VA grants CCK’s Rulemaking Petition for Thailand claims

During the Vietnam war, many servicemembers were stationed in Thailand. Like Vietnam veterans, some of these Thailand veterans were exposed to toxic herbicides like Agent Orange. Unlike Vietnam veterans, however, VA does not automatically presume that Thailand veterans were exposed to herbicides.

Though VA has acknowledged herbicide use in Thailand, their current policy on exposure-related disability claims from Thailand veterans is (1) not consistent with other VA herbicide policy; (2) is inconsistently applied by VA staff and (3) has not gone through formal rulemaking.

In August of 2015, CCK staff noticed some substantial changes to the Thailand policy in VA’s adjudication manual, the M21. Even though the changes significantly limited the number of sick Thailand veterans that would be eligible for benefits, the new policy was implemented with no notice and with no opportunity for objection. VA did not respond to our inquiries on the matter, so we decided to take things into our own hands.

CCK teamed up with Disabled American Veterans (DAV), a veterans’ service organization (VSO), to file suit against the VA in the United States Court of Appeals for the Federal Circuit. Realizing they were in hot water, VA quickly removed the changes to the Manual, reinstating the original policy.

But the problems with the original policy remained. And because the policy was not codified—i.e. was not part of official U.S. laws and regulations—no one could challenge the policy. So CCK took things a step further and filed what’s called a Petition for Rulemaking.

Two years later, VA responded, granting our request. But what exactly is a Petition for Rulemaking? How will it affect Thailand veterans and VA’s Thailand policy? In this post we’ll discuss VA’s current policy and the problems with its implementation, the process of federal rulemaking making and the Federal Register,  VA’s response, and what we can do going forward.

VA’s Thailand Policy & Why It Needs Fixing

VA’s current policy on Thailand exposure claims is often called the “perimeter policy.” That’s because the policy states that exposure will be granted if a veteran’s duties placed them “on or near” the perimeter of their base. As a rationale, VA cites the 1973 CHECO Report, which notes heavy use of herbicides to clear brush along the perimeters of US Air Force bases in Thailand. Though there is significant evidence that herbicides were used on the interiors of Thai bases as well.

The VA’s Thailand policy itself, as well as its implementation needs serious work, because the policy is inconsistently applied and fundamentally inconsistent with VA’s other herbicide policy.

Inconsistent Application

In the M21, three military occupational specialties (MOS) – security policeman, security patrol dog handler, and member of the security police squadron — are explicitly listed as having duties that would place a veteran “on or near” the perimeter of a base in Thailand. But the policy also states that exposure will be found if a veteran was “otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence[.]”

Unfortunately, implementation of the policy, particularly the last part, has been erratic at Regional Offices across the country and at the Board of Veterans’ Appeals (the Board). Many veterans are not granted exposure if their MOS was not one of the three specifically listed in the M21 even though they have evidence that is as credible as those whose claims are granted.

At the Regional Office level, implementation of VA’s Thailand policy is inconsistent to the point that it is almost nonexistent. Nearly all claims submitted by Thailand veterans exposed to herbicides are denied. And those veterans that aren’t denied initially often have their benefits terminated or revoked by VA. From our experience with Thailand claims, it appears that many raters do not even know that the Thailand policy exists. This is due to a lack of training on the Thailand policy and is further confused by communications from higher-level officials encouraging stricter interpretations of the policy.

Even at the Board of Veterans’ Appeals, decisions about similar Thailand cases vary widely. In one instance, the Board acknowledged the veteran was trained as security police augment and served as a perimeter guard, but then concluded that herbicides were not used in Thailand and therefore herbicide exposure could not be conceded.

Inconsistent with Other Herbicide Policy

After the Vietnam War, the Department of Defense kept very few records of herbicide spray missions and notes in several documents that base spraying was not considered a priority for archival, making individual evidence of herbicide exposure very difficult to find. This lack of evidence was part of the reason Congress voted to establish the Vietnam Agent Orange presumption—which presumes exposure for veterans who simply had “boots on the ground” in Vietnam.

Thailand veterans have the same challenges in finding individual evidence of herbicide exposure as Vietnam veterans and deserve the same benefit of the doubt. VA’s policy on herbicide exposure in Thailand is clearly inconsistent with its herbicide policy in general, giving the strong appearance that the policy is arbitrary and unjust.

What is a Petition for Rulemaking?

Under the Administrative Procedure Act (APA), federal agencies must give “interested persons the right to petition for the issuance, amendment, or repeal of a rule.” In other words, members of the public can submit–in this case to the Department of Veterans’ Affairs—a petition, or request, to create, change, or get rid of a rule.

If an agency grants a petition for rulemaking, the process generally goes as follows:

• The agency develops a proposed rule, or Notice of Proposed Rulemaking (NPRM), that serves as an official announcement and explanation of the agency’s plan to address the problem (in this case, the Thailand policy).
• The proposed rule must be published in the Federal Register to notify the public and give them an opportunity to submit comments. (We’ll make an announcement on the CCK blog when the proposed Thailand rule is opened up for comment.) At this stage, the agency may decide to publish a supplemental proposed rule—a second version of the first proposed rule, open to more comments–or even terminate the rulemaking. But if all goes well…
• Then, hopefully drawing on the public’s comments as well as the relevant scientific and historical evidence, the agency will come up with a final rule.
• The final rule is then officially added to the Code of Federal Regulations.

Why did CCK file a Petition for Rulemaking?

The current Thailand policy is not a formal rule as referred to above (rule, in this case, meaning federal regulation). Policy, usually set by higher-level officials, only holds authority within an agency. VA employees, for example, are expected to follow policy, but there is no legal foundation to it. A regulation, on the other hand, has the effect of law. Though regulations are issued by agencies themselves (rather than by Congress), they are enforceable and can be legally challenged.

Though we hope they will, VA rule-makers may not follow CCK’s or the public’s recommendations to create a more comprehensive, fair regulation for Thailand herbicide exposure claims. But, because the policy will become a codified regulation after the rulemaking process is complete, CCK will be able to challenge it in the Federal Circuit.

Stay tuned for more updates as the rulemaking process unfolds. The process may move slowly (as many VA systems do!) but CCK will be there to stand up for Thailand veterans at every step.