task Force, based on the Working
Group’s input, provides recommendations to the Secretary, usually in the form of a separate
written report. In the third tier, the Secretary determines, based on the Task Force’s input, whether
a presumption of service connection is warranted for any disease.
VA Working Group
The Working Group ordinarily consists of members of the Office of Public Health and
Environmental Hazards (OPHEH) of the Veterans Health Administration (VHA), the
Compensation and Pension Service (C&P Service) of the Veterans Benefits Administration
(VBA), and representatives from the Office of the General Counsel (OGC). Additionally, the
Working Group often includes other VHA personnel with specialized medical training or
experience concerning a health issue implicated by a particular IOM report. Members are
assigned to the Working Group by supervisory personnel within VHA, VBA, and OGC. The
Working Group convenes after receiving the briefing from the IOM committee. Prior to the
meeting, VHA personnel seek to identify, based on the IOM report and the committee briefing,
the diseases that may warrant special consideration because the IOM’s findings with respect to
those diseases appear to be potentially significant. At the initial Working Group meeting, VHA
provides the Working Group members with additional information concerning those diseases,
including copies of any significant scientific studies identified in the IOM report and other
information concerning matters such as the course of the disease, known causes or risk factors,
related conditions or health effects, latency periods (if any), and any other known relevant
information. OGC representative briefs the Working Group on the legal standard governing the
Secretary’s decision. Members of the Working Group discuss whether any of the IOM’s findings
appear to be potentially significant, in that they might warrant a presumption of service
connection for a particular disease or diseases, and the strength of the scientific evidence with
respect to such diseases. The Working Group will attempt to reach consensus as to whether the
scientific evidence appears to warrant a presumption of service connection for any diseases under
the applicable legal standard. If the Working Group reaches agreement that a presumption is or is
not warranted on the basis of the scientific evidence and the legal standard, it will agree to put
forth a recommendation based on that conclusion. In arriving at such recommendations, the
Working Group relies on scientific evidence and the legal standard, and does not consider matters
of governmental policy or cost. If the Working Group concludes that the scientific evidence and
legal standard do not provide a clear basis for recommending for or against establishing a
presumption, but permit a range of options, the Working Group agrees to set forth a range of
options for decision by VA policy-making officials. In those circumstances, the Working Group
79 Adapted from Department of Veterans Affairs, Office of the Secretary, Final Draft Report of Department of
Veterans Affairs Gulf War Illness Task Force to the Secretary of Veterans Affairs, March 29, 2010, pp. 86-87.
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will discuss the factors that preclude a clear recommendation, which may include ambiguity in
the governing statutory standard as applied to certain IOM findings, the limited or conditional
nature of the IOM’s findings with respect to certain diseases, or other factors. The Working Group
will discuss the decisional options available to the Secretary and may also discuss the factors that
may be relevant to the Secretary’s decision among those options. To this extent, the Working
Group may discuss the policy considerations that would be relevant to the Secretary’s choice
among permissible courses of action. Once the Working Group has reached agreement concerning
its recommendations or presentation of options, a written report is completed. The Report will
contain (1) a summary of the issues to be decided under applicable law and the IOM report, (2) a
summary of the findings contained in the IOM report, (3) a summary of the legal standard
governing VA’s decision, (4) a summary of the Working Group’s analysis of the medical evidence
in relation to the legal standard, particularly with respect to any potentially significant findings in
the IOM report, and (5) a statement of the Working Group’s recommendations or of the options
identified by the Working Group. The Working Group does not prepare or obtain a cost estimate
for the options, although it may provide general information concerning, e.g., the prevalence rates
of certain diseases under consideration. If the Working Group report lists a range of options
available to the Secretary, it would identify the scientific and legal considerations relevant to the
Secretary’s choice among those options, and may also identify policy implications associated
with various options.
VA Task Force
The Task Force consists of the Under Secretary for Health, the Under Secretary for Benefits, the
General Counsel, and the Assistant Secretary for Policy and Planning. There is no established
procedure for the Task Force’s deliberations. Task Force members receive a copy of the Working
Group report and, based on that report, provide advice to the Secretary concerning the Secretary’s
determination, which may include recommendations based upon the options, if any, outlined by
the Working Group. The Task Force often, though not always, provides a separate report to the
Secretary.
Secretary
Based on the Task Force’s report, the Secretary determines whether or not to establish
presumptions for any diseases discussed in the IOM report and directs appropriate action to
implement the decision.
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Author Contact Information
Sidath Viranga Panangala, Coordinator
Douglas Reid Weimer
Specialist in Veterans Policy
Legislative Attorney
spanangala@crs.loc.gov, 7-0623
dweimer@crs.loc.gov, 7-7574
Christine Scott
Umar Moulta-Ali
Specialist in Social Policy
Analyst in Disability Policy
cscott@crs.loc.gov, 7-7366
umoultaali@crs.loc.gov, 7-9557
Acknowledgments
Carol D. Davis, Julia Taylor, and James E. Nichols, Information Research Specialists in the Knowledge
Services Group, provided research assistance.
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