Veterans Law Library
A Comprehensive Collection of
Materials Relating to the Veterans
Benefits Adjudication Process
Selected Materials on Claims Related to Agent Orange
Overview
Statutory Law
Regulations
Certain medical conditions are presumed to be related to exposure to Agent Orange
in service.  Depending upon the condition, the presumption might apply only if the
condition manifested within a certain period of time after service.  If a presumption
applies, then the claimant does not need a medical opinion to state that there is a
relationship between the condition and Agent Orange.  However, the claim will still
need to be supported by an adequate medical diagnosis of the condition and proof
that the veteran was exposed to Agent Orange.  Generally, veterans who served on
land in Vietnam are presumed to have been exposed, but other types of exposure
may require direct proof.  If a condition were not recognized by VA as being
presumptively caused by Agent Orange, benefits may still be granted if there were
persuasive medical evidence that the condition is related to Agent Orange.

There have been lawsuits filed in the federal courts of general jurisdiction relating to
Agent Orange, but most have no bearing on the VA claims system.

VA has posted online a list of U.S. Navy and Coast Guard ships operating on the
waters of Vietnam between January 9, 1962, and May 7, 1975, associated with
presumptive Agent Orange exposure.  [link to the general page] [link to the
alphabetized ship list]
Most specific provisions relating to Agent Orange are found in 38 U.S.C. § 1116
[available here].  In particular:

  • Subsection (a)(2) specifies certain conditions presumed to be related to
    Agent Orange.

  • Subsections (b) and (c) describe how VA can add additional conditions to
    the list of those that are related to Agent Orange.

  • Subsection (f) describes some veterans who are presumed to have been
    exposed to Agent Orange.
VA's primary regulations implementing the laws related to Agent Orange are
38 C.F.R. § 3.307 [available here], and 38 C.F.R. § 3.309 [available here].  
In particular:

  • Subsection 3.307(a)(6) specifies certain "chronic" conditions presumed to be
    related to Agent Orange.

  • Subsection 3.309(e) specifies all the other conditions presumed to be related
    to Agent Orange.
Selected Cases
A few cases relating to Agent Orange claims:

    Federal Circuit:

  • Haas v. Peake, 544 F.3d 1306 (Fed. Cir. 2008) (regarding whether
    Navy veterans can be presumed to be exposed to Agent Orange)
    [download .pdf]

  • LeFevre v. Secretary, Dept. of Veterans Affairs, 66 F.3d 1191 (Fed.
    Cir. 1995) (regarding the relationship between VA’s rulemaking and
    the National Academy of Sciences' findings)

    CAVC:

  • Polovick v. Shinseki, 23 Vet. App. 48 (2009) (analyzing whether
    medical evidence showed a relationship between a condition and Agent
    Orange) [download .pdf]

  • Douglas v. Shinseki, 23 Vet. App. 19 (2009) (discussing when VA
    may seek evidence that a condition is not related to Agent Orange)
    [download .pdf]

  • Stefl v. Nicholson, 21 Vet. App. 120 (2007) (analyzing whether
    medical evidence showed a relationship between a condition and Agent
    Orange) [download .pdf]

  • Williams v. Principi, 15 Vet. App. 189 (2001) (en banc) (discussing
    the relationship between VA claims based on Agent Orange exposure
    and the Nehmer law suit in the U.S. District Court for the Northern
    District of California)
Federal Register Notices
When VA proposes or finalizes a regulation relating to Agent Orange conditions or
when it withdraws such a proposed regulation -- including the list of conditions that
are presumed to be related to Agent Orange -- it publishes a public notice in the
Federal Register (which all government agencies use to announce proposed and final
rule changes).

    Final Rules:

  • Herbicide Exposure and Veterans With Covered Service in Korea,76
    Fed. Reg. 4345 (Jan. 25, 2011) [download .pdf]

    Proposed Rules:

  • Herbicide Exposure and Veterans with Covered Service in Korea, 74
    Fed.Reg. 36640 (July 24, 2009) [download .pdf]

  • Disease Associated With Exposure to Certain Herbicide Agents:
    Peripheral Neuropathy, 77 Fed. Reg. 47795 (Aug. 10, 2012)
    [download .pdf]

    Withdrawals of Proposed Rules:  

  • Definition of Service in the Republic of Vietnam, 74 Fed.Reg. 48689
    (Sept. 24, 2009) [download .pdf]
  
       Notices

  • Determinations Concerning Illnesses Discussed in National Academy
    of Sciences Report: Veterans and Agent Orange:  Update 2010,  77
    Fed. Reg. 47924 (Aug. 10, 2012) [download .pdf]


                                        
Selected Books

  • The National Academies, Blue Water Navy Vietnam Veterans and Agent
    Orange Exposure (2011) [download .pdf here]

  • Gerald Nicosia, Home to War:  A History of the Vietnam Veterans' Movement
    (2001).  In particular, see Chapter 9.
Law Review Articles
  • Kristi A. Estrada, Note, Welcome Home:  Our Nation's Shameful History of
    Caring for Combat Veterans and How Expanding Presumptions for Service
    Connection Can Help, 26 T.M. Cooley L. Rev. 113 (2009) [download Word
    copy here]
“The willingness
with which our
young people are
likely to serve in
any war, no matter
how justified, shall
be directly
proportional as to
how they perceive
veterans of earlier
wars were treated
and appreciated by
this country.”

George Washington