Agent Orange rule to allow retroactive claims

April 02, 2010 7:34 AM

Tom Philpott

About 86,000 Vietnam War veterans, their surviving spouses or estates will be eligible for retroactive disability compensation from the Department of Veterans Affairs undefined an average of 11.4 years for veterans and 9.6 years for survivors undefined under a draft VA rule to expand by three the number of diseases presumed caused by herbicide exposure in the war.

The 86,000 are beneficiaries who can reopen previously denied claims for these conditions: ischemic heart disease, Parkinson’s disease and chronic B-cell blood cancers in cluding hairy cell leukemia. Another 29,000 claims are expected to be approved this year for Vietnam veterans suffering from these diseases but applying for benefits for the first time.

The projected cost of this dramatic expansion of claims linked to Agent Orange and other defoliants deployed four decades ago is $13.6 billion this fiscal year and $42.2 billion over 10 years. VA plans to hire 1772 new claims processors, starting this October, to be able to handle these claims “without significantly degrading the processing of the nonpresumptive workload.”

In the proposed rule published March 25 in the Federal Register, VA officials explained that Secretary Eric Shinseki has cut the usual 60-day public comment period by half “to promote rapid action” on these claims.

When a final rule is published, soon after April 26, VA claim offices across the country can begin making payments. Veterans with these diseases will need to show they set foot in Vietnam during the war. Those who served aboard ship just off the coast remain ineligible.

John Maki, assistant national service director for Disabled American Veterans, said DAV was glad to see the comment period cut to 30 days. Otherwise, the draft regulation contains no surprises.

“It basically is going to take those three conditions and just add them to disabilities already listed as presumptive diseases for Agent Orange,” Maki said.

One surprise still might be the thoroughness of the draft rule’s analysis of the beneficiary populations and the costs facing the department from this wave of claims for both retroactive payments and new benefits.

Adding ischemic heart disease to the list of presumptive Agent Orange illnesses is by far the most significant part of the new rule, accounting for 82 percent of additional expected payments to beneficiaries.

The rule defines ischemic health disease as a condition causing inadequate supply of blood and oxygen to the myocardium, the middle and thickest layer of the heart wall. “IHD” can include, but is not limited to, acute, subacute and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (or spasm) and coronary bypass surgery, and stable, unstable and Prinzmetal’s angina.

Because IHD is a heart disease it “does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke,” the draft regulation explains.

Of 86,000 beneficiaries eligible for retroactive claims, VA estimates that nearly 70,000 of them are living Vietnam veterans, their average age now 63. Of those, 62,200 previously were denied compensation for IHD, 5400 were denied for B-cell leukemia and 2300 for Parkinson’s disease.

About 53,000 who previously filed claims for these diseases already are receiving VA compensation for other service-related diseases. Of those, roughly 8350 are rated 100-percent disabled and therefore might not be eligible for retroactive pay.

VA assumes that veterans with Parkinson’s disease or Bcell leukemia will be awarded a 100-percent disability ratings. The average rating for ischemic heart diseases is expected to be 60 percent.

In calculating VA costs from this change, VA assumes that 80 percent of the eligible population will apply for benefits and 100 percent of those who do will be approved. But eligible vets and suvivors must file claims to get paid; nothing will happen automatically. To file claims on line visit: http://vabenefits.vba.va.gov/vonapp/main.asp. Veterans without a computer can call a toll-free helpline at 1-800-749-8387.

VA maintains a directory of veterans’ service organizations with trained staff to help in filing claims. The website: http://www1.va.gov/vso/. Many state, county and local governments also have personnel to help. Find information on these agencies at: http://www.va.gov/statedva.htm.

VA also expects many inelgible veterans to file claims. They will be found ineligible because they can’t show they ever set foot in Vietnam though they suffer from one of the qualifying diseases. Many claims will be filed by veterans with hyptertension but those will be rejected because that condition is not a “heart disease” under the VA draft regulation.

In total, VA expects claims volume from presumptive Agent Orange diseases to hit 159,000 this year and to exceed 270,000 by fiscal 2019.

Maki noted that entitlement to benefits only occurs with final publication of the regulation.

Retroactive payments usually will be made back to the date a claim was filed for a presumptive disease.

“It is possible, since this is a librealized law, that somebody may be able to get the retroactive date (moved back) to one year prior to the effective date in the regulation, if they can show they had the claimed condition prior to that year,” Maki said.

The growing list of Agent Orange diseases stems of a court case, Nehmer v. Department of Veterans Affairs, filed in 1986. The class action lawsuit won by veterans, and reinforced by legislation, requires VA to direct the National Academy of Sciences to report every two years on any positive association between new diseases and exposure to herbicides in Vietnam.

Tom Philpott is a former editor of The Navy Times. Readers’ questions and comments welcome: e-mail to milupdate@aol.com; or write to Military Update, P.O. Box 231111, Centreville, VA, 20120-1111.