Agent Orange law changes as new cost fears surface
By Tom Philpott | | Published: October 15, 2015
Two weeks ago, the House and Senate veterans affairs committees quietly allowed a provision of the Agent Orange Act of 1991 to expire. How significant that will be for Vietnam veterans and their benefits is disputed.
Committee staff and the Department of Veterans Affairs agree the change has not impacted the VA secretary’s authority to decide to expand the list of diseases presumed connected to wartime herbicide exposure.
But veteran advocates and at least one lawmaker suggest the change is intended to dampen VA cost risks and perhaps ease political pressure on the secretary and Congress facing a potential tsunami of disability claims.
That scenario assumes that a final review of medical science will establish a stronger link between Agent Orange and hypertension (high blood pressure), a condition that the Center for Disease Control says is so common it afflicts a third of the U.S. adult population
VA asked Congress to keep the Agent Orange law intact five more years. Rep. Timothy J. Walz (D-Minn.), a VA committee member, offered a compromise, a bill to leave the law unchanged for two years, long enough so its secretarial review requirements held during VA consideration of a final report of the Institute of Medicine (IOM) of the National Academy of Sciences on health conditions associated with Agent Orange.
The VA committees declined to back these delays because, said a House committee staff member, under separate law “the secretary already has authority to make such [presumption] decisions, and we felt he did not need to be compelled by [the Agent Orange] law to do so.”
The provision that “sunset” Oct. 1 required the secretary to adhere to certain standards and procedures in determining if additional diseases associated with herbicide exposure should be presumed service connected. Vietnam War veterans diagnosed with ailments on the presumptive list qualify for VA disability pay and medical care.
The expired provision also set a timetable for the secretary to accept or reject IOM findings and required him to explain in writing if he declined to add IOM identified conditions to the presumptive list.
Walz told colleagues at a hearing last week they effectively “allowed the Agent Orange Act to expire” and “it’s altogether possible” the next IOM report, due in March, will support adding hypertension and stroke to the presumptive list. Consequently, Walz said, “literally hundreds of thousands of people” will be able to point to scientific data showing they experienced health consequences from exposure to Agent Orange.
“And the pressure is going to be on,” he warned.
Turning to VA Secretary Bob McDonald, Walz advised that if Congress doesn’t “have the courage” to respond to the IOM findings, presumably with bigger VA budgets to cover the influx of claims, “they’re going to ask you. And much like the Nehmer claims, it’s going to add to your work.”
Walz was referring to a federal court ruling, Nehmer v. Department of Veterans Affairs, which forced VA the last time it added conditions to its presumptive list, including heart disease and Parkinson’s, to review all previously filed claims for these conditions and make payments retroactive to original claim dates, or the date of the 1985 Nehmer decision, whichever is later. The scope and cost of this requirement surprised then-VA Secretary Eric Shinseki, as he later conceded. It also exploded the VA claims backlog.
So McDonald told Walz he had made “a very good point.” Earlier in the hearing McDonald noted that disability claims backlog still stood at 611,000 in May of 2013, but that VA finally had reduced it below 75,000.
“If we add another pre-condition and we don’t get the people to do it, the 80-plus-percent progress we’ve made on the backlog will go away,” McDonald testified.
Walz sympathized, saying he might face a tough decision resulting in many new claims. McDonald said how Congress responds would be key.
“We prefer to do what’s right for the veteran, and then have you help us get the people we need for the job,” McDonald said.
No one interviewed was certain what the next IOM report will recommend. Regardless of those findings, or the Agent Orange law change, the secretary still will have authority to expand the list of presumptive conditions, said David R. McLenachen, VA deputy under secretary for disability assistance, in a phone interview Wednesday.
“It’s always good to have it straight in the law, set up clearly, what our authority is regarding the Agent Orange Act,” McLenachen said. That’s why VA didn’t want the provision to expire Oct. 1.
But the secretary still has general rulemaking authority that “allows us, even while these provisions are expired, to add presumptions,” he said.
Barton Stichman, joint executive director of the National Veterans Services Legal Program, a nonprofit group that fights for veterans’ benefits, said there is reason to be concerned that the secretary no longer is required by law to consider IOM findings on presumptive diseases, that whatever he decides doesn’t have to be explained, and he will have no deadline to decide.
From a practical standpoint, Stichman added, any secretary will feel pressured from veterans and support groups to act on IOM findings. But IOM did find “limited or suggested evidence of association” between hypertension and Agent Orange in 2006, and while other conditions with the same degree of association became presumptive, hypertension did not.
About 2.6 million veterans served in Vietnam. Most are still alive. Current law presumes that all of them have been exposed to Agent Orange. VA grants disability ratings of 10 to 60 percent for hypertension, depending on severity, and the Center for Disease Control says high blood pressure grows more common as any population ages.
So will this secretary, or future VA secretaries, feel at least as much pressure from Congress to hold down disability costs as VA budgets tighten as he does from advocates for Vietnam veterans?
The Congressional Budget Office apparently heard the same rumors as Walz about the next IOM report and hypertension. Walz wasn’t available to be interviewed but a member of his staff said costs were a committee consideration for not embracing his bill. In informal discussions, she said, CBO analysts had raised the specter of added costs “in the billions” if the secretarial review provision of the Agent Orange law didn’t expire.
Asked to comment, a House committee staff member said, “CBO has not released an official cost estimate, and we can't speculate regarding potential costs associated with a report [IOM] has not produced.”