I 111th CONGRESS 1st Session H. R. 3491 IN THE HOUSE OF REPRESENTATIVES July 31, 2009 Mr. Kagen (for himself and Mr. Frank of Massachusetts) introduced the following bill; which was referred to the Committee on Veterans’ Affairs A BILL To amend title 38, United States Code, to establish a presumption of service connection for certain cancers occurring in veterans who served in the Republic of Vietnam and were exposed to certain herbicide agents, and for other purposes.

1.

Short title

This Act may be cited as the Thomas G. Schubert Agent Orange Fairness Act.

2.

Findings

Congress makes the following findings: (1)Between 1962 and 1971, the Armed Forces sprayed approximately 107 million pounds of herbicides in South Vietnam for the purpose of defoliation and crop destruction. (2)Section 1116(a)(3) of title 38, United States Code, defines the term herbicide agent as a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. (3)It has been incontrovertibly established that exposure to Agent Orange leads to long-term, systemic health problems that can occur years after the exposure. (4)The amendments to title 38, United States Code, enacted by the Veterans’ Health Care Eligibility Reform Act of 1996 (Public Law 104–262) provide that a veteran does not have to demonstrate a link between a certain health condition and exposure to Agent Orange and other toxic substances used during the Vietnam War in order to receive certain medical care provided by the Secretary of Veterans Affairs. (5)Section 1116 of title 38, United States Code, provides for a presumption of service connected disability when there is exposure to an herbicide agent and the occurrence of a disease if the credible evidence for such association is equal to or outweighs the credible evidence against the association. (6)The Veterans’ Health Care Eligibility Reform Act of 1996 (Public Law 104–262) recognizes the Institute of Medicine as a resource by which the Secretary of Veterans Affairs should determine the association between the occurrence of a disease and Agent Orange. (7)One established standard for the Secretary of Veterans Affairs to deny a presumption of service connection for a disability is that a disease shall be established by the Institute of Medicine to have limited or suggestive evidence of no association between the occurrence of the disease and exposure to herbicide. (8)Cancers of the gastrointestinal tract are recognized by the Institute of Medicine as having inadequate or insufficient evidence to determine association, which suggests that the credible evidence of an association is equal to the credible evidence against association. (9)Thomas George Schubert served honorably in the Army in the Republic of Vietnam from 1966 to 1967 where it is presumed he was exposed to Agent Orange. (10)He later developed esophageal cancer and passed away as a result on August 29, 2002, his 56th birthday. (11)Thirty-five years after his discharge, the Department of Veterans Affairs issued a ruling that Mr. Schubert’s death was service connected, stating, The preponderance of the competent evidence relates the victim’s cause of death, esophageal cancer, to in-service Agent Orange exposure, and Resolving any reasonable doubt in the appellants favor, that his death is directly related to in-service exposure to Agent Orange..

3.

Presumption of service connection for certain cancers associated with exposure to herbicides during the Vietnam Era

Section 1116(a)(2) of title 38, United States Code, is amended by adding at the end the following new subparagraph: (I)Cancers of any tissues through the opening of the gastrointestinal tract to the end, including any and all carcinomas arising from tissues of endodermal origin, beginning in the oral pharynx, extending through the esophagus, duodenum, cecum, transverse and descending colon, as well as biliary and pancreatic tissues, not to exclude the rectum, becoming manifest to a degree of disability of 10 percent or more. .