VA’s Rules on Agent Orange Effects Voided

A federal judge has thrown out the Veterans Administration’s rules on health damage attributed to the herbicide Agent Orange and has ordered the VA to reconsider the claims of more than 31,000 Vietnam veterans.

In denying most claims for health benefits related to Agent Orange, the VA wrongly required proof that the herbicide causes various diseases, U. S. District Judge Thelton Henderson said in a decision made public Monday. Statistical evidence showing a significant correlation between Agent Orange and the diseases would be sufficient, the judge said.

“These errors, especially sharply compounded with one another, sharply tipped the scales against veteran claimants,” Henderson said.

In a nationwide suit on behalf of Agent Orange claimants, Henderson struck down VA regulations that deny Agent Orange service-connected health benefits for cancers and all other diseases except one non-fatal skin condition, chloracne. He also ordered the VA to reopen all claims denied under those rules.

“This is a major victory with far-reaching implications,” Mary Stout, president of Vietnam Veterans of America, said.

“The ruling validates what Vietnam veterans have been saying for years, that the VA has failed to give Agent Orange victims a fair hearing. . . . I am optimistic that Congress will now act quickly to resolve this most painful legacy of the Vietnam War.”

Barry Kasinitz, spokesman for the 35,000-member group, said it will again sponsor legislation to require Agent Orange benefits for two types of cancer--soft-tissue sarcoma and non-Hodgkins lymphoma--and establish a new scientific panel, independent of the VA, to study the herbicide’s health effects. A similar bill was passed by the Senate last year but died in the House, he said.

Although Henderson’s ruling does not require the government to add any diseases to the service-connected list for Agent Orange, Kasinitz said the performance so far of the secretary of the new Cabinet-level Department of Veterans Affairs, Edward Derwinski, provides some grounds for optimism.

“We think that we probably stand a better chance of getting a fair review under the current Administration than we did under the past one,” Kasinitz said.

The VA was represented by the Justice Department, whose spokeswoman, Amy Brown, declined comment on the ruling, saying department lawyers had not seen it.

Agent Orange, whose toxic ingredient is dioxin, was used as a defoliant by the United States in Vietnam. Its health effects are sharply disputed.

The VA, relying on a review by an 11-member scientific committee, ruled in 1985 that only one condition, chloracne, could be considered a service-connected effect of exposure to Agent Orange.

Henderson rejected a challenge by the veterans’ group to the scientific committee’s review of studies on the effects of Agent Orange. But the judge said the standards the VA used in making its rules violated a 1984 federal law that was supposed to help Vietnam veterans get the health benefits they were due.

Henderson said the VA improperly required proof of a cause-and-effect relationship between the herbicide and a disease for which benefits would be granted. Instead, he said, the agency should have required only that statistics show a significant correlation between dioxin exposure and a disease, or an “increased risk of incidence.”

The federal law does not spell out the proper standard, but comments by members of Congress involved in passing the law showed that they opposed an overly stringent standard and felt that cause-and-effect proof was unnecessary, Henderson said.

He also said the VA had relied on statistical relationships, without requiring proof of causation, in granting benefits to veterans who were amputees and developed heart disease. Congress did the same thing in granting benefits to former prisoners of war who suffered various diseases, relying on a VA statistical study, Henderson said.

The judge also found an error in the VA’s refusal to apply to its Agent Orange regulations the same “benefit of the doubt” policy it uses for review of individual benefit cases--a policy that favors the veteran in close questions.

Although the language of the law is unclear, the “remedial purpose” of the law favors a lenient standard, Henderson said. Noting that veterans would be entitled to a favorable standard if they made individual claims, he said Congress would not have intended to put them in a worse position through a collective regulation.