Summary of Agent Orange Rules Involving Naval/Air Service
By the National Veterans Legal Services Program

The problem: Since early 2002, the VA has taken the position that in order for a Vietnam veteran to be presumed to have been exposed to Agent Orange, the veteran must demonstrate that he or she actually set foot in Vietnam. This is often very difficult for Navy and Air Force veterans, as they may have actually had duty or visitation in Vietnam, but they cannot prove it. Records verifying their claims, such as in-country medical records, may have been destroyed. The VA has been doing two things: (1) denying service connection for initial claims; (2) re-visiting claims that were previously granted and “severing” service connection.

The above reflects a change in position by the VA, as until February 2002, a favorable VA manual provision provided that if a veteran received the Vietnam Service Medal, exposure to Agent Orange (that is, Vietnam service) was conceded.

Legal Background: VA regulations provide that a veteran is entitled to the presumption of exposure to Agent Orange if he or she served “in the Republic of Vietnam.” Qualifying Vietnam service includes service in the waters offshore and service in other locations if that service included duty or visitation “in Vietnam.” 38 C.F.R. § 3.309(a)(6)(iii) (2003) (emphasis added).

The VA Adjudication Procedure Manual M21-1 (called the M21-1 manual), which is the “Bible” for the adjudication of claims at Regional Offices, provided that if one received the Vietnam Service Medal, and as long as that service did not consist exclusively of “fly-over” duty, a veteran was presumed to have been exposed to Agent Orange. VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, para. 4.24g. (Change 76, June 1, 1999).

We believe that the M21-1 Manual was “substantive,” in that it is binding on the VA decision-makers, including the Board of Veterans’ Appeals, and has to be applied. Therefore, if a veteran received the Vietnam Service Medal based on Air Force or naval service, and had one of the Agent Orange diseases, in the absence of contradictory evidence, service connection is presumed.

The M21-1 Manual provision discussed above was not inconsistent with the Agent Orange Act of 1991, which did not require that veterans actually set foot on Vietnamese soil in order to be considered to have been exposed to Agent Orange. All that the law requires is that one had duty or visitation “in the Republic of Vietnam.” The term “in the Republic of Vietnam” could mean many things (for example, it could mean within the 12 mile territorial limit of the country), and therefore the Manual provision that recognizes the Vietnam Service Medal as warranting the presumption of Agent Orange exposure is not contrary to the law.

The “substantive” nature of the M21-1 provision has not yet been decided in any case before the Court of Appeals for Veterans Claims (although the VA settled a case at the Court in December 2003, just days before oral argument). NVLSP currently has several cases at the Court, in the early stages.

The 2002 Revisions to the M21-1: The M21-1 Manual provision was withdrawn in February 2002 (for claims filed before that date, the favorable provisions should apply). Nonetheless, NVLSP believes that we have a very strong argument that the provision is still binding because the VA withdrew the provision without benefit of public notice and comment, which violates the Administrative Procedure Act.

We suggest that if you have an adverse finding of Vietnam service, you file a Notice of Disagreement and Substantive Appeal (sample appeal language is provided below). Please advise us if you do not succeed and wish assistance before the U.S. Court of Appeals for Veterans Claims.

Example 1: Denial of service connection
Please accept this as a Notice of Disagreement with your decision of [date], denying entitlement to service connection for lung cancer. My military service included duty and visitation in the Republic of Vietnam. In addition, I received the Vietnam Service Medal based on my naval [Air Force] service in the Republic of Vietnam. Under the Agent Orange Act, in conjunction with the VA DJUDICATION PROCEDURE MANUAL M21-1, Part III, para. 4.24g. (Change 76, June 1, 1999), exposure to Agent Orange should be conceded. If you are unable to resolve this Notice of Disagreement favorably, please process my case so that I may perfect my appeal to the Board of Veterans’ Appeals.

Example 2: Denial of dependency and indemnity compensation (DIC)
Please accept this as a Notice of Disagreement with your decision of [date], denying entitlement to dependency and indemnity compensation. My late husband [wife] had military service that included duty and visitation in the Republic of Vietnam. In addition, my late husband [wife] received the Vietnam Service Medal based on his [her] naval [Air Force] service in the Republic of Vietnam. Under the Agent Orange Act, in conjunction with the VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, para. 4.24g. (Change 76, June 1, 1999), exposure to Agent Orange should be conceded. If you are unable to resolve this Notice of Disagreement favorably, please process my case so that I may perfect my appeal to the Board of Veterans’ Appeals.

Example 3: Severance of Service Connection or DIC
Please accept this as a Notice of Disagreement with your decision of [date], severing service connection [severing DIC benefits]. My [my husband/wife’s] military service included duty and visitation in the Republic of Vietnam. In addition, I [my husband/wife] received the Vietnam Service Medal based on my [his/her] naval [Air Force] service in the Republic of Vietnam. Under the Agent Orange Act, in conjunction with the VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, para. 4.24g. (Change 76, June 1, 1999), exposure to Agent Orange should be conceded. Thus, your decision of [date] did not properly constitute a finding of “clear and unmistakable error” of your earlier finding that service connection [DIC benefits] was [were] warranted. If you are unable to resolve this Notice of Disagreement favorably, please process my case so that I may perfect my appeal to the Board of Veterans’ Appeals.


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