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Agent Orange in Thailand

AGENT ORANGE IN THE VIETNAM ERA (Overview)

  • What is Agent Orange? What is an “herbicide agent” according to VA?
  • Why and how were herbicides used in Vietnam?
  • What is the Agent Orange presumption and why does it exist?
  • Which veterans are covered by the presumption?
  • Conditions Presumptively Associated with Agent Orange Exposure

VIETNAM-ERA THAILAND VETERANS

  • Why aren’t Thailand veterans covered by the Agent Orange presumption?
  • Does VA recognize that herbicides were used in Thailand? How were they used?
  • VA’s Thailand Base Perimeter Policy and the CHECO Report
  • Which Thailand bases were contaminated?
  • Operation RANCH HAND and C-123s in Thailand
  • “Tactical” vs. “Commercial” Herbicides
  • Does VA have legal authority to make this distinction?
  • What counts as being “on or near” the base perimeter? Does your MOS matter?
  • What is the herbicide “drift zone”?
  • Evidence for Thailand Cases beyond your MOS
  • What will NOT qualify as exposure in Thailand
  • CCK’s Petition for Rulemaking on Thailand Claims

READ THE THAILAND REPORT HERE

 

VIDEO TRANSCRIPTION

Maura: Good afternoon, everyone. Welcome to today’s Facebook live discussion. This is Maura Clancy here at Chisholm Chisholm & Kilpatrick. And I’m here today with Kerry Baker also of Chisholm Chisholm & Kilpatrick. We’re excited about today’s topic. Today, we’re going to be talking about Agent Orange in Thailand. So we do have a lot material that we want to get through today. Please do feel free to leave questions in the comment section on Facebook. We’ll do our best to get to as many of them as we can. We will also be sure to respond to questions as well with any helpful materials that we have on our blog. So if we think that a blog post might answer your question, we’ll be sure to post it there for you so that all of those resources will be available. As I said, we do have a good amount to get through today. I think we’re just going to get started. Kerry, I wanted to ask you a couple of general questions just to sort of kick us off and get everybody on the same page about the fundamentals of what we’re talking about today. So, as I said, we’re talking about Agent Orange in Thailand. So I think we should start by explaining what Agent Orange is and how it was used during the Vietnam era just sort of generally.

Kerry: First, I want to kind of clarify, most people talk about Agent Orange as this is the stuff that was used. Agent Orange itself is not in VA’s regulations. It’s not in the statutes. They call it a herbicide agent. And that’s appropriate because there’s no one substance that qualifies as a herbicide agent. There’s multiple substances. One of them is Agent Orange. Agent Orange is made up of two different herbicides. It’s 2,4-D and 2,4,5-T. Those are combined in equal parts to make Agent Orange. They’re the n-Butyl esters of 2,4-D and the n-Butyl esters of 2,4,5-T. But if you look in VA’s regulations at 3.307, if anybody wants to look that up in Title 38, it defines a herbicide agent as 2,4-D or 2,4,5-T to include its contaminant which is TCDD or dioxin, cacodylic acid or picloram, and to kind of put that in perspective a little bit. Like I just said, 2,4-D and 2,4,5-T were Agent Orange. 2,4,5-T in Agent Orange was contaminated with dioxin, a specific one, TCDD. There are numerous dioxins. Cacodylic acid is Agent Blue and picloram was Agent White.

Maura: So essentially, just so that we all understand because there’s a lot of terminology going around but I think this is important. When we talk about Agent Orange, we’re talking about one example of an agent that VA’s regulation and the statute recognizes as constituting an herbicide agent.

Kerry: Right. Agent Orange, it was the one that was used the most in Vietnam for the longest period but it’s by far not the only one. So like when we do pleadings, when we write arguments and stuff for veterans, we claim exposure to herbicide agents. Not per se Agent Orange. Simply because we don’t want to limit it to one specific agent since there’s more than one.

Maura: I think that makes sense. These were obviously used during the Vietnam era, these herbicides. We’ll call them Agent Orange today. I think just to be clear about the language. But why and how were they used during the Vietnam era?

Kerry: If I can back up a little bit on the individual agents as far as what was used in Vietnam and the reason– the law says herbicide agents and refers to those particular ones is that all of them that were used in Vietnam were made up of one form or another of those specific ones in the regulation. So, you’ve got Agent Orange, obviously. You’ve got Agent White. You’ve got Agent Blue. But you’ve also got Agent Green, Pink and Purple. Most people don’t hear about those but those three were used early in Vietnam and were all different formulations of 2,4,5-T or 2,4-D. Even when you look outside the normal Agent Orange, Blue and White, you’ve got other ones that are still made from those agents.

Maura: Sure.

Kerry: So to get to your question– well, why don’t you ask it again in case-

Maura: Sure. As we were just talking about the different types of herbicide agents, again, we’re still reiterating that Agent Orange, what we’re talking about today, is what VA has recognized as an herbicide agent used and so, why and how were these herbicides used in the Vietnam era?

Kerry: Okay so they were used because– we are talking about a sub-tropical environment, heavy foliage. It gave the enemy cover to ambush our troops. The herbicides were used to clear off the vegetation to remove enemy cover to hopefully save lives when it comes to talking about our troops. Then, other ways they were used, majority of the time they were sprayed out of C-123 aircraft, sometimes they were sprayed from Huey’s helicopters. Sometimes they were sprayed from truck mounted tanks called Buffalo Turbans, and sometimes they were sprayed by hand.

Maura: So, given the fact that use of these herbicides was so wide-spread to do the things that you’re talking about. So, they’re sprayed from aircraft, they’re sprayed from trucks, specifically to get rid of vegetation in a very big area. Can you explain what the Agent Orange presumption is, and sort of how the use of Agent Orange lends itself to the presumption that the law recognizes?

Kerry: Sure. After the Vietnam war, for years VA and Congress and veterans went back and forth in trying to figure out who was exposed to herbicides in Vietnam, how much they were exposed to the herbicides, who was not exposed, and after years of getting nowhere with it, they finally come to the conclusion that well they just couldn’t determine who was exposed and who was not exposed. Congress eventually got tired of the whole thing and created a presumption of exposure which gave all Vietnam vets the benefit of the doubt that they were exposed. That’s how you got the presumption of exposure. That’s not the same as presumption of service connection but the first step is getting VA to concede the exposure. That’s why today, if you were on ground in Vietnam to include the rivers, the brown water folks, then you’re presumed exposed to herbicides because the government just couldn’t determine one way or the other who was and was not exposed.

Maura: So if the government can’t get records to corroborate or if there aren’t enough records available to do a case-by-case assessment, they’re basically, as you said before, giving these veterans the benefit of the doubt and saying, we recognize the limitation of our record-keeping systems or whatever the case may be, and so, we’re going to establish this presumption of exposure, not service connection.

Kerry: Right. It’s a legal presumption that you were there, you were exposed.

Maura: Which veterans are covered by the presumption?

Kerry: All veterans who served in country in Vietnam are covered. Brown Water Veterans, in other words veterans who were on ships that sailed up the rivers, they’re also covered if you were– what everybody refers to as a Blue Water veteran, you can be covered if you went ashore. The point is, the boots on the ground theory is get yourself one way or the other on ground. That includes the Brown Water. So when I say on ground, I mean Brown Water as well because you really can’t separate the rivers in Vietnam from the ground.

Maura: Okay. So the presumption of exposure is linked to or exposure itself is linked to various illnesses, and this is how the presumption is helpful and how it comes into play in terms of Veterans that are claiming service connection or claiming that their disabilities are due to their service. What are some of the illnesses that are covered by the presumption? So in other words, what are some of the conditions that VA recognizes? If you’ve been presumed exposed, then we can also presume that if service connection is warranted that your current disability stems from your exposure.

Kerry: Well, if I may kind of talk about it just a little about how we got to the presumption as far as the service connection goes. So along with the Agent Orange Act which established the legal presumption of exposure we just talked about, it also established a presumption of service connection for certain conditions. So if you look at the statute 1116 in Title 38, you will see certain conditions listed in the statute. Now VA, in the regulation at 3.309(e), also in Title 38, will have a lot more disabilities listed there than what you’ll see in the statute. Basically, Congress came out and said certain conditions are going to be presumptive because we’re adding them. Then it told VA to go out and contract with the Institute of Medicine and add in the future any other additional disabilities that VA finds out as associated with a herbicide. The standard that they use is a positive association, and that’s a relatively lax standard. It basically means there’s as much evidence for as against an association between a disease in the herbicide. So that’s kind of– in a nutshell, how we got to all the list of disabilities now. And to your question, lots of various cancers, like all of the airway cancer, larynx, trachea, lung, prostate cancer, leukemia, Parkinson’s disease, diabetes, ischemic heart disease, there’s a whole list of soft tissues sarcomas, a lot of them more quite rare that are also on the list. I’m sure I didn’t name every single one of them but those are the big ones.

Maura: Okay. Anything else that you see commonly in Vietnam vets besides the cancers? There’s a long list probably.

Kerry: Yes, there’s a long list. I mean, Parkinson’s disease obviously will lead to a lot of other various disabilities. They’re looking at a few more cancers. They were looking at potentially bladder cancer down the road, Parkinson syndromes. IOM in this last report explained how it meant for Parkinson’s disease that had previously established to also include Parkinson syndromes. Now VA has not added that specifically to the regulations yet but my guess is that they will, and that’s just a guess.

Maura: We’re going to pause and take a question. We have a question from Carol. If it is presumed, then why did they deny and say you haven’t proved your illness was caused by Agent Orange? How can they do that?

Kerry: All right. So, that question leaves a lot of what ifs. First, I would ask– we’re talking about two different presumptions; one’s a presumption of exposure, one’s a presumption of service connection for a disability related to that exposure. This is all before we get into Thailand. So, one, why did they deny it? Did they deny it because you weren’t in Vietnam? Therefore, you weren’t exposed. Or did they deny it because it was not a condition listed as a presumptive disability related to the herbicides? It really comes down to the facts. If you’re in Vietnam and they could see the exposure, then that’s one hurdle obviously out of the way. The next question would be, what disease did they deny service connection for? I mean, if it’s something like it’s clearly on the list, ischemic heart disease, diabetes, prostate cancer, B-cell leukemias, Parkinson’s, something like that, well then they shouldn’t have denied it, sounds like to me. But now, sometimes there’s a question of– we see this all the time, there’s a question of take any disease, ischemic heart disease, somebody may have a heart disability. It might not be ischemic heart disease, so therefore, they might deny it as not specifically ischemic heart disease.

Maura: Right. So, there’s a lot of variables I think at play there. Hopefully, that was helpful in terms of the difference between the presumption of exposure but then also the illnesses that link to that exposure. Because either of those fronts, I think, could possibly be one of the reasons why they’re not finding that the presumption works in your favor. You had said before, this is all a precursor to the Thailand topic that we really wanted to get to. So, hopefully, we’ve laid a good amount of the groundwork. As we sort of shift to the Thailand discussion, the Thailand veterans are not included in the presumption of exposure. Is that right?

Kerry: That’s correct.

Maura: And so, Agent Orange was used in Thailand, though?

Kerry: It was. Our purposes– I’m referring to it as herbicides were used in Thailand, but to be generic, we’ll say Agent Orange was used in Thailand.

Maura: And so why is there no presumption that works in favor of Thailand veterans, if they were in fact exposed to herbicide agents just as Vietnam vets were?

Kerry: Okay so first up, we got to back to the beginning of the law. I mean, if you really you want to answer that question, the statute is for Vietnam veterans. And I say statute, that’s the law that Congress passes, regulations are rules that VA writes down steam of the statute. So there’s no statutory authority right now for VA to add Thailand under the Agent Orange Act. Now it doesn’t mean they couldn’t add it anyway, but they’re not mandated to do that. So there’s no statutory presumption that herbicides were used in Thailand and therefore, no statutory presumption that everyone was exposed in Thailand.

The evidence that has established the entire Thailand policy came long after the rules that established for presumption for Agent Orange in Vietnam.

Maura: When you say the rules that have established or the evidence that’s established the Thailand policy, just as a first step, does VA recognize that herbicides were used in Thailand?

Kerry: Right now, they do recognize that herbicides were used in Thailand.

Maura: Were they used for similar purposes as they were in Vietnam?

Kerry: Yes. They were used mainly to clear off the perimeter areas of the Thailand bases because they were getting attacked by various guerrilla forces. You asked me earlier why not the presumption in addition to the legal pitfalls, what VA knows about the herbicide use in Thailand is, according to VA– I might have different personal opinions, is that it’s limited to on and near the perimeter of the Thailand bases. In other words, not in the center of the Thailand bases where everybody was– where all the– as you can say, the office buildings might have been, but strictly to the perimeter of the bases.

Maura: So VA essentially, sounds like what you’re saying, acknowledges that herbicides were used in Thailand but only at the perimeter. What evidence are they relying on or what sort of authority are they using to say that that was the extent of herbicide use?

Kerry: This all started a number of years ago when VA realized there was a report called a CHECO report. Now, there’s more than one CHECO report. I couldn’t tell you the names of them all but there was one that dealt with perimeter security on Thailand bases during the Vietnam War. The report wasn’t about herbicide exposure or herbicide use on Thailand per se. The report was about the perimeters of Thailand bases getting attacked. In the report, it documented a herbicide use on the perimeters in order to clear off fields of fire, things like that, so that in the hopes of preventing attacks on the perimeter. So that is where people discovered that, yes, herbicides were used in Thailand. The report didn’t say what kind of herbicides but everybody assumed at that point it’s probably some from Vietnam.

Maura: Okay. We have a question that actually I think is leading us into something else that we wanted to touch on. So this might be a good time to address it. We have a question from Janet. Thank you, Janet for your question. The question is, was Agent Orange used at U-Tapao in Thailand? So U-Tapao being one of the bases. I’m not sure if I’m pronouncing that right.

Kerry: Bout as good as I could do.

Maura: So, that question, that particular base, and then any other bases, maybe that for a frame of reference.

Kerry: Yes. So, when we’re talking about Thailand and herbicides on the perimeter and around the perimeters of Thailand bases, obviously, there’s lots of bases or were in Thailand during the Vietnam War. U-Tapao is one of them where herbicides were used around the perimeters. All right. VA has a created a list. I don’t know that I can list the entire thing from memory but I can tell you U-Tapao is one of them. A lot of other– the major Royal Thai Air Force Bases, U-Tapao being one of them are on the list. Army bases are on the list but not listed per base, okay. So Army bases are listed sort of generically, which can be beneficial or detrimentary in a claim.

Maura: Sure. There’s this operation that there is some connection with Thailand. It’s Operation Ranch Hand. And so we think that there’s some information about Operation Ranch Hand that’s helpful to understanding the presence of herbicides in Thailand. Can you talk a little bit about what that is and why that’s pertinent?

Kerry: So Ranch Hand was essentially the C-123 units spraying the herbicides in Vietnam. Their call time was Ranch Hand. I don’t know exactly the number of C-123 they used. It was quite a few. When everybody or anybody refers to Ranch Hand, they’re referring to the Air Force operation of C-123s to spray herbicides. Now, it’s relation to Thailand, and if you listen to VA very much, they’ll tell you there are no Ranch Hand planes in Thailand. That’s not true. Ranch Hand planes did fly into Thailand quite often one it’s because it was not far away from Vietnam, whatsoever. You had multiple Air Force Bases there. They could service the aircraft. They can refuel the aircraft. And also, a lot of the flights into Laos. We sprayed herbicides in Laos, as well. A lot of those missions were flown out of the bases in Thailand. In order to do that, they had to have the herbicides there on hand to do that. And there are records out there that show the military did deliver herbicides, including Agent Orange, Agent Blue, at the very least those two, to bases in Thailand. To the extent that VA will claim, well, this stuff was not really in Thailand. We’ve got hard evidence to show it absolutely was in Thailand.

Maura: Because we know about the deliveries that were made. You know, I think that we can also track the amounts to an extent. So if these deliveries of herbicides are being dropped off there and they’re not leaving, sort of the implication as they were there to be used.

Kerry: Right. So the example I think you’re referring to is one piece of evidence we have shows that 28,000 gallons, which is about 510 barrels or so, were flown from Phuket, and if I’m mispronouncing that, I apologize. But Phuket, Vietnam, into one of the bases in Thailand. That was for missions into Laos. But simple math, the records show that as of then, the remaining missions into Laos used about 7,000 gallons of herbicide. So that meant 21,000 gallons were left over. There are no records that we’ve ever found that shows that those herbicides were ever taken back to Vietnam. It just goes to show that what happened to those herbicides. The records weren’t there to show they were taken back to Vietnam and we know herbicides were used around the perimeters, and likely elsewhere on Thailand. That’s certainly far too much herbicide for one base. It doesn’t take a genius to put two-and-two together. Kind of the conclusion that all these claims that veterans make are entirely legitimate.

Maura: Okay. Another thing, just while we’re talking about how there are sort of no records to fill in the gaps. Another thing that we see a lot is this distinction that VA makes between the type of herbicides.

Kerry: Yes.

Maura: When it comes to Thailand, they often distinguish between tactical herbicides and commercial herbicides. So can you talk a little bit about what that distinction is, maybe what it’s based on?

Kerry: All right. So that distinction—and it’s used for more than just Thailand. Just for references out there. They use that distinction a lot to deny claims, and in lots of places other than Vietnam or say, the Korean DMZ. So the distinction between tactical and commercial herbicide, for my research, it really originated in the lawsuits after Vietnam against the chemical manufacturers. It was one of the, I guess, mechanisms if you will, that they defended themselves with. And that’s not important for the topic here. But that kind of mindset that looked towards what type of herbicide are we really talking about has been carried forward by some of those same people into the present day. They’ve been doing this for a couple of decades now, where any time they referred to a herbicide used in Vietnam, like Agent Orange, they will say, well that’s a tactical herbicide. They were doing this a lot with Thailand claims initially. They would say, well we have to deny this claim because those are commercial herbicides used in Thailand. The problem, first, is they don’t know what kind of herbicides per se were used in Thailand, except we have evidence that we just discussed, the same herbicides from Vietnam were sent to Thailand. But they look at a tactical herbicide as limited to Agent Orange, or I suppose Agent Blue or Agent White, the herbicides used out of the C-123s and the helicopters in Vietnam. The problem with that theory is– simply because you use a herbicide in a tactical environment does not make it a tactical herbicide. But that’s what VA does. So we discussed earlier what is a herbicide agent? And this is why getting back to the kind of context of what a herbicide agent is is so important. A herbicide agent is 2,4-D or 2,4,5-T, its contaminant TCDD, cacodylic acid or picloram. Now, all of those made up the herbicides used in Vietnam. But those were also common herbicides used all over the country by the military and lots of other folks back in that time frame. So 2,4,5-T, for example, the infamous herbicide that had the dioxin exposure or the dioxin contaminant, that herbicide was sold “commercially,” I suppose, if you want to say it that way, on the open market but it was also sold in the Federal Supply System to other military bases. So, if you took that herbicide and that herbicide only, you couldn’t say you had Agent Orange. But what you do have is one of the components that made up of Agent Orange, that made up Agent Orange and you have the one that happened to have been contaminated with dioxin. So when I say the same, it’s the same herbicide. They are multiple esters and we want to get technical about it. 2,4,5-T is 2,4,5-T. Dioxin is dioxin. And to say it was used in Vietnam and that changes its chemical structure somehow is just quite foolish.

Maura: So there really is no difference. So simply because the same chemical that we’re talking about was sold in a certain way or used for one purpose and not another. What you’re saying is, it doesn’t change the makeup of the substance itself.

Kerry: It does not at all.

Maura: And so this distinction is more about factors that really don’t get to the heart of what’s going on, which is this is the same agent.

Kerry: It’s the exact same agent and what it really gets to is mechanisms that VA uses to deny claims by saying that you weren’t exposed to a tactical herbicide, when in fact, the law never refers to any of these as tactical or commercial herbicide or even Agent Orange.

Maura: Does VA have any authority or any of their own guidelines that they cite in making this distinction?

Kerry: They don’t have any of their own regulatory authority or statutory authority to do that. And just the opposite. I would say the regulation is quite clear. The regulation refers to the chemicals in the herbicide as the culprit causing the diseases, not where it was used. So they don’t have any– they’re kind of on their own—I’m trying to figure out how to say that– they’re kind of on their own farm, if you will, when they make these distinctions.

Maura: Sure.

Kerry: Now they have reasons that they’ll claim to make the distinctions because– but when it comes to looking at the regulations, looking at the law, it doesn’t exist in there.

Maura: And so another distinction– if I can change the subject just a little bit– but another distinction that VA makes that we’ve talked about a little bit before is about the perimeter of the bases in Thailand versus the remainder of the base. So we talked a little bit before about how when it comes to Agent Orange in Thailand, VA has what we call the perimeter policy. And as we talked about, they’re saying that the herbicide agents were used around the perimeter of the bases, so they recognize that. What counts as being on the perimeter? So, practically, what do you need to do to show that you were exposed if VA is saying that the herbicide was only used at the perimeter of the base?

Kerry: All right. Well that question has a few different answers. So per VA’s policy in their manual, if you were a security guard or a patrol dog handler, then they concede– it’s not a presumption– but they factually concede that you were on the perimeter because that’s where those particular folks worked a lot while they were on duty. So, because the original CHECO reports refer to within the perimeter, near the perimeter, there’s always some reference to the perimeter. One can almost read it to be within the perimeter of the base or at the perimeter of the base. And it really doesn’t distinguish. But VA’s policy is on or near the perimeter. And they give examples of folks that are on the perimeter as those security police folks, dog handlers, you know, guard duty, essentially. So if that was your MOS, then they concede that you were on the perimeter. But their internal rules don’t stop there. The internal rules also consider if you were otherwise near the perimeter– and these are important words– otherwise near the perimeter as shown by credible evidence or other credible evidence. That can be official records, that can be lay evidence. So essentially, I mean just to answer your question in a short form is you have to put yourself near the perimeter. That is not defined what is near the perimeter.

Maura: Right.

Kerry: And I know you have other questions about that.

Maura: Well so that’s not defined. So the language is a little bit murky about whether it’s within the perimeter or around the perimeter. There’s also the concept of a drift zone. I don’t know if this would be a good time to talk about that. We do have a question that’s specific to drift zones if you want to take that and maybe see if we can work that in.

Kerry: Okay. So this is sort of CCK spin on how to apply the Thailand herbicide policy. So like I just said, the policy states, “on or near the perimeter” provides a couple of MOS’s, guard duty as being on the perimeter. That doesn’t explain who’s near the perimeter. It doesn’t define what near is. VA’s policy– VA’s practice. We just explained the policy. But their actual practice when they’re deciding these cases are usually to deny anybody that’s not a security guard or a dog handler. And we see it every day that– because that was not the person’s MOS, their claim gets denied. And when they do that, they ignore the other clause of that policy of being near the perimeter as shown by other credible evidence.

Maura: Exactly. So they’re not requiring that you fit that bill of having that particular MOS. They’re using it sort of as an example of a MOS that would have placed you around the perimeter and then also saying, but if you can produce credible evidence of your presence at or near the perimeter, then you also qualify regardless of your MOS.

Kerry: That’s how the policy reads. It’s just that’s not how VA actually puts it into practice with a lot of cases that we see.

Maura: They read it a little more literally. They talk about the specific names, MOSs.

Kerry: Yeah. VA’s got a habit of– and I always compare it to putting the square peg in a square hole– and that they want things easy like that. And again my opinion only here, this causes them to have to think about, well, what is near the perimeter, who applies, who doesn’t qualify for that. So anyway, all that said, we have what we believe is a good rule for near the perimeter and that’s what the Department of Defense used at the time to determine how far a safety zone should be because of over drift from spraying herbicides and they have a manual on the use of herbicides that talks about a 500-meter drift zone when you’re spraying herbicides out of the back of a truck or hand-held herbicides. And so, that being the only real definition of what “near” might be. I think that’s a valid– and that’s kind of come to the folks that follow this area. They all know that to be the– that it’s the drift zone. I don’t know if– everybody probably doesn’t know why that is, it’s because DoD did a lot of testing when herbicides were being developed for Vietnam and they knew how far certain types would drift depending on the droplet size and what they were spraying it out of. And they determined that– because you don’t want to kill a certain vegetation, you don’t want to spray this stuff around it because it’s very volatile and it will kill something even though you don’t spray it directly. So they wanted to keep this stuff out of certain– like food crops. You don’t want to spray it near food crops. So how far away do you need to be from a food crop in order not to kill the food crop? So they had to know what these drift zones were. And their manuals say a good safe distance is beyond 500 meters. In other words, 500 meters is the drift zone.

Maura: But then in turn that tells us that if herbicides were being sprayed at the perimeter, there’s at least that drift zone area that it can be assumed if you’re in that area, you’re at least on or near the perimeter for the purposes of you are probably exposed, if you were there.

Kerry: For the purposes of VA’s policy. Correct.

Maura: Okay.

Kerry: Now, VA has not addressed that on point. The courts have not addressed it. But I’d be really interested to see the result when they do someday because I think they’re going to have to at some point.

Maura: We have a question that’s specific to the drift zone, the topic that we’re talking about. So we’ll take it now. This looks a little complicated so I’m going to let you handle it. So the question is from John. Thank you, John, for your question. We have here, EC121s were parked in the drift zone. It took perhaps 3 hours to pre-flight our planes. And so we were quite exposed and regularly. How is it that batcat members are not covered?

Kerry: Okay. So–

Maura: A couple terms in here we might want to take first.

Kerry: All right. EC121s– and John please correct me but I’m sure that’s an aircraft, probably electronic countermeasures aircraft. And if I’m wrong there just, you know, you can let me know. But you do talk about the drift zone. The aircraft were parked in the drift zone and most of these bases all– probably all aircraft were parked within the drift zone. I mean flight– or most the flight lines were right beside the perimeters. So I understand it takes a long time to pre-flight an aircraft. So you were there for a while. You got to do it every day. So you’re there regularly. Not sure what batcat members are so I’ll just let that go. So, why aren’t you covered? Well, again you’re probably not covered per se for VA reasons, for the reasons we just talked about because you’re not– you don’t have a guard duty type MOS, security police dog handlers. But that doesn’t mean you don’t have a claim. If you happen to have one of the disabilities related to the herbicides, you have a very valid claim. It may not be one that’s going to get granted easily. You may have to win on appeal. You may not. We’ve had quite a few folks in– right into the type of– these jobs that you do. They have been granted without having to appeal. Not very much but it does happen. VA’s coming around slowly but surely. So I would say it’s just in the preparation of your claim. It’s not going to be an automatic grant. You’re going to have to show that you were near the perimeter. But you got all the makings in your MOS to show that you were indeed near the perimeter.

Maura: And so we’re talking about trying to convince VA basically of a veteran’s presence on the perimeter and if they are assuming or if VA is sort of taking the MOS provision of the perimeter policy too literally. And if they’re denying claims as a practical matter based on the fact that the veteran is not a dog handler, is not doing guard duty, police, etc. What sorts of things can veterans submit to help their claims? So there’s that extra prong of the perimeter policy that says that you can show your presence at the perimeter with credible evidence.

Kerry: Right.

Maura: What kind of evidence would be helpful for people to know about to prove that prong of the perimeter policy?

Kerry: Well there is probably a number of things. And it’s going to be easier for some folks than others. First, you want to explain to VA in a preferably typed out, if you can lay statement of what you did in Thailand that brought you to be on or near the perimeter. A perfect example is what John just asked about. He worked on aircraft. The aircraft were well within the drift zone. So explain that. But explain it in some detail. You know, what base you were on. What your MOS was. In this case, the aircraft– basically, I’ll say an aircraft mechanic. Where the aircraft were parked. How close they were to the perimeter. Now obviously, the runway and the flight line is not necessarily the same thing. So, is the run– so, for example, if the runway is closer to the perimeter, then where all the aircraft were parked, say for overnight purposes. We used to call it the slash. Probably, that was in the Marines, though. Did you ever go to the runway to work on the aircraft? Was it always in a parked area or sometimes did it have to be on the runway which might, in some cases, depending on the base have been right next to the perimeter. I know there was at least one or two bases where I’ve seen pictures, where the– we’ll call it the plane captain hut and for those of you that were plane captains, you’ll know what I’m talking about, had a little table where they would wait for the aircraft. They would– basically, a little– like a picnic table sitting right next to the perimeter fence, 5 feet away. And so in places like that where you may have hung out to wait to work on the aircraft. Explain all of that in great detail. Where did you sleep? In other words, how far were your hooches from the perimeter because on some bases, you either walk out the back door of the hooch, walk 10 feet and be at the perimeter fence. Other ones you may have been 50 feet away or 100 yards away. What did you do on your downtime that might have brought you to the perimeter? Did you jog around it? Did you– anything like that. Did you ever pull guard duty? It never ceases to amaze me how much VA does not realize, especially when we’re talking service in the 60’s and 70’s, that most everybody had guard duty even if your MOS was not guard duty. So did you ever perform guard duty? If you did, where? Did you leave the base and how did you leave the base? And assuming you probably crossed the perimeter. It probably needs to be a little bit more than that. But even that helps. So a very good lay statement about your entire time on Thailand is going to be key. Pictures, did you take any pictures? If you did, get copies of them and submit them. That may help. You can find pictures of almost all of the bases online somewhere and you can submit them with a claim or an appeal to show VA, if they’re looking at– if you’re talking about the flight line, you got a picture of the base from up above and the flight line is right next to the perimeter, you’re giving them a frame of reference. If you served with anybody that can make statements on your behalf, you want to do that. So there’s multiple things– you know, you may have to do some homework, but none of it is that difficult to do. You just need to be methodical about it.

Maura: And give VA as much detail as possible that they might not be able to obtain through service records or simply looking at the veteran’s DD 214.

Kerry: Right.

Maura: That will list most likely or in many cases an MOS that is not consistent with the ones that are named in the policy.

Kerry: Right.

Maura: And just sort of explaining your activities there, I think would be really helpful.

Kerry: Right.

Maura: We have another question that dovetails with the perimeter discussion, from Laura. Thanks, Laura, for your question. Laura is asking, what about the mechanics that worked on the vehicles. They worked on all vehicles that had been in the jungle and on the perimeter. So what would you say would be helpful evidence or that would satisfy that extra layer of the perimeter policy given that the MOS of these mechanics is not guard duty or dog handler?

Kerry: Well, there– and you could be referring to a few things, it could be ground support equipment that you’re working on or just things in the motor pool. Ground support equipment would be the stuff you used to tow around aircraft and that type of thing. Well first, let me explain what will not qualify. Something I picked up on that question was the equipment was in the jungle. Now, this may not be what you’re referring to, if it’s not, I apologize. But a lot of people will claim that they worked on, for example, aircraft that flew over Vietnam and when it came back to Thailand, it had Agent Orange on it. All right. VA, just as a matter of policy will not accept a secondary exposure like that. So if it was dirty clothes from somebody that was in Vietnam, if it was aircraft that flew over Vietnam, you don’t want to make a claim based on a secondary exposure like that because VA will not recognize it. So stay away from that. And in this situation, if you’re in Thailand, it’s ground support equipment. Obviously, that stuff is not flying over, flying over Vietnam, so that may not be what you’re referring to. A lot of those same things I said about the lay statement would apply here. Alright. If you go on the notion that the drift zone is a 500-meter drift zone as it states in DoD’s own manuals, and we have a copy of that manual, I suppose we could probably put it online if we need to. Then if you think about the size of these bases, most of them aren’t that big. Some of them might have been but some of them were obviously very small. Some of them, 500-meter zone around the entire perimeter almost cover the entire base. So think about that. Where was the equipment that the person was the mechanic on? How close was it to the perimeter? Was it within that zone? Where did they sleep? Where did they– did the equipment ever break down at the perimeter? And we had many cases where that very thing happened. Did they ever drive the equipment around the perimeter? I know one of the bases at a minimum had a road called Perimeter Road. The road hugged the perimeter especially around the flight line area. That was how they all got to work. Sometimes equipment would stand off at the end of the flight line on the perimeter, more or less, to wait for any kind of potential emergency or whatever. So it could’ve been lots of places a mechanic like that would be working on equipment. So you really got to think from the time you got to Thailand to the time you left. How you could explain all the various ways that brought you close to the perimeter. So don’t look at it as just the mechanic. It could be lots of other things. I hope that helps.

Maura: And sort of– because I think we’re going to be wrapping up soon. But we’ve talked a lot about how there are these policies for the– you know, the perimeter policy and they’re not always consistently applied by VA. So, as you said before, the policy does not require the veteran be a dog handler or a policeman. And yet sometimes VA will say, “Well, since you were not one of those two things, we can’t grant the claim.” So a few years ago at Chisholm Chisholm & Kilpatrick, we filed what’s called a Petition for Rulemaking related to these issues that we’ve been talking about today. So, can you explain a little bit about what that petition is and what our purpose was with it and maybe where the status of that is today?

Kerry: Okay. So one can request any agency, obviously, in this case we did it for VA, request that they create a regulation. So it’s called a Petition for Rulemaking. If an important topic like Thailand, like herbicide use in Thailand is being decided, time and again, by VA but it does not have its own regulation. It’s all working on internal policy that’s not published in the Federal Register that doesn’t get notice and comment from the public, you can do a Petition for Rulemaking and that’s what we did. Now, it doesn’t mean that VA has to make a regulation that encompasses Thailand. They could say no. If they say no or said no, that gives us certain appellate rights, if we wanted to pursue that and do a higher level in court.

Maura: So we basically ask them to consider making a rule about these issues.

Kerry: So we laid out all the inconsistencies that we saw up to that point, the reasons we felt they needed a regulation and basically tried to write a very good argument as to why they needed to make a regulation. They agreed that they would make the regulation.

Maura: And was that a recent development?

Kerry: That was not recent.

Maura: Okay.

Kerry: That was about 2 years ago. You know, the problem is they don’t have a time limit. If they say yes to do this. They’ve said yes, we really don’t know when they’re going to do this. And so, but, let’s say hypothetically, they do it next week, that does not mean– I don’t want people out there thinking Baker said they’re going to do this next week. That’s not the case. Hypothetically, if they did that, the way it should work is they would publish a notice in the Federal Register. The public, us and any of you listening out there and any other organization, will get to comment on that notice. You have 60 days to do it. When VA publishes the final regulation, they have to address all those comments. So if in their initial proposed regulation, proposed rule, they looked like they were doing something that was factually incorrect, we could challenge it at that point or at least comment on it and then we have certain appellate rights down the road if we want to challenge the final regulation. So it’s a way basically for us to try to solidify this policy in a rule and kind of hold VA’s feet to the fire tohopefully get it right and get these decisions made a little bit more equally across the board.

Maura: So, if they go forward with this, if we get a rule at the end of all of this, we either get a rule that maybe fixes some of the problems that we’ve been seeing with the inconsistent application of VA’s policy or we get something that we may not agree with. But at least we have the right to challenge the role because as it is now, nothing is finite enough for us to really attack except on a case-by-case basis. And so, like you said, we want to hold their feet to the fire. We want to sort of force some kind of decision-making process.

Kerry: Right.

Maura: But we do not know when that will happen.

Kerry: We do not.

Maura: And so, we’ll wait. We’ll wait and see.

Kerry: We will wait. And so, that’s about our only choice at this point.

Maura: Okay. Did we have any other questions? Great. So, thank you all for joining us today. Again, this is Maura Clancy from Chisholm Chisholm & Kilpatrick. Also, Kerry Baker from Chisholm Chisholm & Kilpatrick. And again, thanks for tuning in.

[end]

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