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The Exceptions: A Rare Few Score Agent Orange Benefits for Bladder Cancer

While most vets’ claims for benefits are denied, some have figured out a way to win.

It’s rare, but sick Vietnam War veterans occasionally wring disability benefits from the government even if their illnesses aren’t among those recognized by the Department of Veterans Affairs as being caused by Agent Orange.

In 2013, Yale Law School professor Michael Wishnie led a group of law students who persuaded a veterans appeals board in Philadelphia to grant disability benefits to Daniel Dewey. The 72-year-old Vietnam War veteran had spent a decade fighting to get the VA to pay for his bladder cancer, which researchers have said might be caused by Agent Orange but isn’t on the list of illnesses the agency automatically covers.

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The key, Wishnie said, was finding doctors willing to cite studies linking Agent Orange to the cancer, and then helping those doctors translate their conclusions into terms recognized by the VA. Dewey got a boost from a Yale legal scholar and a renowned bladder cancer expert who personally examined him and wrote in support of his appeal.

“What I did is tough for most guys to do,” said Dewey, a former Marine who endured seven surgeries before doctors finally determined his bladder needed to be removed. “I got one of the finest experts in the world, and it was still a long, hard battle.”

Reporters for ProPublica and The Virginian-Pilot examined every case over the past eight years in which a Vietnam veteran appealed to the VA after being denied compensation for bladder cancer. Of the 157 appeals reviewed, only 12 vets were awarded compensation.

The vast majority were denied outright by the Board of Veterans’ Appeals. About 50 cases were sent back to a VA regional office because the agency had failed to perform a required medical examination before denying the claim.

“Most people lose, but a few people can win,” Wishnie said. “If you have enough lawyers, doctors and evidence — and if the veteran is driven and determined to fight.”

Veterans must convince the VA that Agent Orange “as likely as not” caused an illness, as opposed to genetics or some other environmental factor. Scientific studies on their own, detached from the veteran’s specific diagnosis and health history, do not count for much during a VA benefits review.

It’s not always clear why some Agent Orange claims are accepted and others denied.

Like Dewey, some veterans have won appeals by presenting several supportive doctor opinions. Others have succeeded by arguing their illness was caused by a combination of Agent Orange and diesel fuel exposure during their service. A vet in Oakland, California, won despite the fact he’d been smoking more than a pack of cigarettes a day for 40 years (smoking is the top cause of bladder cancer).

Yet numerous veterans who have used similar approaches have had their appeals denied.

The fact that so many vets have to appeal in the first place is part of the problem, said Matthew Hill, a veterans lawyer in Florida. At least some Agent Orange benefits should be awarded when veterans first file claims, he said, especially if they present supportive medical opinions.

“It is extremely frustrating,” Hill said. “I’ve never won a case like that at the regional office. They reject it every time.”

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