Agent Orange Presumptions

Good afternoon everyone. Thank you for joining us today on Facebook live. We are here at Chisholm Chisholm and Kilpatrick My name is Maura Clancy. I’m joined by Lindy Nash and Emma Peterson. And today we’re going to be talking about agent orange suppositions So while we have our discussion today, we’re also going to be posting materials on the comments feed next to this video So as you follow along with us, please feel free to utilize any of the resources that we post in the comments We likewise might have time to take a couple of questions through the comments section so Please feel free to leave any Questions that you have there we’ll either respond to them in writing or we might be able to take a couple today While we discuss agent orange hypothesis, so without further ado Lindy why don’t you start us off by Telling us generally What is a presumption of exposure so when we talk about Agent Orange and herbicides things that are going to be brought up today We talk about the exposure ingredient of an in busines trouble or affair Can you tell us about what it means to be inferred exposed? Sure, so VA actually created these presumptions to Assist veterans in going busines tie, so to help make it a little bit easier So the presumption of exposure basically means that if you provided at a certain place during a specified period of time You’re inferred exposed to certain dangerous chemicals or environmental the dangers and it various kinds of takes the place of part number two in assistance associate So as most of you know with busines connect You need three elements the first to diagnosis.The second one would be that In-service event or harm and the third is the Nexus. So if you’re inferred to be subject to a Something like Agent Orange that kind of takes the place of component number two, which would be that in-service event or injury So the hypothesis it sounds like are important because they alleviate the burden that the ex-serviceman has to prove certain things in order to gain Benefits, so if you’re attempting assistance connection as Lindy said you need to be able to show that you have a current disability that there was an in-service event and that there was a link between the in-service event and the current disability but the presumption of exposure Takes the place of the in-service event or injury Prong of the test so it can be very helpful if you can if VA can recognize or infer that you were exposed to Herbicides.Yup, certainly and I think we’re gonna get into more detail a little bit later on in this presentation But we will be more specific about arranges you have dished certain periods of time and so on but time generally speaking right now if you’ve served at a certain place during a specified period of time you can be inferred to be subject to particular herbicides. And that was a really good overview I think of the service-connection constituents but only in case anyone has any additional questions about The more of the fundamental rights and in case we don’t get to cover them in too much depth today Definitely feel free to access any resources that we have on our website at CCK-law.com as well as in the comments feed now We’ve done service connection topics before, we’ve done other revelation topics before so feel free to check those out if for whatever reason what you were Looking for is not covered today But back to the the presumption word and laying the foundation for what we’re discussing today.Lindy the presumption of exposure Is different from a presumption that someone is entitled to service attachment. So it’s different than the eventual question in the case. Some epoches VA will reference a presumption of service connection. Can you tell us what that represents? Yes, so there’s a slight inconsistency now and it mostly really means that VA is inferring that your disability is caused from work Normally due to one of these exposure issues that we’re going to come more into in a minute So this actually makes the place of factor amount three, so that nexus opinion that you usually need in service connection claims if VA Presumes that your disorder was caused by service then you actually don’t need that nexus element which can be really huge for your argue Great and Emma Can you tell us what are the conditions or some of the conditions that VA recognizes as being due to Herbicide exposure and how they come to those conclusions? Sure, so Some of the common ones that I’m sure many only knew that people can get presumed busines contact for if they had you know Boots on the floor in the right place the right time for herbicide revelation Agent Orange revelation are: diabetes coronary vein sicknes ischemic cardiac infarction Parkinson’s canker prostate cancer respiratory cancers and the inventory of the different states can be found in the Federal Regulations 38 CFR 3.309 will give you the inventory of conditions for herbicide exposure that list comes from you know, Congress mandated that VA look into this and research it and so Research is conducted by the National Academy of Science the Institute of Medicine branch looks at this and determines whether there is a relationship between the poisons in Agent orange That are actually again listed in the regulation and these various– development of these various problems So as Lindy mentioned if you’re in the right place at the right time So you’re presumed uncovered and you have one of these conditions you’re going to get the presumption of service connection.But they each operate independently so you could be in the wrong place at the wrong occasion But if you can show exposure and you have one of these conditions, you’ll get service connection Vice versa, you could be in the right place at the right time But have some other condition that’s not rostered as one of the presumptive Maladies if you can get medical Nexus information, you can get service connected So if you’ve got both you’re golden you’re in the clear You certainly don’t have to do much other than file your declaration But there’s still going to be some legwork that you have to do if you’re missing either the presumption of exposure or presumed case Okay, immense. And the index is the roster is the Contains the conditions that VA will infer due to herbicide exposure But that doesn’t mean that if you have a condition that is not on the schedule That you believe is otherwise due to herbicide exposure as you mentioned before you can’t register a claim It’s just that as Emma said you will still need to produce the Nexus evidence in other words you’ll still need to show the relationship between what you currently have if it’s a condition not on the presumptive roll and Why you believe that was related to herbicide exposure.Usually that needs to come in the form of a medical opinion, Right, and VA is constantly looking at this as science comes, you know modernized as more research is done as more people are studied You know that list can change it’s changed dramatically in the past diabetes. I think was added in 2002 or 2003 Ischemic heart disease was added in 2010 and I fantasize currently VA is looking at adding they haven’t yet So don’t go, you know running out there and saying, you are familiar with CCK “ve been told” I can get service-connected for this but they’re looking at adding bladder cancer hypothyroidism and parkinson’s-like evidences So you don’t have an actual diagnosis of Parkinson’s disease But you’d have something in that family.Great and and that last note is important because we do get a matter of that a lot So VA did go on the record and say that they were going To consider or going to look at adding cases to the list Which I considered that they do occasionally because the National Academy of Discipline will raise medical information I think about every two years they’re commissioned to do a report and sometimes their report will reveal that there is More evidence proposing a link between a certain condition that they’re studying and herbicide showing However, the VA needs to act on that, contributed things to the list themselves So that the schedule is updated and expanded in the regulation 3.309 that Emma referenced earlier so they have mentioned lending those conditions that you were talking about They have not already done so yet I think in maybe March of this year They said it would be within 90 dates and we haven’t seen anything yet.So we will definitely be watching that. Yeah paws crossed Yeah, we continue to watch it and we would provide an update if we had one but we are not hearing a whole lot right now So that includes the factors that you can– that VA will recognize as due to herbicide exposure So now we want to talk about where you need to have been to Establish that it should be presumed that you were exposed to herbicides.So Lindy the big one is Vietnam. Yes. Can you tell us about What a person needs to show if they served in Vietnam or near Vietnam to be able to get that presumption? Sure So you may have heard the call boots on the foot. That’s what we say all the time So if you are a veteran who dished boots on the sand in Vietnam I’m gonna speak the year so I don’t mess them up, January 9th 1962 through May 7th 1975 then you will be inferred exposed to herbicide agents.So that is great for your contend Especially if you have one of those disabilities that Emma just rolled if you have one of those disorders you have Diagnosed health on that list and you were in Vietnam boots on the foot during that period of time Then, in theory, you should be all set and busines communication should be granted VA does sometimes do mistakes and may disclaim it incorrectly But frequently you should be granted work joining if you were at boots on the anchor in Vietnam during that period of time and you have one of those conditions listed in 3.307 e. Right? I consider yes look at both 3.307 and 3.309 for the full picture of what you can get done. Right. Yep So normally that is kind of the biggest thing beings must be considered for presumed showing actions boots on the grind in Vietnam okay, and then recently there have been developings to VA’s policies in the law about Veteran who served in the liquid circumventing or in Vietnam.Emma can you tell us about that? Sure, so Before a major Federal Circuit Case came out and then Congress acted on it There was a distinction between brown water ex-servicemen and blue-blooded liquid veterans. So brown water ex-servicemen were those that were on Vessels that you are familiar with traveled inland waterways in Vietnam –it sort of diversified will vary depending on what period of time you’re looking at VA’s clarity evolved over time So for a era people who did dock in DaNang Harbor that was brown water, and then they reformed their brain I said no No that’s blue water and Prompted a entire multitude of litigation so fast forward to this year major decision comes out from the Federal Circuit procopio That talked about how you know since Congress decided to call Vietnam the Republic of Vietnam that really imply the the true International law definition of a country– which includes up to 12 air mile off the coastline After that decision came out Congress behaved and play-act some off-color liquid legislation So now we have this legislation that presents us precise coordinates generally fitting within that twelve nautical miles offshore So any veteran who dished Within 12 air mile of Vietnam or within those coordinates in the legislation can now be presumed exposed to herbicides that are actually opens it up to all these Navy veterans have been talking for years about how You know, listen Agent Orange and herbicides were scattered on on ground mass, but it leached into the water Right, the water is being circulated through our ship.We’re bathing in it. We’re drinking it We were exposed too. So this widens the presumption to all those folks now, which is great. It really opens it up One thing to note is that the Secretary has issued a remain secretary of VA has issued a stay on All these demands wanting he situated the suspension button on them So you can still file for a service connection if you have entered for service connection, and you’re a Blue Water veteran Your claim is you know in a queue. It’s in line They’re just not making any decisions on them hitherto until they figure out how they’re gonna decide. What crafts were where At what time so that stays in place until January 2020. I think it’s still important to get your claim in as soon as possible because your effective year will be governed by that But just note that there will probably be a bit of a wait before you hear something back Clangs good. Yeah, that’s that this is very important stuff because it’s very new and as Emma said they have stayed these cases so Sometimes that might stimulate person think that they should be dissuaded from filing specific claims, but that’s not really the event Once they lift the stay and start working on these cases.It will be important to have your declarations in so Emphatically have a look. See if you fall within the 12 geographical mile hopefully VA will come up with some information that might be helpful for parties to figure out if they were, And we we have some resources on this. I believe on the website as well, which is again at CCK-law.com. Yeah, there was another facebook live on Procopio precisely. That was really helpful I guess Zach and Brad talked about how about 80,000 veterans are gonna be affected by this Procopio of decision So when we say it’s huge it really is gonna be a big deal in VA Law.So certainly get your claim in and if you already have one in like Emma said time be patient a little bit longer. And Outside of Vietnam there are also presumptions in place for veterans who served on or near the Korean DMZ Which is the Demilitarized Zone. Lindy, can you tell us about how that hypothesi drives if the ex-serviceman served there? Yep, so just like Maura said if you sufficed on or near the Korean DMZ Then you will –or you can be presumed to be subject to Agent orange again I’ll read the date so I don’t get it wrong April 1st 1968 through August 31 st 1971 the only trick here is that VA has recognized and the Department of Defense has recognized particular groups That they are able to presume uncovered This is a relatively long roll and we have it on our website and it’s also on VA’s website So I advocate you go check it out if you performed during that period of time in Korea On or near the DMZ then you should definitely go look to see if your unit is one of the recognized units VA will often give you pushback if you were not in one of those contingents, so it might you know Take a little bit of legwork as we spoke previously, but unquestionably still possible to get service connected via Agent orange exposure.Great and DMZ occurrences can be tricky because Instead of the standard if you were in Vietnam, you’re presumed exposed Standard really that they use for Vietnam veterans. At the DMZ They say if you performed on or near the DMZ and so the question becomes And a question that VA hasn’t really rebutted is what is near the DMZ? Right. Is it within 500 hoofs? Is it within five miles? We don’t know. Is it south of the civilian restrict wrinkle? It gets really interesting and risky So certainly talk with your representative, VSO, our colleagues at DAV, an attorney Your friends from assistance about you know what they’re hearing and what they’re look because it can get slippery and disorient but certainly winnable Mm-hmm. And another thing that can be helpful. If you are a veteran that served at the DMZ is talking about Proximity to the DMZ in arrange words it is therefore won’t merely be enough to say that you’ve served in Korea in the time frame Or even sometimes showing that you were in a particular unit Obviously, there’s the roll of recognized parts but records aren’t foolproof, and we know that records can get lost over the years we’re talking about You know times of service from decades ago.So the records might not be totally terminated And so if you can provide VA with more information about where you were if you remember that might help them figure out Whether your closenes was near enough to the DMZ, so things like that can be helpful to try to piece together what you need. And on along same pipelines, there’s also The issue that comes up with parties that served in Thailand, right? So herbicides were used in Thailand and VA recognizes this but there’s currently no presumption the way that there is for Vietnam veterans For Thailand ex-servicemen, so does someone want to talk about What VA is doing with these cases how they assess the facts here? Sure. I’ll start Lindy then you back me up. I’ll jump in. So like Maura mentioned there’s no presumption but there is a policy and it’s a pretty good policy to start so for veterans that were stationed on specific Royal Thai Air Force footings any time between the same period of time for Vietnam ex-servicemen January 1962 to May 1975 If your military occupational specialty or your job duties or what-have-you Put you on the perimeter of that base Or brought along in linked with the bound VA should admit revelation to herbicides So what does that aim the perimeter? So they were scattering these groundworks Operationally with herbicides– VA has conceded– those same herbicides that were used in Vietnam For tactical grounds to prevent, you know, waylays affects things like that.You gotta be able to see what’s going on to guard the base So there are certain MOS’s that VA will Mostly as a programme question agree you were on the bound so royal— excuse me, veterans in the United states air force that had military police dog handle obligations perimeter certificate Or other plausible evidence that you were on or near the perimeter will get that exposure admitted The basis that VA is looking at right now are utapao, Ubon, nakhon phanom, Udorn, takli korat, and dong nuong. Very good, Emma. Thanks. I tried. Always good to try Gotta give it a try. But generally, you know, those are the major air force groundworks Army ex-servicemen, so Not simply Air Force kinfolks, but infantry veterans who are over there who rendered bound certificate also get this presumption So again it actually it’s a matter of putting yourself in the best place at the right time where you got one of these bases? And did you go across a perimeter? Did you suffice along the bound are you on the flight strand was the machinist supermarket next to the flight line Which was next to the perimeter? or your barracks next to the perimeter, you know Where you in render did you have to drive across the perimeter each day into township? To get quantities and lowering them off other groundworks and come back So it’s really it’s a little bit broader than maybe VA wants to concede first go-around But again it’s similar to the Korean DMZ stuff You need to provide maybe some extra evidence beyond just your service records to get this policy Presumption.Definitely, we do explanations all the time with our clients who provided at these Thailand Air force bases Like Emma said only proving that they were you know Maybe they crossed the bound every day or formerly a few weeks or whatever their enterprise was Usually the government has good testify as to being near the boundary So we do evidences all the time to substantiate that. And we try to make sure that we keep it as expansive as is practicable and I think that that’s probably the best approach because even though the policy talks about your occupational imperatives in busines The the policy is still other reliable evidence that you performed on or near the bound I think something along those lines and so anything that is relevant to exposure to the perimeter even You know extracurricular tasks some arranges some people smoke cigarettes along the boundary or played cards with their friends along the bound or When in and out the locate several times like Lindy said regularly Multiple periods a week a month.So anything like that we try to bring in sometimes the barracks were even located along the perimeter so that’s not going to be something that VA can tell based on your occupational specialty whether you were there, but Information that you can provide that you can remember is very very important in those cases because again, just like with the DMZ Rule, it’s sort of this indistinct near the boundary near the DMZ and that’s undefined and that can be difficult For VA to get right, frankly.Yeah. Inconsistent. Yeah, and I’m just gonna say if you have anybody words as well Maybe there’s a friend that you served with which are capable of testify you being on or near the perimeter Those are helpful likewise pictures we submit draws all the time if you have anything to show where you were That’s supportive Maps even of the Air force bases We submit those sometimes. So any type of evidence like that to prove where you were is great Great, and there’s also I conceive a hypothesi and Emma, you can tell me if I’m wrong about this for Veterans who worked with c-1 23 aircraft right? Can you tell us about that? Sure, so the c-1 23 aircraft actually sprayed the herbicide scattered Agent Orange in Vietnam They were sent back to the US.Used by the Us air force and Air Force Reserves So veterans might be exposed to herbicides who never even set foot in Vietnam Thailand DMZ You know were stateside the whole time during the conflict So if “youre gonna” a member of a certain Air Force cell Where contaminated recognize 123′ s was allocated to and you had regular contact with the aircraft between 1969 and 1986 So these these times are different Than the the Vietnam boots on the anchor Presumption exposure and you developed Agent Orange disabilities. You can get presumption of exposure and work connect reservists at particular bases Also between the same years can get the presumption. But again, you’re going to look at the regulation 3.307 e right? The disabilities are in E. And I conclude the but the C-1 23 regulation is 3. 30 7a expressed appreciation for. Yes. Thats where to get me exact precise contingents and Information about who gets the presumptions.It’s a little bit more nuanced. I Will say that at least from what we’ve seen These generally get granted if you have the right unit and you have the right disorders We don’t see a good deal of pushback from VA On granting this necessity. But still good to know because this is a lesser known presumption I thoughts when we talk about– For sure.– herbicide exposure, absolutely and finally there is a list of other locations that we haven’t talked about today Where herbicides were used experimented stored Etc.The spots are very variable and so are the dates of the storage. I make a lot of them do line up with the Vietnam era but not exactly all Based on the years that we’ve talked about today. We will make sure to conclude that index accessible through our website even through the comments or Through the website as we said before at CCK-law.com it’s also available on VA’s website, right? Did anyone want to anything because I don’t think we receive a ton of those cases But it is important to know that there are some theories some locations Where herbicide arguments would be important. Right. And VA has– it maintains a list of locations both within the states in the United Position and outside the United State where herbicides were either experimented or accumulated so there were folks that were involved in the testing of Agent orange and herbicides before they actually kind of wanted to use full-scale and then likewise the disposal of Any leftover product you know after the conflict was over. So certainly take a look at that inventory You know, you might have a very clear memory of working with it and you may in fact be entitled to a presumption Did you view Rhode Island was on the roster? I did see there is a location in Rhode Island.I didn’t know that– Kingston Yeah, I’m going to have to look at it again Once again everyone we’re here today talking about Agent Orange hypothesis at Chisholm Chisholm& Kilpatrick, we’re gonna wrap up with some final questions But as we have said before, delight feel free to utilize the resources that we’ve been post throughout this discussion Through the comments feed So we talked about the presumption of exposure which replaces the in work of occasion ingredient for service connection So it’s an important hypothesi if you’re trying to establish that you have a condition that’s due to herbicide exposure we too has spoken about the presumption of service connection and VA’s register of conditions that they will presume as Being due to herbicide exposure and we talked about the locations and appointments Where herbicides were used in what time frame and we got into a little bit what kind of evidence you might need to Substantiate your claim that you were exposed to herbicides if it’s necessary So do you both want to offer some, in your experience, some common missteps that you’ve seen the VA draw with respect to herbicide Exposure and specifically the hypothesis? Sure.I think one of the big ones that you see is VA Decide–especially for Thailand veterans– talking about how based on old information that the herbicides applied were just business and not tactical and for all intents and purposes there really is no distinction between The herbicides “thats been” sprayed in Vietnam and the herbicides “thats been” sprayed around bounds in Thailand and again that’s old-time information and VA is a big Institution and can be slow moving So it is important to push back on that and appeal that because the most current information and even general counsel for VA himself has conceded that The same type of herbicide was used in Thailand, so that that’s old-fashioned information and that’s a common gaffe I think we verify the V–A either the regional office or their council regrettably stimulating But there are avenues to appeal that and proper that misunderstanding So that’s one thing I would certainly be on the lookout for.Definitely because the way in which you use the substance doesn’t change the substance itself. That’s always– Right. kind of my favorite thing that they say it’s like well it was used for this purpose It wasn’t used for this other intent, but we’re still talking about the same. It’s the same compound. So tactically or otherwise I don’t care if it was used for plot upkeep. It’s still the same dioxin. It’s still pernicious So it’s same thing with you know, with your MOS you’re on guard duty or you’re playing cards.The toxicity doesn’t change because of your occupational or recreational Activities so all things to keep in mind. Those are good points. I was gonna say actually the same thing about Thailand actions I contemplate I probably discover the most pushback with those especially with what Emma said and also again with the military occupation You know We have consumers. Who were In accounting or maybe directed in receipt or did something that isn’t typically thought of as being on or near the perimeter And VA does not like that So again lay accounts are really important buddy statements are important anything Maybe you went to town daily or weekly to have dinner and you spanned the perimeter Whatever it is showing that you were on or near the bound is important. So certainly push back on that too Great. And along those same rows your recline statements are important and sometimes VA doesn’t ever was informed that And so we have had you know plenty of instances in cases where the records like the unit records or The personnel assignings from the military forces don’t specifically equip enough documentation or fairly evidence of herbicide exposure and VA will kind of hang their hat on that and say well there’s nothing in now about Herbicide exposure.There’s nothing in now about your show to herbicides or use of herbicides or being near them. And so we can’t agree revelation but abundance of people have described instances credibly in which they Were near sites that VA knows to have been scattered Some people don’t have records that they were in Vietnam This is a more uncommon client But “were having” seen a few instances where the VA refuses to accept a statement that a ex-servicemen even in a particular location So as Lindy and Emma I fantasize have both enveloped really well Get your manifestation in And if VA is relying on the absence of evidence or the lack of enough records try to supply a record for them Because they’re supposed to be considering the evidence that you submit Any final remembers for parties to keep in mind? Nope. Just keep an eye out for any Changes in the suppositions and if they do reform ensure that you are get your claim in as soon as possible after that change. Great Yeah, and I would just say, you are familiar with, because procopio came out it’s okay that it’s abode That doesn’t mean anything bad for your claim.It precisely makes get it in there If you are one of those veterans with one of these conditions and you served within 12 geographical mile of Vietnam Definitely file your say do not hesitate to do so. Excellent. Any questions? Perfect. Thank you all for affiliating us today. We will see you next time.