I found this on my LexisNexis CD...and thought that those who post on this Forum might be interested.
Survivir
7.3.5 DIC Benefits Related to Agent Orange for Surviving Family Members of Vietnam Veterans
Survivors may establish eligibility for DIC benefits using the special rules that govern presumptive service connection. For example, a survivor is entitled to DIC when a veteran dies of a condition determined by the VA to be presumptively related to herbicide exposure. This Section describes the special rules that apply in those cases. However, because service connection may be established directly for a condition not on the list of presumptive conditions, it may be possible for a survivor of a Vietnam veteran to show entitlement to DIC via direct service connection--if medical evidence shows that the condition that caused the veteran�s death resulted from an event or incident in service (such as herbicide exposure), even if the condition is not on the presumptive list of herbicide-related conditions. 354
For many years, the VA denied any connection between the exposure of Vietnam veterans to the spraying of the chemical Agent Orange, and the serious diseases and deaths that were related to this exposure. As a result, thousands of DIC claims filed by qualified surviving family members of Vietnam veterans were denied.
In the 1990s, the VA changed its policy and many of its regulations relating to Agent Orange. 355 The VA now acknowledges that certain diseases, and deaths that have resulted from those diseases, are related to exposure to Agent Orange. These diseases are listed in Table 3-1, in Section 3.8.1.2 of this Manual.
As a result of these regulatory and policy changes, the VA now pays monthly service-connected death benefits (DIC) to thousands of survivors of Vietnam veterans who died of diseases currently associated with exposure to Agent Orange. Thousands more are entitled to DIC and should apply. Also, as discussed in Section 8.6 of this Manual, the estates of deceased Vietnam veterans may in some cases be entitled to receive retroactive compensation that was due the veteran. The survivors of many Vietnam veterans who died years ago are still unaware of the changes that may entitle them to DIC benefits. Also, deaths of Vietnam veterans continue to occur due to diseases associated with Agent Orange, generally making the qualified surviving family members entitled to DIC. Finally, if they were to apply for DIC again, many survivors of Vietnam veterans who had applied for DIC and had their claims denied, would be entitled to receive both prospective (running into the future) and retroactive (back) DIC benefits. Therefore, it is important for advocates to understand the criteria that may entitle a survivor to receive DIC due to a veteran�s Agent Orange exposure.
To be entitled to DIC using the rules that establish a presumptive relationship between herbicide exposure in Vietnam and certain diseases, the survivor must be a qualifying surviving spouse, surviving child, or surviving parent of a veteran who
� served in Vietnam during the Vietnam era; 356 and
� was diagnosed with one or more of the diseases currently presumed to be related to Agent Orange, which was the principal or contributory cause of the veteran�s death, 357 and
� for some, but not all of the diseases, developed symptoms of the disease to a degree of ten percent or more within the required time period. 358
A survivor who can show that the veteran met these requirements does not have to prove that the veteran was actually exposed to Agent Orange. In fact, the law requires the VA to presume that any veteran who was in Vietnam during the Vietnam era was exposed. 359
In many cases, establishing the cause of death can be done by simply sending a copy of the death certificate listing the Agent Orange-related disease as the principal or contributory cause of death to the VA. In cases in which the death certificate does not list a disease associated with Agent Orange as the principal or contributory cause, more evidence will be required. In these cases, the survivor should obtain any medical records, or other medical evidence (such as one or more statements by a doctor) showing, at a minimum, that it is �as likely as not� that the Agent Orange-related disease was the principal or contributory cause of death. The stronger the evidence of causation the better.
A surviving spouse, child, or income-eligible parent of a Vietnam veteran who establishes a current right to DIC benefits may qualify for retroactive (back) benefits, as discussed in Section 8.6 of this Manual. 360
Under certain circumstances, the surviving spouse or child of a Vietnam veteran who is now ineligible to receive DIC (for example, because the spouse is remarried or the child is now an adult) may nevertheless be entitled to retroactive benefits based upon a previous DIC claim filed during a period of eligibility. 361
**Advocacy Tip** If an advocate has a client who is not currently receiving DIC but may be entitled to DIC based on a Vietnam veteran�s death from a disease now associated with Agent Orange, the advocate should urge the client to immediately file a formal or informal claim for DIC benefits with the VA. Also, if the advocate believes that a client who is in receipt of current DIC benefits for a ����Vietnam�� veteran�s death, may be entitled to retroactive benefits, the advocate is advised to contact the NVLSP. 362
Even if the Vietnam veteran did not die of a disease which is currently related to Agent Orange, a survivor should be advised not to entirely give up hope. Until at least the year 2015, the VA will continue to consider, based on reports issued by the National Academy of Sciences, whether or not other diseases should be added to the list of diseases associated with Agent Orange. If other diseases are added, the qualifying survivors of Vietnam veterans who have died of these diseases may also receive DIC benefits.
Footnotes
354. Combee v. Brown, 34 F.3d 1039, 1041-45 (Fed. Cir. 1994) (a veteran may establish entitlement to direct service connection for a condition caused by exposure to ionizing radiation by submitting a medical linkage opinion, and rules relating to presumptive service connection for radiation-related conditions do not preclude a veteran from proving direct causation).
355. These changes in policy and rule-making came about in, in large part, in response to public pressure, the Veterans� Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, 99 Stat. 2725 (1984), reprinted in part at 38 U.S.C.S. � 1154 note; the Agent Orange Act of 1991, 38 U.S.C.S. � 1116(a); Nehmer v. U.S. Veterans� Admin., 712 F. Supp. 1404 (N.D. Cal. 1989).
356. See 38 C.F.R. �� 3.307(a)(1), 3.309(e) (2007). The Vietnam service requirement is discussed in Section 3.8.1.1 of this Manual.
357. See 38 C.F.R. �� 3.307(a), 3.309(e) (2007). See discussion of �principal or contributory cause of death� in Section 7.3.2.1.
358. 38 C.F.R. � 3.309(e) (2007). These time period requirements appear in the right column of Table 3-1, in Section 3.8.1.2 of this Manual.
359. See 38 U.S.C.S. � 1116(a); 38 C.F.R. � 3.307(a) (2007). See also Section 3.8.1.1 of the Manual for a more detailed discussion of the Vietnam service requirement.
360. See 38 C.F.R. � 3.816 (2007) (�Awards under the Nehmer Court Orders for disability or death caused by a condition presumptively associated with herbicide exposure�).
