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For many disabled veterans who were exposed to Agent-Orange, winning service connection for a disease not presumed to be caused by Agent Orange exposure seems like an impossible task. Often, these veterans call our veterans benefits law firm because they have various forms of cancer and other rare diseases that VA says are not known to come from Agent Orange exposure. And without professional guidance from a veterans disability lawyer, these veterans too often see their claims unfairly denied.
However, many of these cases can be won. Each case is different, and a carefully-crafted legal and medical strategy is needed to win these types of case. Our veterans benefits law firm recently had a case where we were able to win service connection for a veteran diagnosed with pancreatic cancer which is not on the VA list of diseases known to result from Agent Orange exposure.
In Agent Orange cases where the disease is not on the list, you need strong medical and scientific evidence to make your case. If you are trying to win service connection due to Agent Orange exposure for a disease not on the Agent Orange list, then you need to show that the unique features of your disease and how it manifests in your life compels the conclusion that the disease could only have come from exposure to a toxin like Agent Orange.
The veteran served in Vietnam and so his exposure to Agent Orange was presumed. But his combat exposure in Vietnam also resulted in the veteran’s delayed-onset PTSD for which VA granted service connection.
In August 2001 his blood sugar was found to be in excess of 300 mg/dL when the normal range is 100 – 14 mg/dL so the doctors diagnosed him with diabetes. About two weeks, later the veteran was diagnosed with obstructive jaundice and also at that time he was diagnosed with pancreatic cancer. Two weeks later, he died. The death certificate noted pancreatic cancer and pulmonary embolism as the cause of death.
The time from the veteran’s initial diagnosis of diabetes to his death was only 26 days. His widow filed a claim for service connection for the pancreatic cancer that caused his death. She argued two primary theories. First, she argued that the pancreatic cancer was due to Agent Orange exposure. Second, she argued that the pancreatic cancer was caused by the diabetes.
The VA denied her claim on both grounds. The VA asserted that pancreatic cancer was not shown to be caused by Agent Orange exposure, and it noted that there were no signs of pancreatic cancer in the service treatment records. Also, the VA medical examiners said that the diabetes did not cause the pancreatic cancer because the diagnosis of diabetes had existed for only two weeks prior to the pancreatic cancer. So, the VA denied the claim for pancreatic cancer.
Our client appealed the initial denial. She hired two prominent veterans disability lawyers to assist her, but the VA continued to deny the claim. To make a long story short, the claim was on appeal for about 14 years until we helped her win the claim for service connection for the cause of death.
After the first two lawyers struck out, the widow finally hired our veterans disability law firm to represent her in the appeal at the U.S. Court of Appeals for Veterans Claims. We were successful in getting the Board’s decision overturned and remanded back to the Board for review.
After the Court returned the case to the Board, we worked on developed new and additional evidence. We undertook further research. We discovered that in 1994 he had his blood sugar checked. The test showed a blood sugar of 166 with high cholesterol and triglycerides.
We then hired a medical expert who wrote an extensive opinion explaining that a blood sugar of 166 makes the case for a diagnosis of diabetes. We further addressed the scientific literature that discussed the average time a person has type 2 diabetes before it gets diagnosed.
The medical expert then explained that a diagnosis of pancreatic cancer 7 years or more after a diagnosis of diabetes usually means that the diabetes caused the cancer. On the other hand, a diagnosis of diabetes within 5 years before a diagnosis of pancreatic cancer is the other way around and usually means the cancer caused the diabetes.
In this case, the laboratory test showed that the veteran had diabetes, which went undiagnosed, for 7 years prior to the diagnosis of pancreatic cancer. Somehow, the blood tests showed a blood sugar of 166 but no one recognized it and officially diagnosed diabetes. Nevertheless, in hindsight, our medical expert was able to conclude that the blood sugar of 166 meant that he had diabetes 7 years prior to his pancreatic cancer diagnosis. Thus, based on the scientific literature, the diabetes–caused by Agent Orange exposure–caused this veteran’s pancreatic cancer, which, in turn, caused his death.
The Board of Veterans Appeals did not immediately fold and grant the claim. The Board referred the matter to a VHA examiner for another medical opinion. In other words, the VA was trying to get evidence against the claim.
Not surprisingly, the VA doctor returned an opinion against the claim. He argued that the blood sugar reading of 166 in 1994 doesn’t mean anything because there was no evidence that was a fasting blood sugar.
Not be outdone, we retained a second high-powered medical expert to refute the VA doctor. The expert noted that the blood sugar was done prior to 9 AM and along with a cholesterol and triglyceride test. The medical expert explained that these tests are meaningless if done without fasting. So, he reasoned that the 1994 blood test presumably was a fasting blood sugar test.
Based on this theory, the Board of Veterans Appeals granted service connection for the cause of death after 14 years on appeal. In the end, we prevailed. We established service connection for the cause of death for pancreatic cancer due to Agent Orange exposure–even though pancreatic cancer is not on the Agent Orange list.
This represents a case study in how the unique circumstances of a case can lead an experienced veterans disability lawyer to win service connection as a result of Agent Orange exposure for a disease not on the list of Agent Orange diseases. Admittedly, these cases can be complicated and expensive to prove. It cost our veterans disability law firm thousands of dollars in medical expert fees to win this case. But the result is worth it for this widow. She will receive a high 6-figure back pay check and a monthly compensation check going forward.
If you have been denied service connection for a rare disease that you believe is related to Agent Orange exposure, we urge you to consult with an experienced veterans benefits attorney right away.