1. What is Fort McClellan or “Fort Mac”?
2. Is there a Fort Mac presumption?
NOTE: From minute 4 to minute 5 there are some pauses in the broadcast image, but the audio continues and the video continues after minute 5. Thanks for your patience with our technical difficulties.
HERBICIDES AT FORT MCCLELLAN
3. VA’s definition of “herbicide agent”
4. Fact-based exposure evidence vs. Presumptive exposure
5. Herbicides at Ft. McClellan: When were they used and how much?
- The only recorded information about herbicides at Fort Mac
- Ft. McClellan Environmental Baseline Survey
- List of herbicides and pesticides on hand at Fort Mac in 1980
6. How herbicides were used at Fort McClellan
- Audience Question: How long do herbicides stay in the environment?
7. Herbicide use on Fort Mac from 1974-1976, compared to Vietnam
- Who was exposed to herbicides on Fort McClellan?
8. VA’s approach to herbicides at Fort Mac
- “Commercial” vs. “tactical” herbicides
- Audience Question: Was Ft. McClellan the only base where herbicides were used?
OTHER EXPOSURES AT FORT MCCLELLAN
9. What other kinds of chemical exposures were at Fort Mac? (RE: nerve agents, mustard gas, radioactive elements)
- PCBs from the Monsanto Plant in Anniston, Alabama
10. Can family members that lived on Fort Mac get disability benefits?
- Audience Question: What about TCE in the groundwater from Anniston Army Depot?
11. Radiation exposure at Fort Mac
12. Could the recent ruling on Monk v. Wilkie make it possible for Fort Mac veterans to file a class action?
13. Women veterans at Ft. McClellan and children with disabilities
14. Final Thoughts
Brad: Good afternoon again this is Brad Hennings with Chisholm Chisholm & Kilpatrick. We just wanted to apologize we’ve had some technical difficulties. So, we’re not sure that the original part of the broadcast actually went out but that being said, we’re going to charge forward at this point. Again, it’s Chisholm Chisholm and Kilpatrick and we’re here to talk a little bit about the issue of Fort Mac Clellan as it relates to the VA claims process. With me are Kerry Baker and Emma Peterson. They’re two advocates who work here at the law firm. So, let’s jump right into what it is exactly we’re talking about. So, what is Fort Mac Clellan or Fort Mac?
Emma: Sure. So, Fort Mac was an army base down in Anniston Alabama. During World War II. It was one of the largest army installations in the country about half a million troops went through Fort Mac at some point and then after the war was over it eventually became the home for a couple groups: the Military Police corps were stationed there, the Women’s Army Corps and what I think everyone is most interested in today the Chemical Corps and chemical school. They trained there in chemical warfare, different types of agents, radioactive materials and how those impacted in warfare and that really started picking up as early as 1922 and continued on throughout time up until the base was eventually closed in 1999.
Brad: So, there isn’t any dispute that we know that some of these chemicals and some of these agents were used at least for testing purposes at Fort Mac Clellan?
Emma: Absolutely. Everyone knows that chemical core was there. That’s no secret. The issue is that VA has indicated that as far as they’re concerned the science doesn’t show anyone was exposed to any type of chemical agent to the level needed to produce serious long-term health effects.
Brad: So, Fort Mac Clellan was closed in 1999 as part of the army base closure and realignment committee program and in that legislation, it required the environmental cleanup of Fort Mac Clellan prior to its transfer to the public domain. Subsequently, it was found out or realized that Monsanto which was in Anniston Alabama although not on the base of Fort Mac Clellan itself contaminated that area with high levels of PCBs or polychlorinated biphenyls. That being said, so that’s sort of another piece of the puzzle that fits together with Fort Mac Clellan. Now, as a pop are there any presumptions associated with service at Fort Mac?
Emma: They’re not. So, this is different than Camp Lejeune where you serve for a certain period of time. You have a presumptive condition, service connection is granted. It’s possible to get service connected for disability from Fort Mac exposures but veterans and advocates are going to have to show that the disability is due to an exposure show that exposure and show a nexus between the two conditions. So, this is not the same as a presumptive case. It’s going to be more traditional service connection route for folks.
Brad: So, these are going to be difficult cases to win, are hard cases that’s not adhere to your standard kind of case?
Emma: Absolutely. There’s definitely going to have to be argument and development made to try to persuade VA that this is what happened.
Brad: When I was a veterans law judge at the Board of Veterans Appeals I saw some Fort McClellan cases and I can assure you that at least some of the adjudicators myself included and some folks at the regional offices do take the exposures that were there very seriously. I once had a case with a decontamination specialist and the evidence reflected along that the veteran had a nexus opinion as well as proven exposure to a number of toxic chemicals that caused his disability. That being said, let’s talk a little bit about what we know about herbicide use at Fort McClellan, Kerry?
Kerry: All right. So, I know a lot of people are discouraged when they’re dealing with Fort McClellan claims. VA does not grant these very much hardly at all and a lot of people try this all or nothing approach. They want VA to recognize they were exposed to nerve agents, to radiation, to PCBs, TCE, the PCE and there’s no doubt that all of that was on the base at some point and at different levels at different times throughout the years and more at some parts of the base than others. But the difficulty with these cases is narrowing down can you show exposure to something that caused your disability?
So, the first hurdle is were you exposed to something? The next hurdle and that’s difficult enough as it is, on a case by case basis to show yes, Veteran A was exposed to this particular substance but then you have to ask, is there a relationship between a specific disability in that exposure? That’s usually going to require medical Nexus. So, our approach here first and foremost you know, one of the reasons we wanted to do this Facebook live is to talk about how we can win some of these claims based on laws that are already on the books and that’s where we get into herbicide agents. So, before we get too much in the details, I want everybody to understand what is a herbicide agent when we’re talking about herbicides? Are we talking about Agent Orange? Because that’s what everybody thinks. Agent Orange was all over Fort McClellan and it may have been, we don’t have specific evidence of that but we have really good evidence going down a different path. So, let me explain what a herbicide agent is for VA purposes.
VA’s regulation defines herbicide agents as 2,4-D or 2,4,5-T and it’s contaminant TCDD, Cacodylic acid or Picloram? Now, let me explain what those mean. Agent Orange was a 50-50 mixture of the n-butyl esters of 2,4-D and 24,5,-T, right? 2,4,5-T in all 2,4,5-T base herbicides were contaminated with Dioxin or 2378 TCDD those specific dioxin that everyone’s concern, that’s the most potent dioxin and that’s the dioxin that all others are measured against. So, that’s what made up Agent Orange. Picloram and 2,4-D made up Agent White, Cacodylic acid was Agent Blue. So, when these things were shipped to Vietnam, these two chemicals for Agent Orange 2,4-D, 2,4,5-T are mixed together 50-50, wrapped in a painted in an orange stripe around the barrel sent to Vietnam.
But VA’s regulations do not require you to show, even though they will say it does, they don’t require you to show exposure to Agent Orange. VA’s regulation requires exposure to a herbicide agent, right? That is the most important thing here when we’re talking about herbicides. So, if you can show it a plain reading of the law, you can show exposure to one of those agents and you have one of the diseases that are considered presumptive to herbicide agents, you should be able to get service connection for that. So, why can you get service connection with that from Fort McClellan but you want Vietnam? Okay? That’s also really important understand and also something VA just doesn’t seem to understand.
First, the regulation at 3.309 that lists all the disabilities related to herbicide agents, requires you to be exposed to a herbicide agent as defined at another part of the regulation called 3.307 during active duty. It doesn’t say during active duty in Vietnam, okay? So, that’s first and foremost. Be exposed to a herbicide agent during active duty as VA defines it. VA defines it in 3.307 for those of you they want to look it up and that’s defined as of what I mentioned earlier 2,4,5-T, 24-D, the TCDD contaminant, Picloram and Cacodylic acid.
Brad: So, they really break it down by the actual chemical components rather than trade names?
Kerry: Because it’s the chemical components that are dangerous. If you took 2,4,5-T which was its own herbicide the military government agencies whoever could order 2,4,5-T, alright? Without the 24-D that was a herbicide in the National Supply System and it was contaminated with TCDD just like Agent Orange was because that’s what Agent Orange was made of. So, when Congress wrote the law and VA originally wrote the regulations, they understood that if you were exposed to this particular toxin regardless of what it’s named, you might get sick. So, that’s why that’s important. So, we’re any of these on Fort McClellan. So, that would be the next question. Let me back a little bit. So, the law doesn’t require you to be in Vietnam. Obviously, if you were in Vietnam you get a presumption of exposure, okay? Here you don’t get a presumption of exposure but if you can factually show exposure and VA concedes that yes, this veteran was exposed. We’ll concede exposure here. Then, the presumption for service connection still kicks in.
Emma: So, let’s sit that again because important in any case when you’re doing a facts found herbicide agent or other exposure. You can have a presumption of exposure and then a presumption of service connection and those are two different things. So, while Fort McClellan veterans might not be presumed exposed if you show exposure you have one of the enumerated and disabilities for herbicide conditions then you shouldn’t need a nexus, right? You should get presumed service connection?
Kerry: That’s correct.
Kerry: Good example would be Thailand cases. People who were under perimeters of Thailand during the Vietnam War they’re not presumed exposed but if they can show they were on the perimeters a VA concedes the exposure they still get the presumption of service connection for that disability as long as it’s a herbicide related disability. In other words you don’t need to produce a nexus, okay? So, that’s so important here because then you have to look at well what herbicides were on Fort McClellan, you know if we don’t know whether or not Agent Orange per se was there or the components of Agent Orange there, were the components of Agent White used there, were the components of Agent Blue used there and the question is undoubtedly yes.
So, the next question is when were they used? How much were they used? That gets a little bit more tricky. So, I want to talk about what herbicides we know for a fact we’re used on Fort Mac Clellan, all right? If any of you have read the environmental baseline survey there’s two volumes to it one and two this is a very large document well over a thousand pages. There’s a section in there that talks about pesticides and herbicides.
Now, one of the problems would knowing what basis in general for McClellan or any other base that used herbicides is these weren’t records that military was really required to keep very long. Herbicide either military or weed killer. So, in their mind back then, do they need to keep a hold of those records now it for they were required to hold those records for two years.
So, it’s a little hard to show historically what was used and where it was used. So, what we know about Fort McClellan is, one document in the end environmental baseline survey that actually recorded the years and the amounts used in those years of particular herbicides and those herbicides and all this read them, Silvex, right? Silvex is a 2,4,5-T based herbicide kind of like Agent Orange. It was contaminated with TCDD. It was banned along with the rest of 2,4,5-T herbicides in 1985 for the very same reason because it was contaminated with dioxin. 2,4-D was used on Fort McClellan. 2,4,5-T the actual same chemical in Agent Orange was used on Fort McClellan. DMA and DSMA which is an arsenic-based herbicide. Now, that’s not Agent Blue. Cacodylic acid in Agent Blue was an arsenic-based herbicide and that’s why that’s on the list. Now, we don’t have evidence that Agent Blue or Cacodylic acid per se was on Fort McClellan but we do have evidence that many other arsenic-based herbicides were on Fort McClellan. So, it’s a half dozen, one six, or the other if you kind of look at it that way.
Picloram. Like I said earlier, Picloram was Agent White or Picloram, let me rephrase that. Picloram was in Agent White as well as 2,4-D. It was one-part Picloram, four-parts 2,4-D. Now, that is a herbicide called Tordon 101. It was used all over Fort McClellan. That’s the exact same herbicide as in Agent White. You put it in a 55-gallon barrel painted white stripe around it you have Agent White. Okay. You ordered a 5-gallon bucket you don’t have Agent White but you have the exact same chemical Tordon 155 or Tordon 160 number ones — Anyway, Tordon 155 is a different kind of Tordon still with Picloram of that particular one was used with 2,4-T not 2,4-D. So, used with the same herbicide as used in Vietnam or different kinds of different brands of Tordon.
So, we know those herbicides were used. We know they were used in 1974, 1975, and 1976, now that’s the only recorded information that we have that tells us how much they were used. In 1974, I’ll just read this to you, 8,000 gallons of Silvex was used, 7,200 gallons of 2,4-D was used, 1,800 gallons of 2,4,5-T was used and 12,000 gallons of DMA or another arsenic-based herbicide was used. In 1975, 6,000 gallons of 2,4-D was used. 18,480 gallons of Silvex was used. Again, that’s a 2,4,5-T based herbicide, 4,000 gallons of Picloram 160 was used. That’s Tordon 160 which is the Picloram and the 2,4,5-T, which is the same one in Agent Orange. Arsenic org– which all I know is an arsenic-based herbicide, got from the name 8,000 gallons of that was used, 20,000 300 gallons of Tordon 101 was used. Again, no different whatsoever that Agent White that was Agent White and 4,000 gallons of DMA another arsenic based herbicide was used. All in 1975. 1976, 4,800 gallons of 2,4-D was used, 10,000 gallons of 2,4,5-T was used, 41,460 gallons of Silvex was used. 6,400 gallons of another arsenic-based herbicide was used and 1,200 gallons of yet another arsenic-based herbicide was used. So, we know that much herbicides were used in those time frames. Now, we know it was used before 1974. We know it was used after 1976. The problem there is we don’t know the exact amounts. If somebody is studious enough to read through the environmental baseline survey, they will find interviews from foresters that used to work on Fort McClellan. They will find other lists of herbicides on hand at Fort McClellan, the interviews from the foresters and these were interviews that were done in preparation for the BRAC closure when they created the environmental baseline survey. So, these were first hand interviews. We know they used Tordon 101 from the 60s all the way up to the late 80s at a minimum. We know they used 2,4-D even into the 90s. We just don’t know the extent. So, let me talk– Well, in 1980, before I get into – it’s a lot of information. So, bear with me.
So, in 1980 there was a list of herbicides on hand. Now this particular list said there’s pesticides and herbicides on hand for use and disposal and so, that’s a little tricky. They have all these herbicides and pesticides to dispose of them or to use them. Well, if you look at that list a lot of those chemicals most are pesticides not herbicides, a lot of them are organic chlorine-based pesticides, they were outlawed. They were banned way before 1980, can’t use them anywhere in the United States because of their environmental persistence. They had changed to organophosphate pesticides. So, we know those weren’t being used.
Emma: We hope.
Kerry: Well, yes. But the herbicides on the list were not banned at the time. So, we have every reason to believe they were still being used. Deadweed LV9 there was 275 gallons of it on hand. Deadweed LV9 is 2,4,5-T period. Actually there was 275 gallons and another shipment of 75 gallons. So, you can add those up. Deadweed LV9 which is 245-T is 83% active ingredient. Now, why do I say that? Why is that important? That’s because that’s almost 100% 2,4,5-T. Agent Orange was only 50% 245-T. So, Deadweed LV9 a “commercial” herbicide, we can get into that a little bit too, was basically 75% 245-T compared to Agent Orange which is only 50% 245-T. So, it goes to show if you have more 2,4,5-T in a herbicide they’re going to have more of its contaminant dioxin. We know that was used. Silvex 24-D, Tordon 101 was 2,005 pounds of the pelletized Tordon 101, another 300 gallons of the Tordon 101 which is the Agent White. So, this is 1980. So, we know these were all here.
Brad: So, the argument then is that some of these herbicides used at Fort McClellan are arguably even more dangerous than the ones that were used in Vietnam.
Kerry: Arguably yes.
Now, we know these were used for other things than just spraying a few weeds here and there. Now, one of the interviews that was taken in 1977 after the information from 1977, the interview was in the 90s was from people were that worked in the forestry department, they acknowledged that they used Tordon 101, 2,4-D, 2,4,5-T, all over the base to include things like vegetation manipulation for army training and recreational purposes. Why are you going to use herbicides for vegetation manipulation for army training, okay?
Now, I’m not going to answer that question. I want to put that in perspective. Those herbicides I mentioned to you earlier, they’re from ‘74 to ‘76. In total, there was 153,640 gallons of the combination of those herbicides used between ‘74 and ‘76. There’s only 45,500 acres in Fort McClellan period. That’s the Choccolocco Corridor, that’s Pelham Range as the main post, combine them all up, that’s 45,500 acres. I’m sure a lot of things on the main post consisted of roads, buildings, parking lots, any other things that any other base would use. So, really you’re not talking about 45,000 acres, you’re talking about less. Now, I don’t know how to find out, how much grass area and boilage there was compared to pavement but you’re still looking at whatever it was, say it’s 30,000, say it’s 40,000, you’re looking at 153,000 gallons of pure agent, the active ingredients being sprayed on an area. There was only 45,000 max. So, as you probably take out the roads you probably got about 35,000 acres.
Brad: So Kerry, we’ve got a question as we’re going along. How long does the herbicide remain in the environment?
Kerry: That’s a really big: it depends, on the herbicide. In 2,4-D and 2,4,5-T were coral phenoxy based herbicide. In other words, they were chlorine phenoxy. You don’t need to get all the chemicals. Those were more persistent in the environment. The dioxin in 245-T was very persistent. Once you got the soil in the plant system, that’s very persistent. It stays there for years. So, I know all of that really answers the question. Some are more persistent than others. The arsenate doesn’t stay around very long. The chlorophenoxy ones do–
Emma: It sounds like ‘74 to ‘76. It’s pretty clear we know their some type of herbicide agent used. Then years after, we think there is because in 1980, we got this list of what’s left over.
Brad: Right. You just don’t know the amounts.
Kerry: And we have all the list in ’91. We still have at least 24-D on the list. So, I want to explain a little bit more about this. You know, you got 45,000 acres on Fort McClellan. Let’s compare that to Vietnam, okay? We know millions of gallons of Agent Orange were sprayed in Vietnam, but when you compare the land mass in Vietnam to the amount of herbicides that were sprayed in Vietnam over a 10 year period and you compare that to the amount of herbicides that were used in Fort McClellan in that 3 year period, and you calculate how much you could cover the land mass, you could cover the land mass—let’s take it by square mile. It comes out the same when your square mile, square acre. You could cover Vietnam about a hundred and forty-six towns when you’re looking at it per square mile compared to all herbicides that were dumped there. We’ve done the math. A hundred and forty-six point some other times. Well, Fort McClellan for those 3 years, you could cover the land mass over 1,900 times.
So, what does that tell us? That tells us these things were not being used in accordance with commercial standards. No way, no how, it was not happening. We don’t know why they were using so much other than army training or they were using these things for buffalo sprayers like the use in Vietnam. These things put out massive amounts of herbicides. So, these were not being used in accordance with commercial standards at all. The were being used in more quantity compared to the land mass in Vietnam. So, if you were there in Fort Mac Clellan during those times, were even ’77, ’78 because that stuff’s not going to go away that fast. And you were doing training: land navigation, field training, rifle range, PT, you name it, all right? In the areas that don’t have pavement, you were likely exposed to this stuff to some degree. I’m talking about everything from base housing to the golf course to the training ranges, because they used it in all these locations.
Brad: So, if you were there serving at Fort McClellan and spent any time just about anywhere during that period of time, you were likely exposed.
Kerry: You were very likely exposed to some degree. So, the task is getting VA to understand all of this information. I’m telling you right now, they don’t. It’s our job to educate VA on what all this means and how it relates to their own law, their own regulation of what herbicide agents are. That’s a problem because VA looks at all these with very in a funnel. When they ask about herbicides, they think Agent Orange. That’s all they think about. If it’s not Agent Orange, then it must be a commercial herbicide. They have the opinion that commercial herbicides don’t count. There is no such word as commercial herbicide or tactical herbicide in any of the regulations or statues in the government. When we argue these cases, we come straight out and say to VA, “There’s no such thing. There’s no distinction.” Yes, herbicides were used in Vietnam in a tactical environment, right? And there are certain manuals out there on how to use these herbicides in a tactical environment. Using a herbicide in a tactical environment does not make it a tactical herbicide. Especially when you use the exact same thing in a non-tactical environment. Exposure is exposure.
Brad: Chemicals are chemicals and they’re dangerous whether you call them tactical or commercial.
Kerry: Right. So, having said all that, you would think, “Why won’t VA grant more these?” One they don’t understand this– I would like to see a rater, DRO, maybe Brad would know some or judges besides himself that may have researched this, but there aren’t many. They also get into a group think, in my opinion, a group think that you have to be exposed to Agent Orange. Then they come out and– this is again my word, you got this presumption paradox. Okay. A presumption paradox in how I see it and we see more decisions like this, especially over the past couple of years. Whether it’s a VA examiner looking at a case or VA radar looking at a case and say it’s case like this. We constantly see them. Well, VA hasn’t determined that an association exists between Fort McClellan and these diseases. So, they end up denying the case because there is no presumption. They almost get into the mindset of, “If VA creates presumption, we’ll grant service connection. But if they don’t, we won’t.” Throw out the rest of the rules on direct service connection, prove your exposure, prove your disability, and is one related to that exposure. As this how their system should work and this is how we’re trying to make it work.
Brad: Now, there’s a question here. Well, these herbicides that you’re talking about, were they used on other bases or was it just Fort McClellan? It’s a great question. Is Fort McClellan camp special in the grand scheme of things?
Kerry: Fort McClellan is a little special in the grand scheme of things mainly because, I hate to say it like this, but we know what herbicides were used.
Brad: So, we can prove it?
Kerry: We have the records.
These things were used in all the bases. The problem is getting the records to show what they were. Now, why does 1977 record that lists these 3 years, stayed alive so to speak, and no years prior to that did, no years after that did as far as the amount used. We don’t know. Okay. They uncovered this document when they did the environmental baseline survey. And that’s really important, we have heard plenty of rumors that Agent Orange itself was used in Fort Mac Clellan. We just don’t have the document and evidence. So, if any of you out there do, please share it.
Emma: Yes. We’re in this together.
Kerry: We can help a lot of veterans. We can help a lot of veterans with that kind of information. This is not to say we’re limiting our cases to these 3 years. That’s just the easiest 3 years, because we can show and VA cannot dispute it. But we also know for a fact that these same types of herbicides were used a lot more than just these 3 years.
So, how do we win these cases? That’s the problem, the question everybody wants to know. We went it by, exactly what I just explained. We’re going to prove to VA exactly what its regulations mean and that these herbicides, consistent with that regulation, were used in such a way outside the commercial standard that if you were training in Fort McClellan this time, you could not not have been exposed. Once we give VA to concede the exposure, the presumption of service connection to herbicide related diseases should by all means kick in. If VA follows the law, all the way it’s supposed to.
Brad: What about some of the other exposures? We alluded to it a little before you talked about. What about the radioactive compounds, like Cobalt and Cesium, the mustard gas, nerve gas from the Chemical Corps, and the PCBs? So, what are the reasons we’re not pursuing a lot of those cases?
Kerry: Well, I don’t want to say we’re not pursuing them. It’s just those are a lot more ambiguous. Probably most of you guys listing out there and gals listing out there, think of things like that. I follow a lot of stuff on Fort McClellan website and Facebook and yes, most people kind of kitchen-sink it. They use nerve agents, they use radiological materials for training, these all the chemicals, and they did. But finding out exactly when they used them, where they used them, how much of them were– you know, if you were there 5 years after they were in a range, after they stopped using live nerve agents, were you exposed to those nerve agents. That’s very very difficult to show. Nerve agents are organophosphate poisons. I told you earlier that things like DDT was an organochlorine poison used to kill insects. The whole reason they stopped using organochlorine was not being they’re dangerous to human beings, although they were. It’s just they never hardly ever left the environment. Organophosphate poisons, like malathion and like nerve agents, most people don’t realize that organophosphate insecticides were just lower levels of nerve agents. It’s what they are. So, both organophosphate poisons, they don’t stay in the environment as long. It’s one of the reasons we don’t use DDT anymore. So– go ahead. I’m sorry.
Brad: No, I was just going to say sort of the bottom line with these other cases are. Hey, it’s challenging enough to win these Fort McClellan cases when we’ve got this frankly pretty overwhelming evidence shown, the usage during these years. But it’s even more difficult to show these various other exposures because of all the unknown. That’s what makes it possible, it’s plausible. It’s just really hard to show.
Kerry: Right. That’s going to go more to what was your job if you were in the Chemical Corps, especially if you were like an instructor in the Chemical Corps.
Kerry: They did live testing of nerve agents. The chain goats up and it removes nerve agents and troops were standing around and watch. If you were going through the chemical school, as opposed to boot camping in this school, to finish chemical school, you had to demonstrate that you were able to don your gear in a live nerve agent environment. If you refused to do that, you didn’t graduate chemical school.
Most of the time, if you get hit with nerve agents, you’re dead, if not dead or you’re really, really, really messed up. Odds are you’re not going to get hit with a nerve at any effect of it whatsoever and be able– I hate to say this, but be able to then prove 20 years later or 30 years later that that exposure caused a certain disability. VA just hasn’t recognized it yet. Science hasn’t recognized it yet. Obviously, you get hit with enough to affect you at the time, that’s a completely different story. But if you don’t, kind of like the guys in Gulf War– I was in a Gulf War– there were nerve agents released because we bombed a dump with them. I flew through the stuff very low levels. Not to say I’m lucky, but had I taken a whiff a little too much, it would immediately have affected me, if not killed me. That’s the kinds of reasons the other exposures were so hard to prove and then so hard to link to a disability. But the PCBs you mentioned, that’s a little bit different because the Monsanto plant just poisoned the entire City of Anniston with PCBs. You can’t really separate it from Fort McClellan. It was all through the drinking water, in the air. So, we can use PCBs as well because that’s one of the other things besides the herbicides that we can definitely show was all throughout the area.
Brad: That being said in Camp Lejeune, VA has established presumptions with Camp Lejeune and has established certain benefits also I believe for family members on healthcare basis. Now, what about family members who lived on Fort McClellan and they became sick?
Emma: As far as I know, there’s no mechanism by which they can get benefits. That will have to be created by Congress or VA through rule-making to make that happen. But as of right now, family members aren’t going to get any type of benefit. But we do have a question from Vincent that’s going back to Kerry’s discussion of Monsanto about groundwater contamination. So, he says, “What about the Paul Krebs Water Treatment facility, Anniston Water Works, including TCE from Anniston Army Depot?”
Kerry: Anniston Army Depot was not far away from Fort McClellan. I don’t have all the details on that, so I don’t think I could answer that question. But what I can say is you mentioned TCE. You know, some of the other chemicals, we know benzene was found in the groundwater on Fort McClellan. We know TCE was found in the groundwater. We know PCE was found in the groundwater. Brad mentioned in Camp Lejeune. Those are the chemicals in the groundwater in Camp Lejeune. So, to the extent, we can tie those in somehow if the herbicide issues don’t work. That’s also a very viable option.
Brad: So, we basically say, “Hey, some of these same chemicals and the reasons you created these Camp Lejeune presumptions, the same chemicals were also present in the groundwater and in the soil, etcetera in Fort McClellan. So, why shouldn’t you say, “Hey, there were some kind of bad exposure.”
Even if it’s not presumption.
Brad: It still shows exposure.
Kerry: So, essentially what Brad and everybody’s getting at, all those are going– we’re focusing on the herbicides because that’s the law that’s going to help us, that’s on the books right now. So, is Camp Lejeune. But we’re not leaving out this other stuff.
Kerry: It’s just a little more difficult. It’s almost like the radiation. We could talk about the radiation, but we use Cobalt, Cesium for training purposes. These weren’t Uranium 238. This was used in order to detect radioactive signals for training purposes. Now, they may have caught a lot of stuff in land fields that may erase the levels too high. Generally speaking, if there was some bit of Cobalt somewhere that was putting out just enough radioactive signal to measure it, then you could use that for training purposes. Proving somebody got sick by that is much harder. Radiation cases are very difficult unless you’re consider an atomic veteran participating in a radiological activity, like an atomic bomb testing. Even then if you were in those areas, you’ve go through those assessment. Those reconstruction assessments were VA, those things almost turn out negative. So, that would be the hardest route of all I think, is to rely on the radiation.
Brad: Well, given the severity of the potential toxic exposures here, could the recent federal circuit case in Monk v. Wilkie make a possible for Fort McClellan veterans to file class action at the Court of Appeals for Veterans Claims, dealing with these issues?
Kerry: I think it could. You know, how you define a class, it’s going to be tricky. I would like to know how many cases that have been denied based on VA conceding exposure to say the herbicides, to think are they commercial. When we know that’s not a valid reason for denying the benefit. That would be very interesting. You would be able to answer more than me. That would make both of you a good class.
Brad: So that would make an interesting class. What do you think some of the challenges about putting a class together might be otherwise, Emma?
Emma: So, the problem is going to be number one, the court is still figuring out the rules for class actions at the CAVC. It’s a new mechanism that veterans are exploring, our firm’s exploring it actively and some other folks are too. Right now, we know they’re going to somewhat follow the federal rules, the suitable procedure. And that gets into, who our potential class action participants. Since there are so many different types of exposures over so many different years, different mechanisms of exposure, it’s going to be hard to figure out who should the class be. There might be subsets of class, little pockets of groups, herbicide exposed, and training in boot camp for these years. All the folks exposed to Cobalt-60, people exposed to different nerve agents– there could be different subsets, but we can’t really lump everybody in, all together just because of the way their claims are going to go. It’s going to be different chemicals, different toxins they’re exposed to, different mechanisms. So, it’s still sort of a wait and see in my opinion, about whether we can get together a class and whether that’s going to be helpful in the best way for veterans to pursue claims based on Fort McClellan exposure.
Kerry: Going back up and add something. Brad, you asked a question earlier about family members. Emma was correct that most family members aren’t– you know, this is not in the VA rules. But if VA, let’s just say you were in the Women’s Army Corps, and VA concedes that you were exposed to one of these herbicide agents and your child has certain disabilities — usually there’s a list of them. I don’t have it memorized. Then, that child might be eligible if one VA concedes the exposure to the herbicides, nothing else. And the child has one of the disabilities on the list for parents who were exposed to herbicides. Kind of spina bifida in Vietnam Veterans. Most people don’t realize that there are– there’s a list a lot longer than spina bifida for female veterans exposed to things like Agent Orange, herbicide agents, but you didn’t have many in Vietnam. Fort McClellan, you’ve got the Women’s Army Corps and so, to the extent that somebody in the Women’s Army Corps and the other females serving there has a child, there is potential benefit there for the child on the herbicide rules.
Brad: That’s a great point, Kerry. Well, this is Brad Hennings with Chisholm Chisholm & Kilpatrick, getting joined by Kerry Baker and Emma Peterson. We just wanted to see if anyone had any additional questions at this point. If not, we just want to thank you for joining us. Do either of you have any final thoughts, last words?
Kerry: I would like to say, we fully recognize how hard these cases are and how discouraged Fort McClellan veterans are. If any of you, our clients out there, and you’ve seen the arguments we’ve put forth, you can tell we had a lot of work into this. I have put thousand hours at a minimum into the researcher. And so, we are trying, as hard as we can, to crack this egg and we intend on doing it. There’s lots of Facebook groups out there. I wish there is one voice for Fort McClelland. I’m not knocking any other group. C-123 got a presumption. People who work on C-123s. In my opinion, the evidence here is so much more than that. We can make this work. It’s not going to be easy. We just going to fight this all the way, but I think we’re ready for that fight.
Emma: I will just say if you do have comments, you’re watching this on YouTube or you’re watching later on Facebook, be sure to leave a comment for us and we’ll try to get back to you. We’re actively monitoring this and definitely feel free to reach out with questions.
Brad: And don’t forget, please visit us either at Facebook or at cck-law.com which is our website. In addition, as you can tell from our discussion today, these cases are very complicated. They can be very complex. Please, if you have a representative, talk with your representative, talk with a VA accredited agent, or an attorney about trying to make the case because as Kerry said, there’s a lot there, but these are difficult cases to win. So you probably want to reach out and talk to somebody before you really get into pursuing this claim.
Again, thank you all for joining us. Again, this is Chisholm Chisholm & Kilpatrick talking about Fort McClellan. We hope you find this illuminating. Thank you, Kerry, and thank you, Emma for everything. We’ll sign off.