Section C.

The Truth about Agent Orange and other Herbicides in Thailand during the Vietnam War

C. VA should presume exposure to herbicide agents for all Thailand veterans.

VA should presume exposure to herbicide agents for all Thailand veterans

1. Thailand veterans were exposed to the same agents as Vietnam veterans.

VA’s current application of its Thailand perimeter policy only concedes exposure for service members with a security-related military occupational specialty (MOS), such as military police, who conducted foot patrols at the perimeter. In such a strict application, VA arbitrarily ignores its own policy of conceding herbicide exposure for veterans who served near the perimeter.

For example, many veterans on or near aircraft or near the barrels containing herbicides were exposed to the same risks as those conducting foot patrols. Lieutenant Colonel Paul Bailey, a member of RANCH HAND, noted that the pressurized aerial spraying tanks would leak herbicides inside the aircraft. Aircraft mechanic George Collins testified in a sworn statement that he worked on a RANCH HAND aircraft after it made an emergency landing in U-Tapao. While attempting to fix the aircraft, he was forced to kneel in the Agent Orange that covered the floor. Leaking barrels also directly exposed service members to herbicides. Moreover, those members assigned to disperse herbicides by truck-mounted or backpack systems would certainly have been exposed. Yet VA’s current policy application eliminates even these veterans from receiving benefits based on their exposure to herbicide agents.

In James Trapp’s affidavit, he states that during his assignment in Takhli’s warehouse, he saw barrels labeled 2,4,5-T and 2,4-D. Additionally, he stated the barrels “had white destination labels signifying they were for the 315th A/C Sq.” Historical Air Force documents from the 315th Air Division verify that 28,000 gallons (approximately 509 barrels) of Agents Orange and Blue were airlifted from Phu Cat, Vietnam, to Udorn in February 1969. This shows a robust relationship between the 315th Air Division and the movement of herbicides.

It is imperative to note that sworn statements of Airmen referenced throughout this report predate the Air Force Historical Research Agency discovering and/or releasing documents showing movement of herbicides from Vietnam to Thailand. This significantly enhances the credibility of these statements by confirming the veterans knew exactly to what they were exposed all along even though the government continues to deny the exposure.

National Archives records also reveal that herbicides were delivered to Takhli on April 7, 1973. Interestingly, this was after all aerial herbicide spray missions in Vietnam had ceased. This delivery would have resulted in the exposure of the aircraft crew; the loading, unloading, and storage crew; the crew involved in spraying the herbicides; and the service members in and around the sprayed areas.

Service members were also exposed to herbicides while constructing the perimeter. In Sidney Chancellor’s sworn statement, he noted that his duties in an engineer unit from June 1967 to November 1968 included spraying herbicides along NKP’s perimeter so that a fence could be installed. Mr. Chancellor reported, “[c]hemicals were stored in containers with orange stripes and we mixed the chemical with diesel fuel and loaded the mixture into a large tank mounted trailer that was pulled by an air compressor truck to spray the materials.” This coincides with an historical document dated December 1968 that provided an update on NKP’s fence and perimeter security and stated “grubbing [removal of trees and shrups] is complete for the southeast corner of the base and west perimeter, and approximately 50% complete for the north perimeter.” Hence, evidence suggests that airmen conducting construction around the perimeter were exposed to herbicides.

Due to the concerns over the integrity of studies completed for VA, the scientific community has created a unified response rebutting the reasoning behind VA’s policies. Jeanne Stellman, an Agent Orange expert at Columbia University’s Mailman School of Public Health, and Fred Berman, the director of the Oregon Health and Science University’s CROET Toxicology Information Center, along with 14 other doctors, toxicologists, and environmental scientists, signed a letter in November 2012 that refutes VA’s “boots on the ground” approach to Agent Orange exposure. The letter addresses the scientific shortcomings and erroneous assumptions of VA’s position by noting, “skin absorption is a primary occupational route of exposure for dioxin-contaminated pesticides.”

Daily life on Thailand bases also exposed service members to herbicide agents. VA’s requirement that Thailand veterans prove their duty position entailed working on the perimeter is unreasonable. U.S. Army Manual 3-3 (dated 1971) advises that a 500-meter buffer zone must be maintained to avoid damage caused by drifts while ground spraying herbicides. The distance between base perimeters and other base activities was normally well below 500 meters. Soldiers lived, worked, and conducted recreational activities near the perimeter and in areas well within the 500-meter drift zone. On Korat, for example, the physical training area and Non-Commissioned Officer building were located within the drift zone, and living quarters were only meters away from the perimeter. Because significant sections of these bases were within the drift zones of herbicides, the exposure presumption should apply.

Moreover, VA’s current position that herbicides were only used along the perimeters is contradicted by documented evidence and sworn statements. When addressing the adequacy of facility security, official documents state that herbicides were applied to the “fenced in area around the ammo storage, facility, around all perimeter guard towers, and the areas around runway overrun lights.” The 1973 CHECO report also states that herbicides were “used on areas within the perimeter.” (Emphasis added.) Because service members were exposed to herbicides that were used inside the base, not just at the base perimeter, veterans who served in Thailand should not have to prove that their duties required them to be near the perimeter.

Several veterans’ statements also indicate herbicides were used within the perimeters of the bases. Mr. Collins stated there were several defoliated areas within U-Tapao including around the Aero Space Ground Equipment (AGE) facility, the baseball fields, and the viewing area for the “Bob Hope Christmas Show.” After the attack on U-Tapao, the 635th Security Police Squadron used herbicides to clear a 100-foot zone on both sides of the perimeter fencing. Command Sergeant Major Witkin stated that he “personally observed Udorn-based grounds personnel often spraying herbicides, including Agent Orange, on the vegetation located in and around the barracks areas and on the base perimeter.” He stated the personnel spraying around the barracks told him the herbicide was Agent Orange. Stephen Pippenger, a dog handler stationed at Udorn from September 1968 to October 1969, stated that he observed Agent Orange being loaded onto the C-123 aircraft. He also saw an aircraft spray the kennel area, and he remembers vegetation in that area dying shortly thereafter. Notably, Mr. Pippenger’s statement and the time period in which he served at Udorn coincide with official records of the delivery of 28,000 gallons of Agents Orange and Blue to Udorn in 1969 and the use of some of those herbicides by C-123 aircraft.

2. In Thailand cases, the VA faces the same challenges of determining exposure details as they did with Vietnam veterans, which ultimately led to a legal presumption of exposure.

A key fact leading to presumptive herbicide agent exposure for Vietnam veterans was that herbicide records were incomplete, making it impossible to determine who was actually exposed. As noted in a 1986 report to the White House, only 2 percent of military records were preserved in the National Archives, and herbicide records were not regarded as a priority for retention. In a 1986 memorandum from an Agent Orange Working Group, the panel concluded that herbicide records were incomplete and that a “large proportion of firebase perimeter spray operations were never recorded.” In a 1981 draft statement, James Stockdale, the Deputy Under Secretary for Intergovernmental Affairs, noted that documentation regarding perimeter spraying was poor and that “less than 5 percent of all helicopter spray missions were recorded on Herbs tapes.”

The government’s inability to identify exposed veterans led Congress to afford veterans the benefit of the doubt as to whether they were exposed by granting the presumption of exposure to all veterans who served in Vietnam. The 1986 Scientific Feasibility of Agent Orange Ground Troop Study noted that the group could not gain a clear indication from exposed verses non-exposed veterans because the records were incomplete. Further, in a 1986 transcript of the Ad Hoc Subcommittee Agent Orange panel, the committee noted that the potential of exposure at base camps “would appear to be considerable because of the regularity of spraying.” Moreover, the subcommittee determined that “levels of exposure are likely higher from exposure in the camps than from Ranch [H]and spraying.”

Before Congress granted the presumption of exposure, government records showed that determining the level of exposure was impossible. The Agent Orange litigation team relied heavily on perimeter spraying, which is noted in its 1984 files. The team also focused on exposure resulting from procuring, shipping, storing, or loading herbicides. In Dr. Alvin Young’s working paper draft of suggested criteria for determining levels of herbicide exposure, he noted that groups exposed to associated dioxin contaminant were personnel assigned to support functions, to include:

[P]ersonnel that sprayed herbicides using helicopters or ground application equipment; personnel that may have delivered the herbicide to the unit performing the defoliation missions; aircraft mechanics who were specialized and occasionally provided support to RANCH HAND aircrafts.

Several sworn statements and unit histories show there are numerous veterans who served in Thailand and would have met Dr. Young’s criteria. He recognized in a draft report that the number of military personnel exposed is unknown because “most military bases had vehicle-mounted and back-spray units available for use in routine vegetation control . . . .” Dr. Young’s documents indicate that herbicides, including Agent Orange and its counterparts, were used for routine vegetation control programs. The similar exposure situations between Vietnam and Thailand merit equal protection, to include the presumption of exposure, for all Vietnam-era veterans who served in Thailand.

3. VA’s illusory distinction between “commercial” and “tactical” herbicides is unlawful and arbitrary.

Agent Orange and other Herbicides in Thailand during the Vietnam War

VA has constructed an arbitrary distinction between “tactical” and “commercial” herbicides. They routinely use this “distinction” as justification for denying Thailand exposure claims. But historical documentation shows no evidence that the military made any distinction between “commercial” and “tactical” herbicides at the time of the Vietnam War. In fact, the distinction is notably absent from records until 2009 when VA published a “Memorandum for the Record” regarding herbicide use in Thailand during the Vietnam Era. The “Memorandum for the Record,” which VA often cites in these cases, is outdated, contains erroneous and misleading statements, and was never intended for perimeter policy cases. Yet, VA has used this Memorandum and the so-called distinction between “commercial” and “tactical” herbicides to deny thousands of herbicide-related disability claims by Vietnam-era Thailand veterans.

Until 2009, VA made no distinction between “commercial” and “tactical” herbicides. The term “commercial” herbicide is notably absent from Air Force archive documentation, including the 1973 CHECO report which specifically states that herbicides used in Thailand had to undergo the same embassy approval process as herbicides used in Vietnam. The term “commercial” in reference to herbicides is equally absent from VA’s internal policies and procedures and from federal statutes and regulations. The term is used only in the Memorandum for the Record and in individual cases wherein VA uses the distinction to deny benefits.

In its original conception, the Memorandum for the Record was never intended to apply to all Thailand exposure claims. VA created the Memorandum as part of Fast Letter 09-20. Fast Letter 09-20 dealt exclusively with Haas-related claims from Thailand veterans that had been stayed. Fast Letter 09-20 states in part:

The stay affected a large number of veteran claimants with service in Thailand during the Vietnam era. Thailand was a staging area for aircraft missions over Vietnam, and many veterans who assisted with these missions received the Vietnam Service Medal (VSM) for their support of the war effort. Disability claims from those veterans who received the VSM for Thailand service, but who did not set foot in the country of Vietnam, were placed under the Haas stay.

Once VA lifted the stay, these claims still required adjudication. However, these stayed claims did not involve claims due to herbicide exposure around Thailand bases or their perimeters. The Memorandum was an attachment to FL 09-20 which was aimed at assisting Regional Offices in completing the adjudication of the stayed Haas-related claims.

In addition to being inapplicable, the Memorandum for the Record is outdated. VA’s policy on herbicide exposure around Thailand base perimeters did not even exist when FL 09-20 was issued in 2009. The Thailand base perimeter policy was not issued until May 2010, when it was introduced in a Compensation & Pension Service Bulletin. The M21-1 Adjudication Procedures Manual was later amended to incorporate the perimeter policy, but the Memorandum was never corrected, amended, or removed from the Manual and VA continues to apply the outdated Memorandum to Thailand base perimeter claims.

Furthermore, the Memorandum for the Record contains erroneous and misleading statements. In the Memorandum, VA states that the 1973 CHECO Report “does indicate sporadic use of non-tactical (commercial) herbicides within fenced perimeters.” This statement is misleading because the CHECO Report never distinguishes between tactical and commercial herbicides use—it refers only to “herbicides.”

The VA’s distinction between “tactical” and “commercial” herbicides has no basis in federal statutes or regulations. The statute that defines “herbicide agent” focuses solely on the chemical agents contained in the herbicides used in Vietnam. 38 C.F.R. § 3.307 (a)(6)(i) defines an “herbicide agent” as “a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam . . . specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram.” (Emphasis added.) A substance containing any of these five compounds is an “herbicide agent” as a matter of law, regardless of its purpose or name brand. The distinction between a tactical herbicide and a commercial herbicide has no legal or factual significance.

During the Vietnam Era, the military made no distinction between “commercial” and “tactical” agents in their own supply system. In approximately September 1958, 2,4,5-T was adopted for use by the government under Specification O-H-210 and Federal Stock Number (FSN) 6840-577-4201 for a 55-gallon drum, and then later under FSN 6840-616-9159 for a five-gallon can. Chemical Corps described these products as “expandable supply items to be available to all users,” meaning they “were meant for use by facility engineers as an herbicide for grounds keeping (i.e., brush and weed control).”

Agents Blue, White, and Orange all known to contain chemical agents outlined in § 3.307, were also available in the federal supply system. In the early 1960s, military personnel had access to Agents Pink, Purple, and Green, most of which were undiluted versions of 2,4,5-T and therefore contained even higher levels of TCDD than Agent Orange. VA clearly cannot support its long-held position that “routine base maintenance activities” were only performed by use of “commercial” herbicides that could not satisfy the § 3.307 requirements. VA’s distinction between tactical and commercial herbicides is therefore misguided, arbitrary, and contrary to law.

The government made no distinction between these herbicides in the 1970s and 1980s either. In fact, they specifically pointed out that defoliants VA now labels as “tactical” were commercially available. In response to a 1971-72 Congressional record, an Air Force consultant wrote, “[t]he Air Force does not and has not used any defoliants that are not in general use in this country.” Later, in the 1980s, the government did indeed ban the use of all 2,4,5-T based herbicides for the same reasons it previously stopped the use of Agent Orange (a 2,4,5-T based herbicide) in Vietnam—contamination with 2,3,7,8-Tetrachlorodibenzo-p-dioxin, or TCDD.”