I 

111TH CONGRESS 

1ST SESSION H. R. 3491 

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. 

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 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Thomas G. Schubert 

5 Agent Orange Fairness Act’’. 

6 SEC. 2. FINDINGS. 

7 Congress makes the following findings: 


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1 (1) Between 1962 and 1971, the Armed Forces 

2 sprayed approximately 107 million pounds of herbi3 cides in South Vietnam for the purpose of defolia4 tion and crop destruction. 

5 (2) Section 1116(a)(3) of title 38, United 

6 States Code, defines the term ‘‘herbicide agent’’ as 

7 a chemical in an herbicide used in support of the 

8 United States and allied military operations in the 

9 Republic of Vietnam during the period beginning on 

10 January 9, 1962, and ending on May 7, 1975. 

11 (3) It has been incontrovertibly established that 

12 exposure to Agent Orange leads to long-term, sys13 temic health problems that can occur years after the 

14 exposure. 

15 (4) The amendments to title 38, United States 

16 Code, enacted by the Veterans’ Health Care Eligi17 bility Reform Act of 1996 (Public Law 104–262) 

18 provide that a veteran does not have to demonstrate 

19 a link between a certain health condition and expo20 sure to Agent Orange and other toxic substances 

21 used during the Vietnam War in order to receive 

22 certain medical care provided by the Secretary of 

23 Veterans Affairs. 

24 (5) Section 1116 of title 38, United States 

25 Code, provides for a presumption of service conVerDate Nov 24 2008 23:40 Aug 04, 2009 Jkt 079200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3491.IH H3491

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1 nected disability when there is exposure to an herbi2 cide agent and the occurrence of a disease if the 

3 credible evidence for such association is equal to or 

4 outweighs the credible evidence against the associa5 tion. 

6 (6) The Veterans’ Health Care Eligibility Re7 form Act of 1996 (Public Law 104–262) recognizes 

8 the Institute of Medicine as a resource by which the 

9 Secretary of Veterans Affairs should determine the 

10 association between the occurrence of a disease and 

11 Agent Orange. 

12 (7) One established standard for the Secretary 

13 of Veterans Affairs to deny a presumption of service 

14 connection for a disability is that a disease shall be 

15 established by the Institute of Medicine to have lim16 ited or suggestive evidence of no association between 

17 the occurrence of the disease and exposure to herbi18 cide. 

19 (8) Cancers of the gastrointestinal tract are 

20 recognized by the Institute of Medicine as having in21 adequate or insufficient evidence to determine asso22 ciation, which suggests that the credible evidence of 

23 an association is equal to the credible evidence 

24 against association. 


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1 (9) Thomas George Schubert served honorably 

2 in the Army in the Republic of Vietnam from 1966 

3 to 1967 where it is presumed he was exposed to 

4 Agent Orange. 

5 (10) He later developed esophageal cancer and 

6 passed away as a result on August 29, 2002, his 

7 56th birthday. 

8 (11) Thirty-five years after his discharge, the 

9 Department of Veterans Affairs issued a ruling that 

10 Mr. Schubert’s death was service connected, stating, 

11 ‘‘The preponderance of the competent evidence re12 lates the victim’s cause of death, esophageal cancer, 

13 to in-service Agent Orange exposure,’’ and ‘‘Resolv14 ing any reasonable doubt in the appellants favor, 

15 that his death is directly related to in-service expo16 sure to Agent Orange.’’. 

17 SEC. 3. PRESUMPTION OF SERVICE CONNECTION FOR CER18 TAIN CANCERS ASSOCIATED WITH EXPOSURE 

19 TO HERBICIDES DURING THE VIETNAM ERA. 

20 Section 1116(a)(2) of title 38, United States Code, 

21 is amended by adding at the end the following new sub22 paragraph: 

23 ‘‘(I) Cancers of any tissues through the opening 

24 of the gastrointestinal tract to the end, including 

25 any and all carcinomas arising from tissues of 


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1 endodermal origin, beginning in the oral pharynx, 

2 extending through the esophagus, duodenum, cecum, 

3 transverse and descending colon, as well as biliary 

4 and pancreatic tissues, not to exclude the rectum, 

5 becoming manifest to a degree of disability of 10 

6 percent or more.’’. 

Æ 


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