As an Agent Orange exposed veteran, I am here to tell you that the PACT Act significantly accelerates the processing of claims for VA toxic-exposure-related benefits due to veterans. Those benefits can include monthly compensation for disabilities that affect a veteran’s ability to work, a benefit which automatically [under 38 U.S. Code § 1710(a)] includes no-cost healthcare for the disability. While compensation claims must be based on a presumption in the law or evidence of a direct service connection, the hurdle for no-cost healthcare for a toxic-exposure related disease (my type of claim, discussed below) is lower.
Initial Processing of My Claim
In May 2016, I filed my claim for no-cost healthcare (only) for an asymptomatic premalignant condition (called MGUS) related to my toxic exposure and pursued it to no avail under existing VA law. The VA claims processors offered uninformed excuses like they did not believe that I served in Vietnam, that I was exposed to Agent Orange, that MGUS was actually a disease, or that MGUS was related to my exposure (even though the National Academy of Medicine had found that it was, under a VA contract). I came away with the impression that the VA is a very “top-down” organization and the overall response was something like “if a toxic-exposure event or related disease does not appear on an official VA list, it does not exist.”
Everything Changed When the PACT Act Became Law
Then, in August 2022, when the PACT Act that Senator Jon Tester (D Mont.) had adroitly shepherded though Congress was signed into law by President Biden, everything changed. Within a year (by July 2023), my claim was granted with an effective date of the date the PACT Act became law. By December 2023, a VA C&P (medical) examination (that should have been ordered years earlier) determined that another asymptomatic disease in my medical record was related to my MGUS. This also qualified me for no-cost healthcare for both of those conditions from May 2016, the effective date of my original claim.
While my claim was for healthcare only under 38 U.S. Code § 1710(e), the VA adjudicators determined that I had established the required “nexus” between my toxic exposure and my diseases and therefore granted me a direct service connection. It was impossible to tell whether the adjudicators were uncomfortable with reliance on my 38 U.S. Code § 1710(e) approach and defaulted to the normal way they decide claims or whether the evidence was so overwhelming that a service connection was granted instead of only free healthcare eligibility. The effect appears to be the same, in that both of my service connected diseases are asymptomatic and appropriately rated at zero percent disabling.
In compliance with another VA catch 22, within 30 days of my award, I submitted to the VA a listing of the visits for which I should be reimbursed for copayments and travel reimbursement claim forms for those visits. (I was disappointed that I had to explain to two VA medical center travel offices that the 30-day rule applied to the date I became eligible for the no-cost healthcare and not the actual dates of the healthcare visits).
The PACT Act Covers All Veterans
I want to emphasize that the PACT Act provides similar benefits to all veterans for many other toxic exposures. The criteria for no-cost healthcare established under the PACT Act are set out in 38 U.S. Code § 1710(e) The criteria differ depending on the particular war or other toxic exposure activity in which the veteran participated and take into consideration the “fog of war” that combat creates:
- Vietnam-era herbicide-exposed veteran: any disease notwithstanding that there is insufficient medical evidence to conclude that such disability may be associated with such exposure.
- Radiation-exposed veteran: any disease suffered by the veteran that is listed elsewhere in the law or any other disease for which the Secretary determines that there is credible evidence of a positive association between occurrence of the disease in humans and exposure to ionizing radiation.
- Active-duty Persian Gulf War veteran: any disease, notwithstanding that there is insufficient medical evidence to conclude that such disability may be associated with such service.
- Post-9/11 combat veteran: any illness, notwithstanding that there is insufficient medical evidence to conclude that such condition is attributable to such service.
- Veteran who participated in certain chemical and biological warfare testing: any illness, notwithstanding that there is insufficient medical evidence to conclude that such illness is attributable to such testing.
- Veteran who served on active duty at Camp Lejeune, North Carolina, during a specified period: any of the illnesses or conditions listed in the law, notwithstanding that there is insufficient medical evidence to conclude that such illnesses or conditions are attributable to such service.
- Beginning not later than dates specified in the law, a toxic-exposed covered veteran (generally defined as a Gulf War or post-9/11 veteran) or a toxic-exposed veteran who deployed in support of a contingency operation (generally the War on Terror) or a veteran who participated in a “toxic exposure risk activity” (as that term is defined in the law) while serving on active duty: any illness.
Note that the meaning of the term “positively associated with” simply means that a particular toxic exposure has been shown by science to statistically significantly increase the risk of contracting one or more particular diseases. The word “may” means that something is possible. Proof that the toxic exposure caused the disease is not necessary if the benefit being sought is only free healthcare for a particular disease. Also note that the hurdle for being eligible for free healthcare is lower for more recent wars because Agent Orange has shown that it can take decades to determine the diseases that are related to particular toxic exposures.
Situations in Which the VA Will Not Provide Free Healthcare
The PACT Act stipulated that the VA may not provide free healthcare to the above veterans in certain situations. For Vietnam-era veterans, the VA may not provide free healthcare for a disability that is found, in accordance with guidelines issued by the VA Under Secretary for Health, to have resulted from a cause other than an exposure to a toxic substance found in a herbicide or defoliant used for military purposes. Neither may the VA provide free healthcare for a disease for which the National Academy of Sciences has determined that there is limited or suggestive evidence of the lack of a positive association between occurrence of the disease in humans and exposure to a herbicide agent. Those are low hurdles because (over the years) the National Academy has found only one health outcome for which there was limited or suggestive evidence of no association between exposure to the herbicide components of interest.
For other than Vietnam-era herbicide exposed veterans and radiation-exposed veterans, free hospital care, medical services, and nursing home care may not be provided with respect to a disability that is found, in accordance with guidelines issued by the VA Under Secretary for Health, to have resulted from a cause other than the described service, testing, or activity.
How New Research on Toxic Exposures Is Handled
Importantly, the PACT Act also mandates that the VA use a new process to decide whether new studies about particular toxic exposures should support the granting of claims for veterans’ benefits. For example, the process will be used to determine whether dementia and kidney cancer may be associated with AO exposure. Research by some VA scientists recently concluded that dementia was associated with Agent Orange exposure, while other VA scientists disagreed, but the researchers were not dissuaded. The primary herbicide in Agent Orange (2,4,5-T) was recently associated with being diagnosed with kidney cancer (renal cell carcinoma). Another instance is that low-level nerve gas (sarin gas) exposure was associated with Gulf War illness in recent research.
Helpful Hints
I emailed hundreds of veterans’ advocates, VSOs, and lawmakers many times to help pass the PACT Act and I am proud that Senator Tester fought for the law to pass. Here is what I learned:
- A veteran does not have to qualify for a compensable physical disability to benefit from the new law.
- Consult with Veteran Service Organization claims assistance experts when you prepare your claim.
- If an existing claim was denied, notify the VA that the PACT Act now supports your claim to preserve your filing date, which is the date your benefits will begin.
- If you are only after no-cost healthcare for a toxic-exposure disease pursuant to 38 U.S. Code § 1710(e) make that clear and ask for the VA Regional Office to decide only that “matter.” If you are also eligible for monthly disability compensation, file a second claim for that benefit and provide evidence of a service connection to the toxic-exposure disease.
- Consider filing an intent to file if you need more time to develop your claim.
- You can file online but keep a paper copy of everything.
- After you file, keep track of which healthcare visits are related to your toxic-exposure disease.
- If you are asked by the VA to undergo a VA-funded C&P exam, congratulations! In order to justify VA funding of the exam, the VA must have made a finding that “the disability or symptoms may be associated with the claimant’s . . . service” which is all you need to prove to have your claim for free healthcare allowed.
- Make sure to submit a Freedom of Information Request to obtain a copy of the results of any VA-funded C&P exam. Another VA Catch 22 is that the results will not appear in your official VA claim file.
- Remember to file your travel reimbursement claims for each related visit within 30 days of your award date.