VA’s Rules on Agent Orange Effects Voided

A federal judge on Monday overturned Veterans Administration rules for deciding claims of injury from the chemical defoliant Agent Orange, ordering the agency to reconsider its denial of benefits to 31,000 Vietnam veterans since 1984.

U.S. Dist. Judge Thelton E. Henderson held that the VA has been demanding more proof than required under federal law that the herbicide, widely used during the Vietnam War, injured servicemen.

The agency failed the law’s mandate to give veterans the “benefit of the doubt” in assessing disability benefit claims, Judge Henderson said in a 48-page opinion made public Monday.

“These errors compounded one another, as they increased both the type and level of proof needed for veterans to prevail,” the judge said. “They sharply tipped the scales against veteran claimants.”

The ruling was hailed by Vietnam Veterans of America, the organization that joined with a group of 13 veterans in a lawsuit challenging the VA regulations.

“This is a major victory with far-reaching implications,” said Mary Stout, president of the 35,000-member organization. “The ruling validates what Vietnam veterans have been saying for years--that the VA has failed to give Agent Orange victims a fair hearing.”

Spokesmen for the Veterans Administration and the Justice Department, which represented the government in the case, declined comment pending a review of the decision.

The new head of the Veterans Affairs Department, Edward Derwinski, said last month the agency would review its policy on disability benefits for veterans claiming injury from the defoliant.

Monday’s ruling came in another round of a wide-ranging legal battle over a chemical used extensively by U.S. forces to clear dense jungle land during the 1960s in Vietnam.

Thousands of veterans have asserted that their exposure to the chemical dioxin, contained in Agent Orange, caused them to contract forms of cancer, skin rashes, intestinal diseases, heart problems and liver disease.

In 1984, manufacturers of dioxin agreed to establish a $180-million fund to compensate veterans in a separate class-action lawsuit filed against the chemical makers and the government. A federal appeals court dismissed the action against the government, finding veterans could not recover damages for injuries suffered through military service.

On another front, veterans sought disability compensation from the VA, but the agency consistently took the position that only one disease--chloracne, a skin condition--is caused by exposure to Agent Orange.

Congress in 1984 passed new legislation aimed at providing compensation for all disabilities that are connected, “based on sound scientific and medical evidence,” with service in Vietnam.

The VA, in turn, adopted new rules to assess such cases, based on a review of the problem by an 11-member scientific panel. But in the resulting process, the agency has turned down more than 31,000 claims of injury from Agent Orange, and the veterans group asked Henderson to throw out the VA’s new regulations.

In his ruling, Henderson rejected objections by the veterans to the panel’s conclusions concerning the defoliant’s effects. But the judge said the agency’s standards for assessing claims were too stringent and contrary to the 1984 law passed by Congress.

Henderson said that the VA erroneously required proof that there was a “cause and effect” relationship between dioxin exposure and a disease for which benefits may be granted.

In fact, he said, Congress required only that there be a significant “statistical association” between dioxin and a particular disease, a much less demanding standard.

The judge conceded that the language of the statute was “at best, ambiguous,” but said statements made in Congress provided a legislative history supporting the conclusion that statistics showing an “increased risk of incidence” would be sufficient to grant benefits.

Such a “statistical association” standard has been employed to approve claims in cases involving other service-related diseases, Henderson noted.

The judge went on to uphold the contention by the veterans group that the law required the VA to give the “benefit of the doubt” to veterans when there was “an approximate balance” of positive and negative evidence over whether a particular disease was caused by dioxin.

This policy was likened by one of the sponsors of the legislation to the well-established baseball rule that “a tie goes to the runner,” Henderson observed.

Such an interpretation also accords with the remedial purpose of the legislation, he said.