Restrictive Lung Diseases (COPD) and Agent Orange . . . Scientific Research to Assist Your Claim

In November 2012, we published a short article entitled Agent Orange Presumptive Conditions – A Nation’s Belated Acknowledgement to Vietnam-Era Veterans.  As the above article documents, while respiratory cancers are considered presumptively service connected to herbicide exposure, restrictive lung diseases (such as Chronic Obstructive Pulmonary Disease (COPD)) are not.  But cf. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (the Veterans’ Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, does not preclude establishing entitlement to service connection with proof of actual direct causation).

Establishing direct service connection for restrictive lung diseases, such as COPD, will be difficult absent a solid medical nexus statement from the veteran’s physician.  That said, there is significant medical and scientific research analyzing the correlation between dioxin exposure and conditions such as COPD.  For those veterans seeking compensation for such conditions, I have provided citations and links to some of the operative studies on the issue:

1. Chiba, Takahito, et al., Role of the Arylhydrocarbon Receptor (AhR) in the Pathology of Asthma and COPD, Journal of Allergy, Vol. 2012 (2012)), at http://www.hindawi.com/journals/ja/2012/372384/

2. Cypel Y., and Kang H., Mortality patterns of Army Chemical Corps veterans who were occupationally exposed to herbicides in Vietnam, Ann. Epidemiol.; Vol. 20:339-346 (2010), at http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1167&context=publichealthresources

3. Bertazzi, Peter A., et al., The Seveso Studies on Earl and Long-Term Effects of Dioxin Exposure: A Review, Environmental Health Perspectives, Vol 106, Supp. 2 (April 1998), at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1533388/

If you are confused about how to advocate of your VA disability compensation or pension claim, please do not hesitate to contact me for a free consultation at sdirector@finkrosner.com or (732) 382-6070.

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Seth Director

About Seth Director

Over nine years of trial and appellate litigation experience at the Department of Justice and the Army Judge Advocate General Corps where I frequently handled high profile, complex litigation before various federal courts. I am now an associate in the Veterans’ Law section at the law firm of Fink Rosner Ershow-Levenberg, LLC, and a Department of Veterans Affairs accredited attorney. The Veterans’ Law section at Fink Rosner Ershow-Levenberg offers nationwide representation at all levels of the VA administrative process, as well as in the Federal court system, at the U.S. Court of Appeals for Veterans Claims, and the U.S. Court of Appeals for the Federal Circuit. I focus solely on Veterans’ law and Veteran-related issues, claims and benefits and can offer a unique perspective as a veteran of Operation Iraqi Freedom.

20 thoughts on “Restrictive Lung Diseases (COPD) and Agent Orange . . . Scientific Research to Assist Your Claim

  1. I’m a vietnam vet stationed in the iron triangle, war zone d. I believe I was exposed to radiation from agent orange. Most recent I was diagnosed with COPD, by my primary care physican. My first agent orange exam came in 1982, that doctor told me what to look for in my 20th year anniversary. He said my Kidneys. Liver, or Pancreas would go bad. I have now had pancreatitus for 26 years. In Jan. I got a call from the dept.of vetran servs.saying the Va now reconizes pancreatitus,caused by agent orange, and you have back-pay coming. I have never recieved anything, and no one admits to making the call. Any help would be helpful.

  2. Norman,

    Pancreatitis is not one of the diseases to which the presumption of service connection applies for veterans of the Vietnam War under 38 C.F.R. § 3.309(e). That said, the presumptive diseases set forth in Section 3.309 are not the only means of establishing service connection. Feel free to give me a call at (732) 382-6070 or via email at sdirector@finkrosner.com to discuss further. I should be able to triage some of the issues and provide specfic guidance on how to proceed.

    Sincerely,

    Seth

  3. Back in 2006 I had a heart attack. The Baylor doctors said it was congestive heart failure.
    The V A finally agreed, and I got back pay compensation at a 100% disability up to April of 2012, then they cut my disability back to 30% then a month later to 40%.
    They also said I have COPD, but it is because I smoke. Maybe if they had not furnished cigarettes in our C rations I wouldn’t have started smoking, like a lot of others did while they were in Vietnam.
    It must have been a very lucrative contract with the tabacco companies.

  4. Michael, please be aware that if you had a prior claim denied for a form of Ischemic Heart Condition there may be an issue regarding the effective date of award as a Nehmer-class member. Feel free to contact me at sdirector@finkrosner.com or (732) 382-6070.

  5. I was recently denied a claim I had for COPD and they said it was not service connected. but I was in Vietnam and I was getting 100% for prostate cancer until this year. I started getting it in 2000 now they have reduced my percentage to 40% because of some more claims I have. hypertension, low back strain and the cancer which they have reduced because of the remission..

  6. George:

    Feel free to call me at (732) 382-6070 to discuss. COPD is not presumptively service connected for Agent Orange (dioxin) exposure. That said, veterans can still establish service connection on a direct basis if their COPD is causally related to a condition/event that occurred in service. Good Luck. Seth

  7. I am a U S Army vietnam veteran 90% disability 100% ui I have a Calcfied aotic valve, High Bp, .copd, Graves diease , allergic to uv rays are these symptoms service connected

  8. Jimmy, don’t see a specific question, but feel free to call me at (732) 382-5060 or email at sdirector@finkrosner.com. There are forms of monetary compensation that a veteran may be eligible to receive in excess of a 100% disability rating (specifically various forms of Special Monthly Compensation). If your service-connected disabilities are increase due to individual unemployability sometimes we still need to appeal decisions regarding specific ratings for individual disabilities. This sometimes needs to be done so that a veteran can obtain employment without the concern of losing entitlements or to smooth the transition for survivor benefits in the event of a veterans death later in life.

  9. I recently filed a claim with the VA for eschemic heart disease. I served in Vietnam 1960-1963.
    The supporting documentation I submitted included 10 a ten year period from 2004-2014. In addition to my by-pass surgery noted in the documentation, the fact that I had COPD was noted.
    Will the VA consider both eschemic heart disease and COPD in determining compensation?

  10. John:

    I suspect if you simply filed the claim for IHD, the RO will only open up a claim for IHD. If you filed for both conditions the VA will consider both. Will email you, because tactically it may be beneficial for you to have the IHD claim considered and adjudicated before considering filing for COPD. Seth

  11. I have an extremely rare blood disorder, Polycythemia Rubra Vera. Normally this disease is only found in Old country Jewish. There are no Jewish blood relatives in my family. I did serve 2 years in Helicopters in Viet Nam. Oct. 68 thru Oct. 70. At one time or another I was in every part of Viet Nam. My hematologist questions whether there is some connection to the disease. This is considered a Non Lethal Blood Cancer, if treated. I am currently on Chemo Pills that I take twice a day and will take them forever. Maybe you can answer the question is it, or should it be covered under the causes of Agent Orange? Thank you.

  12. Tom, First the caveat . . . not a doctor but I do try and keep myself informed about medical conditions. I don’t believe that Polycythemia Rubra Vera (PRV) is considered a form of B-Cell leukemia. My lay understanding is PRV is a bone cancer that effects the red-blood cells. The distinction being, B-Cell leukemia is a presumptive condition, while other forms would not be subject to the presumptive regulations governing Agent Orange exposure. I did locate one BVA opinion that service connected PRV on a direct basis. This was done after the veterans physician proffered a medical opinion. BVA opinions cannot be substantively considered related to another veterans claim, however, provide a terrific roadmap for veterans. Link at http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp11/Files4/1139490.txt

  13. Seth: Thanks for the reply. Polycythemia Rubra Vera is the rarest form of Blood Cancer and is formed in the Bone Marrow. It not only increases the red cells, but also the white cells and platelets. My VA Dr. monitored my situation for 5 years and never addressed it. He misdiagnosed it and called it Secondary Polycythemia. When it was finally addressed was when I had a Heart Attack last August and my blood work was “Critical”. This was at a private hospital who did a stint and have since been treating me for the blood. I might add that at no time in 5 years did my VA Dr. refer me to a VA Hematologist. He was prepared I think to let me die. Bottom line and after reading the prior case, which was awarded, should I seek a disability claim and if so is this something that you can handle or can you refer me to someone that can. Thanks again.

  14. Tom, foremost, ischemic heart disease is a condition presumptively related to Dioxin exposure (Agent Orange). If you are not currently service connected for that condition, please considering filing for this condition first. Tactically, for Vietnam vets I try to file the easy issue (heart) through the fully developed claim program (FDC); get a decision back; then file for the more complex etiological issues if needed. In terms of PRV have your doctor draft a medical opinion if possible. The VA may consider this a presumptive condition (though I don’t believe it is classified as a B-Cell leukemia or myeloma) or under direct service connection. Feel free to email me, and may be able to direct you to a good VSO or pro bono organization in your area. Seth

  15. I opened a claim for service connection to Agent Orange which was denied and closed after appeal in 2005.They stated there’s was never any Agent Orange where I was stationed at Supic Bay Philippines,Cubic Point separate guard co.But there was,while I did century duty along the Camayin Pier and Baston Pier,Agent Orange was brought in and I guarded the Naval Ammunition Depot.I was seen at Clark Air force Base Phillipines,for severe itching,blisters and rash.I was placed in a lite box for treatment and it worsened,told I was a light reactor.Now years later I cannot tolerate sun exposure at all.I do receive after much battle 60percent for eczema and psoriasis.Should I reopen a claim for exposure?I also have COPD and other health issues .Thank you.

  16. James, Agent Orange exposure is not compensable under Title 38 . . . it is the underlying disability that is compensable. Thankfully, they did service connect your skin condition on a direct basis. A 60% disability rating is the maximum compensable disability rating for the diagnostic code for eczema/dermatitis. If you were not stationed in a location that is presumptive for exposure (i.e. Vietnam), you’ll have to demonstrate direct exposure to a tactical herbicide (to include Agent Orange). COPD is not a condition presumptive for dioxin exposure, so I advice that your treating physician review your service medical records/personnel records and, if willing, proffer an opinion as to the causal connection between any disability (such as COPD) and what occurred in service. Good luck. Seth

  17. Seth,
    This is not an exposure question but deals with the approved claims for presumptive or direct service connected conditions. I have read many comments where the veteran was award “back pay” for conditions that was many years prior to the claim. My claim retroactive pay was limited to “from the date of the claim” or 1 year but never longer. Do you know which is correct? VA also made an administrative error on the amount of my initial claim in 1988 which they corrected in 2013 but only authorized retroactive payment to the date of the claim 8/2013. I only discovered the error when a VA phone rep asked me why I was only being paid at a no dependents rate for my 30% rating back then. I have never been unmarried since 4/4/1969 and all of my military records to include DEERS and other databases have always been up-to-date, especially at the time of the claim award. I never received any communications from anyone questioning my dependency status and never indicated otherwise on any paperwork. At first they stated that the dependency statement was part of the claim processing until I showed an original copy of my claim award with no dependency question on it at all. Since no effort by VA was made to determine my dependency status and awarded me the w/no dependents rate; aren’t they responsible for the error back to the date of the claim and error? Thanks

  18. Jack, The general rule is that the effective date of award for a claim will be the date of filing; however, there are a number of exception to the general rule. I usually leave the proverbial ball in the veteran’s court. If the veteran/claimant wants to forward me copy of the Rating Decision
    I’m happy to review and give my opinion if there is an effective date of award issue that I spot. Easiest vehicle is via email at sdirector@finkrosner.com or via fax at (732) 382-7986.

    The “one year prior” you are hearing about can apply in situations where, off the top of my head: (1) there is a liberalizing law that formed the basis for the grant of service connection; (2) this was a veteran’s initial claim filed via the FDC program; or (3) the veteran filed for an increase of a service connected disability and evidence establishes that the disability had increased in severity up to one year prior to the date of filing. Those are the three separate regulatory provisions that the “one year prior” could have application. There are separate provisions for earlier effective dates (lets say to the date of filing prior now-final Rating Decision. Dependency status is a separate animal and happy to clarify if you want to give me a call at (732) 382-6070.

    In short, maybe but is fact and issue-dependent. Seth

  19. Im just finding out about AO Exposure for those who did not go to Vietnam. I took part in Bold Eagle Excessive at Egland AFB Florida in 1983. It seems with the research ive been doing, that Base was the main US base for testing AO and other toxins and i’m finding that clean up didnt take place until the late 80′s, early and late 90′s. 4 years after being there, I started having collapsed lungs, 1987 they cracked my left side open and removed blebs, some of my upper and lower left lobes. I had 2 more events on the right side, the second in 95′ish, the operated. I have had an open claim, appeals and BVA on my lungs since 95 and was finally awarded SC for it in 2010 and with my combined SC’s put me at 70%, 60 of which was my lung condition. In Feb of this year, my VA RO reduced my rating for my lungs to 0% while they were sapose to be addressing a Remand from BVA for the RO to address 4 issues, only 2 were addressed (dependents and trailing Board Hearing Date scheduled), they initiated a File Review and said there was a CUE to which i appealed and from the “proposed Rating Reduction” letter to the actual reduction, they did not follow CFR which makes it an “Unlawful Reduction” per CFR. While on active duty, i have been exposed to countless chemicals, probably like every other Vet who served, and provided proof that sides on me (Benefit of Doubt) CFR)) yet they keep messing with me. Still in appeal and with the RO. I came across a group member of a group on FB asking about exposure to AO and other from Egland AFB so i started research and found this site. I was diagnosed with COPD sometime around 95 i think. Ive only found one BVA case so far (Citation Nr: 1226982
    Decision Date: 08/06/12 Archive Date: 08/10/12) that has awarded SC for exposure at Egland AFB but its not for COPD, or Blebs/collapsed lungs (Blisters and for lack of words, Pockets, that could bursts. Do you know of any cases like this i can referance. Thanks in advance! -Dave

  20. Dave, I’m going to simplify the procedural waters. VA has proposed reduction in rating percentage for respiratory disease (uncertain which diagnostic code it is currently rated under). The VA did not propose severance of service connection, so this is not an issue driving forward. I’ll also make a reasoned guess as to why you were initially granted S/C – the accepted exposure for tactical herbicides at Egland AFB was prior to 1983 and I suspect you were granted service connection because your service medical records demonstrated a respiratory condition while in service . . . not because of latent manifestations of dioxin exposure while in service. Will email you copy of DBQ for respiratory conditions, completion of this will remedy the question of current rating percentage. Seth

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