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CCK LIVE: The History of Agent Orange

The second episode in our Agent Orange Series is about the history of Agent Orange, before and after the Vietnam War. Our military exposure expert Kerry Baker sat down with CCK attorney Maura Clancy to discuss.

 

 

What Are Agent Orange and Herbicide Agents?

Agent Orange is one of multiple rainbow herbicides, and it was infamously used in the Vietnam War as a defoliant to destroy enemy crops and clear foliage to increase visibility to prevent attacks by the enemy.

However, Agent Orange was not the only herbicide used during the Vietnam War. The military used various “rainbow herbicides” which included Agent White, Agent Blue, and Agent Pink, among others. In their regulation regarding herbicide exposure, VA lists multiple herbicide agents considered as rainbow herbicides, such as cacodylic acid, picloram, along with 2,4-D and 2,4,5-T. Agent Blue contained cacodylic acid and arsenic, while Agent White was a mixture of picloram and 2,4-D. Agents Pink, Green, and Purple were made up of varying combinations of 2,4,5-T esters.

Agent Orange specifically is a 50/50 mixture of two kinds of herbicide agents: 2,4-D and 2,4,5-T. Agent Orange also contained a dioxin called TCDD, short for 2,3,7,8-Tetrachlorodibenzo-para-dioxin. TCDD was a contaminant in 2,4,5-T and is the most toxic of all the dioxins.

The term “Agent Orange” is frequently used to refer to the herbicides used during the Vietnam War, although Agent Orange itself was only one of multiple herbicides that were used.

 

Why Were Herbicides Used During the Vietnam War?

Herbicides were used in the Vietnam War for two main purposes: 1.) to destroy the enemy’s crops to interrupt their food supply, and 2.) to destroy foliage in the jungle and increase visibility to prevent ambush attacks.

Who Developed Agent Orange?

The two components of Agent Orange, 2,4-D and 2,4,5-T have been around since World War II. Near the end of World War II, there was discussion of using herbicides in a tactical environment. There was also discussion of using these herbicides during the Korean War.

When the Vietnam Era approached, the Army Chemical Corp began testing various combinations of herbicides at Fort Detrick. The Advance Research Projects Agency (ARPA), now known as the Defense Advance Research Projects Agency (DARPA), was heavily involved in research regarding herbicides.

Were Herbicides Tested in the United States?

Herbicides were tested in the United States prior to the Vietnam War as early as the 1950s, as well as in the early years of the Vietnam War. Herbicides were also tested in Thailand and Vietnam. Several U.S. bases were used to test herbicides including Fort Gordon, Puerto Rico, and Hawaii. Service members who tested these herbicides would have been exposed, putting them at risk of developing health problems.

 

Operation Ranch Hand and How Herbicides Were Sprayed

During the Vietnam War, herbicides including Agent Orange were sprayed in mainly four ways:

  1. C-123 aircraft were used to spray herbicides over the jungles of Vietnam during Operation Ranch Hand. These C-123 aircraft were modified with tanks to carry the herbicides.
  2. Helicopters were used to spray smaller areas.
  3. Buffalo turbines were used to spray roadsides and perimeters. Buffalo turbines are truck-mounted sprayers.
  4. Hand-held sprayers were also used as a method of spraying herbicides.

Operation Ranch Hand

Operation Ranch Hand was a U.S. military operation in which C-123 aircraft were used to spray herbicides over large swaths of jungle in Vietnam. The operation spanned from 1962 to 1971 and involved spraying millions of gallons of herbicides, most notably Agent Orange.

VA recognizes that service members who worked on C-123 aircraft were exposed to Agent Orange through contact with the residue on the aircraft used in Operation Ranch Hand.

 

Herbicides After the Vietnam War & VA Disability for Exposure

The U.S. military stopped spraying herbicides out of C-123 aircraft in Vietnam in approximately 1971. Although herbicides were no longer being used, there were still stores of the herbicide agents left over, including large stores in Vietnam and Gulf Port, Mississippi. Eventually, these stockpiles were moved to Johnston Island in the Pacific Ocean around 1974.

The herbicides remained on Johnston Island until approximately 1977. The herbicides, mainly Agent Orange, were then burned at sea. However, Agent Blue could not be burned at sea due to its high concentration of arsenic. Agent Blue was transported to Davis-Monthan Air Force Base where it was used to clear vegetation until the stores were used up.

Are There Records?

Following the Vietnam War, many veterans claimed that they were exposed to Agent Orange while they were stationed in Vietnam. However, records of spraying, especially hand spraying, were poorly kept, leaving veterans without evidence to show that they were exposed.

Veterans Dioxin and Radiation Exposure Compensation Standards Act of 1984

The Veterans Dioxin and Radiation Exposure Compensation Standards Act of 1984 was enacted to address VA’s lack of regulations regarding claims for service connection based on veterans’ exposure to dioxin during their service in Vietnam. The Act specifically addressed herbicides that contained dioxin, which not all of the herbicides used in Vietnam contained, but was a component of Agent Orange. The Act instructed VA to study the herbicides and create regulations as to who could receive benefits and for which diseases they could receive benefits. This was the first time Congress acted on legislation for herbicide exposure.

Nehmer v. Department of Veterans Affairs

In 1986, not long after the Veterans Dioxin and Radiation Exposure Compensation Standards Act was passed, a class action lawsuit was filed to challenge a VA regulation that stated that chloracne was the only disease that was scientifically linked to exposure to herbicides such as Agent Orange.

Part of the lawsuit Nehmer v. Department of Veterans Affairs included a claim that VA required a “cause and effect” relationship between a disease and Agent Orange exposure, when Congress intended VA to make its regulations based on a positive association between exposure and diseases. The Court agreed that VA was using too high of a standard, and it invalidated VA’s regulation and instructed VA to re-adjudicate any claims that had been denied under the now invalid regulation. The ruling is significant for veterans not only because more conditions were added to VA’s presumptive list, but also because it obligated VA to, when it adds a new condition to the list, identify all claims for that condition that were previously filed and/or denied, and re-adjudicate them. This can result in the veterans or their dependents being paid benefits retroactive to the date VA received the original denied claim.

 

The Agent Orange Act of 1991 and VA’s Herbicide Regulations

Congress enacted the Agent Orange Act of 1991 which included many elements of the Nehmer case, and was also meant to ease the burden on Vietnam veterans when it came to proving that their conditions were caused by their exposure to herbicides during their service in Vietnam. The Act required VA to contract with the Institute of Medicine (IOM) every two years to determine if there was existing research that showed associations between herbicides and certain diseases. When IOM would release its reports, it would classify diseases in different categories by levels of association. Based on these classifications, VA would add diseases to its presumptive list.

VA’s Presumption of Exposure & Presumption of Service Connection

The Act required VA to create a presumption of exposure which states that VA will presume that veterans who served in the Republic of Vietnam during the war were exposed to Agent Orange. However, this presumption only includes veterans who served “boots-on-the-ground” and those who were stationed aboard ships that navigated the inland waterways of Vietnam, called Brown Water veterans.

In addition to the presumption of exposure, the Agent Orange Act established presumptions for certain disabilities as related to herbicide exposure. This led to VA’s creation of a presumption of service connection. The presumption of service connection removes the requirement that veterans provide a medical nexus linking their condition to their military service. Instead, if a veteran served in Vietnam between January 1, 1962 and May 7, 1975 and has a disease or condition associated with herbicide exposure, VA will presume that the veteran’s in-service exposure to herbicides caused his or her condition.

Blue Water Navy Veterans and Thailand Veterans Left Out of Presumptions

While the Agent Orange Act of 1991 and VA’s regulations aided the process for claims for disability compensation of veterans who served boots-on-the-ground in Vietnam, it excluded veterans who served in the Navy off the coast of Vietnam, called Blue Water, and veterans who served in Thailand during the Vietnam War. These claims are decided on a case-by-case basis by VA.

At this time, a bill that would extend presumptions to Blue Water Navy Veterans is being considered by Congress. For updates on Blue Water Navy Legislation, click here.

We have also been following a Federal Circuit case called Procopio that could result in benefits for Blue Water Navy veterans. Read about Procopio here.

 

Agent Orange Presumption Should Be Applied to Burn Pit Exposure

Studies have revealed that TCDD, a dioxin and active ingredient in Agent Orange, has been found in air samples from emissions of military burn pits in Iraq and Afghanistan. In its regulation, VA includes TCDD as one of the herbicide agents that is related to developing certain harmful conditions and diseases. In an article written for GPSOLO magazine, CCK Founding Partner Robert Chisholm argues that veterans and advocates should apply the Vietnam-era presumptions regarding herbicide exposure to Iraq and Afghanistan environmental exposures.

Category: Veterans Law

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