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Agent Orange

7 Things Every Veteran Should Know About Agent Orange – Video

Video Transcription:

Maura: Hello, everyone. Thank you for joining us today for our Facebook Live discussion. My name is Maura Clancy. I’m here with Jenna Zelmer and Nicholas Briggs, and we’re here at Chisholm Chisholm & Kilpatrick. Today we’re going to be talking about seven things to know about Agent Orange. Our topics today are going to talk about what Agent Orange is? What herbicides are generally? When Agent Orange was used? How it was used? And some legal issues and benefits issues that arise from the use of Agent Orange. And how it’s relevant to claims that we’re working on today.

As an initial matter, please feel free to leave any questions or comments in the comments feed next to this video. We will do our best to respond to any questions or comments that are posted there. We have a variety of resources on this topic and other topics that might come up today. And so if we think that something’s relevant and responsive to your question, then we’ll be sure to post it in the comment section.

So the first thing of the seven things that every veteran should know about Agent Orange is just generally some background information about what Agent Orange is. So, Agent Orange is an herbicide. Herbicides were used during the Vietnam War for two primary purposes. The main issue that herbicides were used to address was foliage and vegetation that was present in the areas where the Vietnam War was occurring. So, one thing that Agent Orange was used for was to actually destroy foliage that would’ve provided enemy cover, and another was to disrupt the food supply that would have been going to enemies or enemy forces in Vietnam. Agent Orange is probably the best known of all of the rainbow herbicides, but there were other herbicides used during the Vietnam era, including Agent White, Agent Blue, but Agent Orange I think is, by far, the most infamous of them, and it can cause some very harmful health effects.

The reason for that is because Agent Orange is primarily composed of two, I think chemicals that form, a very toxic dioxin. I think that the chemical term is 2378-TCDD, which stands for a really long chemistry-inclined word that I don’t know how to pronounce, but the bottom line is that it is a dioxin that can be very harmful and can cause long-term health effects, such as immune system disorders, reproductive disorders, development issues, cancers, and we’re going to talk about a more exhaustive list of those things later today.

Then the last thing I have about this first of the topics for today, as background for what Agent Orange, is how it was actually used during the Vietnam War. So, there were multiple vehicles that the military used to spray Agent Orange. I think the ones that we hear the most about are the C-123 aircraft, and those were obviously used to be able to spray herbicides from the air over large areas of land and vegetation.

They were also used in handheld sprayers for more localized areas on the ground. They were sprayed through buffalo turbines, which were tanks attached to trucks. So again, to be able to localize the spraying on the ground, and they were also sprayed from helicopters. So I think with that background information, and importantly with knowing about how Agent Orange is a persistent and very toxic chemical, meaning that even after its use, it can remain in the environment; it takes a very long time to break down, there are long-term and lasting health effects, which has led to VA addressing the widespread use of herbicides and Agent Orange through what’s known as the presumption of exposure.

So Nick, can you tell us the second thing on our list, which is what is the presumption of exposure, and how does it work?

Nick: Sure. So, with the presumption of exposure, we’re really talking about the three basic elements of service- connection. You need an in-service occurrence; you need a current disability; you need to be able to show a relationship between the two things. We’re going to be talking about both the presumption of the exposure in service as well as presumptive nexus, but for the purposes of this section, we’re really talking about if you were in a certain place at a certain time, then VA’s going to presume that you were exposed to herbicides basically, regardless of whether or not you actually were.

So with that in mind, the three main things that we tend to see are veterans who are boots on the ground in Vietnam, meaning they stepped foot on the the landmass, veterans who served in the inland waterways of Vietnam, and in light of the recent Procopio case, veterans who served in the blue water Navy, and those would be any veterans that served during the period from January of 1962 to May 1975. So, anyone who served in Vietnam in one of those areas would be presumed exposed under the law. From there, we also have presumed exposure to Agent Orange in the Korean demilitarized zone between September 1967 and August 1971, and then finally, Maura mentioned this a bit earlier, but spraying occurred via the C-123 aircraft. So, any active-duty personnel or reservists who worked on those aircraft between 1969 and 1986 would also be presumed exposed to herbicides.

Maura: Okay, great. So that’s a good listing of the ways or the locations and timeframes where VA will apply the presumption of exposure, but as Nick mentioned, the presumption of exposure really just speaks to one element that’s needed to prove service connection. So just as background, the three elements for service connection are a current disability, an in-service event or occurrence, and a nexus between those two things. So, the presumption of exposure takes care of the in-service event.

Jenna: Right.

Maura: But then Jenna, can you tell us about the presumption of service connection and how that works if there’s an herbicide issue involved?

Jenna: Right. So, the presumption of service connection essentially eliminates the need to get a medical nexus opinion between your current disability and your Agent Orange exposure. So, going off of what Maura and Nick said, first, you can demonstrate that you were actually exposed to Agent Orange by demonstrating that you were in a particular place at a particular time. Once you meet that threshold if you have a certain kind of disability that VA has a list of … A lot of it is cancers, some diabetes mellitus, some ischemic heart disease, which includes coronary artery disease. I’m not going to list the whole list of disabilities, but VA does have the list in its regulations. If you have any of those disabilities and you were in Vietnam, you automatically get service-connected for that disability. You don’t have to go out and get a doctor’s opinion; you don’t have to go to a VA exam, VA is going to say, “You were here at this time. We presume that you were exposed to Agent Orange, and you have this disability. We’re going to presume that that disability is related to your exposure.”

I think one really important thing to know is that even though VA has this list of presumptive conditions, that doesn’t necessarily mean that you can’t get service-connected for a different condition due to Agent Orange exposure, but you wouldn’t get the presumption of nexus. So you would need to go out and get a VA exam or a doctor’s opinion that relates your current disability to your Agent Orange exposure.

If you do have one of these disabilities, I think it’s really important to make sure that your doctor, either your VA doctor or your private doctor, is making sure that you’re getting the correct disability, or the correct diagnosis, excuse me because having, for example … Peripheral neuropathy is on this list, but only if it’s early onset. So only if you had the peripheral neuropathy soon after you were exposed. And so it’s really important to kind of make sure that when you’re claiming presumptive service connection. You’re making sure that you or your representative or your attorney, whoever you choose to help you, reads the list very carefully, so that you aren’t either assuming that you can get a presumptive service connection for something that isn’t on the list or the vice-versa.

 

And so, the other thing to know is that this list that VA has developed is based on research from the National Academy of Sciences. VA has a relationship with the National Academy, every I believe two years, they ask the National Academy to conduct a review of any conditions that may be related to Agent Orange exposure. Theoretically, VA is supposed to be updating this list of presumptive conditions based on that research. It is a little bit behind. So, I think, I know we’ve talked about kind of major benefits issues at the end of last year that we’re going to be seeing in 2020 and so even though the National Academy of Sciences may say that there is a likelihood that, for example, hypertension is related to Agent Orange, VA hasn’t updated that on this presumptive list. So, you just want to note that you’re still going to need to substantiate the nexus between your hypertension, for example, and your Agent Orange.

But you can use the National Academy of Sciences research. I would talk to your DAV rep or whoever has helped you, whether it’s an attorney, a DAV rep, or another VSO. To make sure that they are giving VA all the information it needs in order to make it as easy as possible to give a favorable decision.

Maura: Yes, so clearly, VA’s list is really important. It’s important to us because it’s important to know if a veteran who VA has already presumed to be exposed to herbicides has one of those conditions. It makes proving service connection very easy because all you have to do is cite to the list and say that they need the elements of service connection because that condition is presumed to be related to their herbicide exposure, which is already presumed.

The flip side of the list is that VA commonly falls into the trap of thinking that if you don’t have a condition on the list, then there’s no connection. [crosstalk] Right, and there’s no way that herbicide exposure caused that condition. As Jenna mentioned, that’s really where the need for some medical information might come into play, and some need for some legal argument about how the list is not the end of the story, there are other ways to be service-connected for things that are not on the list. I think Jenna also makes a great point about how hypertension is not included, among other things. We talked about this in a video not too long ago, and it’s really frustrating that VA obtains information from the National Academies, and I think they have at least a guideline of 90 days to take some action on the…

Jenna: The term.

Maura: Yes. There’s a timeframe that’s provided, and they’re supposed to be updating the list in a timely fashion, and they really haven’t done that with respect to some conditions that the science shows are pretty strongly linked to herbicide exposure. So please feel free to reference that list either through VA’s website, or I believe we have it on our website, probably in multiple locations. Again, as we have our conversation today, definitely please feel free to leave any questions or comments in the comments feed next to this video, and please feel free to also visit our website at cck-law.com. Nick, let’s turn to you now. So far, the discussion has been about conditions that arise in veterans that were exposed to herbicides in service, but there are some provisions in the law that recognize that herbicide exposure can also have harmful effects on dependents of veterans or children of veterans. So, can you talk about that regulation?

Nick: Its honestly one of the more novel aspects of the law when it comes to herbicide exposure because you don’t often see, aside from traditional dependency benefits, veterans’ family members being eligible for benefits as a result of the veterans’ service. But when it comes to people who served in Vietnam, who were exposed to herbicides, VA, will recognize that certain conditions are related to that exposure. So, the primary example is spina bifida. So, when a veteran serves in Vietnam and then conceives a biological child after that exposure, VA’s going to presume that spina bifida is related to the herbicide exposure.

That’s the only one based specifically on the veteran’s exposure to herbicides. Male veterans, at least. But if there were any women who served in Vietnam during that same period, there is a much more expansive list of birth defects that can be attributed to the herbicide exposure. Again, we’re not going to go through the full list, but some of the conditions include cleft lip and a congenital heart condition. Then once the veteran is service-connected for this disability, or once the dependent is service-connected for these conditions, they’re entitled to additional benefits through VA, including healthcare benefits, vocational training. The only thing is that they’re not eligible for these benefits until they turn 18 years old.

Maura: Okay, good to know and also agree that this is a novel area. I don’t think we see a whole lot of this, but we’ve definitely have seen some instances where this applies, and it’s always good to know because we do get questions sometimes about health effects that can persist and be passed on to future generations. So, VA does have that covered to a degree, and like Nick said, although we didn’t recite the full list today, we do have that material through previous videos and other blog posts and things like that if you think that applies to your circumstances and you want to take a look. So, we’re going to switch now to talking about point number five on our list. I haven’t really adhered to the numbering as we go along, but hopefully, it’s clear enough. We’re going to talk now about Agent Orange in Thailand.

We focused a lot about the presumption of exposure and how that centers really around Vietnam and other places, but Thailand is also a big area where we see lots of herbicide exposure issues. So, Jenna, can you tell us about that?

Jenna: Yes, so I think one major thing to remember about Thailand is if you served in Thailand, you are not eligible for the same level of presumption of exposure. So, whereas any veteran who was in blue water, brown water, or set foot in the landmass in Vietnam can claim presumptive exposure, veterans who served in Thailand, they don’t get the presumption, but they do have some special provisions that VA applies to them. But it is a much more fact-based consideration, and you really need to demonstrate a bunch of facts in order to allow VA to concede that you were exposed to herbicides.

So essentially the military in Thailand used herbicides in some places in Thailand. Primarily on Royal Thai Air Force bases. But in that Air Force base, it wasn’t the whole Air Force base; it was only the perimeter. So, VA’s internal procedural manual says that if a veteran has service in certain Air Force bases in Thailand and can demonstrate that they were on or near the perimeter, then VA will concede exposure. So, it’s not a presumption, VA the burden is still on the veteran, but there are special considerations that the VA is considering when making that determination. So, the easiest way to demonstrate that you were on the perimeter, which the VA kind of notes in its special provisions, is if you were a security dog patrolman; If you were a security guard. Anything that you’re kind of consistently being along the perimeter. Well, we like to argue that there is no temporal requirement for how much you have to be on the perimeter. The language the VA uses doesn’t have one.

 

We would say that applying the benefit after the veteran; you probably don’t need to demonstrate that you are consistently on the border or on the perimeter, excuse me, just that you were on the perimeter at some point during your service at the Air Force base. But we see a lot of times that veterans who weren’t in those MOS’s, they weren’t a dog handler, or they weren’t a military security guard, VA will just kind of check off the list and say, “Oh they weren’t these two things. They didn’t serve on the perimeter.” And so that’s when it’s really important for veterans to provide evidence. So, it can be pictures; it can be maps, it could be lay statements, all kind of demonstrating, that you did have some contact with the perimeter. And the reason why VA uses the perimeter as this kind of, that’s where they’ve decided that herbicides were used was because, as Maura mentioned before, herbicides were used to clear foliage.

And so they wanted to clear a pathway between the perimeter and the foliage so that they could see any approaching enemy forces. And so, even though veterans don’t have the presumption, there is a kind of pathway if you will, to demonstrate that you were exposed to herbicides. It is a much harder, I would say, harder burden to meet then if you were just in Vietnam. But VA is supposed to be providing special consideration to Thailand veterans. The other thing that I think I want to mention is that when we’re talking about the perimeter, there is what we call a drift zone. And so even though a veteran, or excuse me, the military was spraying herbicides along the perimeter, just the way that the wind carries and the characteristics of this agent orange that was sprayed, so it’s going to actually drift further than just staying exactly on the perimeter. And so that’s something to make an argument about too.

If you can talk about if you were within 500 meters of the perimeter, that might be enough to say you are near. VA doesn’t really define what on or near the perimeter is, and so it’s really important to kind of just provide as much evidence and lay evidence and statements and pictures as you can so that it again makes it as easy as possible for VA just to concede exposure.

Nick: It’s also worth mentioning that the VA does draw a distinction between Air Force veterans and Army veterans. Air Force veterans just need to provide credible evidence that they were on or near the perimeter. With Army veterans it’s a bit more strict because the Army veterans who were there tended to be there in the early years, so they either served as security personnel on the Air Force bases while they were being set up or they served off base in smaller installations. So, for Army veterans, they need to be able to provide credible evidence that they were involved in security duty specifically along either the perimeter of an Air Force base or along the perimeter of one of the smaller army installations as well.

Maura: There’s definitely a lot of traps too, I think because the policy at first glance looks pretty broad. It just says that if you were on or near the perimeter, then you should, VA should concede that you were exposed, or VA should establish exposure. But there are a lot of loopholes, and there’s a lot of things that kind of come into play whereas Jenna mentioned, it’s wise to give them as much factual evidence as possible that can support your contention that you were on or near the perimeter because they tend to think that only if you had a certain MOS such as a patrolmen or dog handler, then the presumption or the not the presumption, the concession of exposure should only apply to those persons. And as Nick mentioned, the difference between Army and Air Force veterans. So lay evidence is crucial.

Any other evidence that you might have is really critical. And it’s also important to remember that although VA is recognizing the use of herbicides in Thailand, it’s kind of a trap. There’s a lot going on there.

Jenna: Yeah. And it’s all based on VA’s internal procedures manual. So, it’s not as clear cut or set in stone as the Agent Orange Act, which applies to veterans in Vietnam. And so, I know in the past, I think VA actually changed the manual related to the Thailand exposure at some point. And so, it’s always important to kind of make sure that you and your representative are keeping up to date and making sure that you are following VA’s law and VA’s policies when it’s in a set law. The other thing, the other trap I would just note briefly is sometimes VA distinguishes between tactical herbicides and commercial herbicides.

From our perspective, it doesn’t really matter. Herbicide is herbicide and whether or not it’s used as a tactical measure and that’s as in, as we mentioned, clearing foliage to prevent enemy cover or in the more commercial base. And I don’t even have an example of how a commercial herbicide would be used, but either way, it’s being sprayed, and you’re being exposed to it, and it’s causing the same, your body isn’t kind of saying, “Oh this was just commercial, so I’m not going to cause you cancer.” So that’s something to kind of consider.

Maura: That’s one of the more comical things that I think they’ve come up with is the distinction between the use of a substance, and yet the substance is the same at the end of the day. It’s comprised of the same toxic material.

Nick: Exactly. The so-called tactical herbicides are the rainbow agents. Those are the things that they call tactical herbicides, but at the end of the day TCDD and other byproducts and dioxins are just as common in the “commercial” variance, so it’s the same active ingredient that’s causing the same problems.

Jenna: I think that’s a good point. Sometimes people will specifically say agent orange and what they’re really talking about is the herbicide and so don’t let that kind of, they use it interchangeably and don’t let that confuse you.

Maura: And there are some other locations where herbicides were sprayed or at least stored. They’re not specific to Thailand, but I think there has been the release of an updated list with some other more discreet locations. We figured it would be important to flag those. Nick, do you want to throw out a couple of mentions?

Nick: Yeah, like Maura said, there are certain locations where they do consider herbicides having been used for certain periods of time. Fort Gordon in Georgia is one example. Herbicides were also stored at Johnston Island in the late seventies. VA is constantly updating the list. Like we mentioned, they recently just added some locations by releasing the new list recently. But at the end of the day, even if it’s not a current location that VA recognizes as a place where herbicides were used if you know and you have evidence that can show that the things were used there it shouldn’t stop you from filing a claim at the end of the day. VA’s got a duty to assist to help you identify any issues that you might have been exposed to during service.

Maura: Great. The next topic that we want to talk about is the Nehmer class. So, Nick, can you talk about the Nehmer litigation and why it’s relevant to what we’re talking about today?

Nick: Exactly. So, the Nehmer lawsuits that were filed in the 1980s really come down to the process by which VA recognizes and adds conditions to the presumptive list and how they need to treat effective dates for conditions that are added. Because obviously, as the scientific evidence develops and the NAS generates more and more reports over the years, VA’s added certain conditions to the list that weren’t initially recognized as being related but were later acknowledged and added to the list. So, whenever that happens, VA has an obligation to look at whichever condition is added, go back, and find claims that were previously denied. That were filed prior to the claim or the condition being added to the list. Re adjudicate the claim and then, if granted, establish an effective date that lines up with either the diagnosis of the condition or the date of the claim, whichever is later.

Maura: So I think the idea there that’s important to remember is that the veterans shouldn’t be harmed by the fact that VA wasn’t caught up on the science or that the information wasn’t solid enough for them to have implemented presumptions and things like that back when these claims were first filed.

Nick: Exactly. One of the important things to keep in mind is that Nehmer effective dates are based on when the conditions added. So, for example, ischemic heart disease was one of the conditions that was added to the presumptive list in August 2010. So, if a claim was filed for that condition prior to 2010, if a veterans identified as a Nehmer class member, that could entitle them to that earlier effective date. However, there might be a situation where a veteran diagnosed with diabetes in 2005, but because diabetes was added to the list prior to 2005, there was no special effective date provisions that would go into place for that veteran.

There are lots of special rules that go into how a Nehmer effective date is determined and oftentimes you don’t technically even need to file the initial claim. There are certain rules where a condition is considered an implicitly denied if there’s an evidence of diagnosis in the record while another condition is claimed and, in those situations, VA is supposed to investigate the applicability of earlier effective dates too. If you have any questions about this specific area of the law, it’s definitely helpful to reach out to an attorney or your representative just because it can get really complicated when you’re trying to figure out whether or not an earlier effective date warranted.

Maura: Definitely. You stole my line I was going to say that because as you were explaining it, it’s a good reminder that particularly with Nehmer issues, they can get very complex. There’s a lot of research involved, especially in trying to figure out what the procedural history of a particular case is. So, there’s a lot that goes into those. And the last topic that we want to talk about today, Jenna, let’s discuss Blue Water Navy veterans and the addition of that class of veterans to the agent orange presumptions.

Jenna: Yes.

Maura: This is a topic that we’ve covered a lot lately because it’s pretty cutting edge. Things are still unfolding day by day with respect to this topic. But please give us an outline of that.

Jenna: Yeah, so just to provide some context, as we mentioned in the beginning, the agent orange act when it was first created applied to veterans who served in the Republic of Vietnam. And we’ve talked a lot about how that means boots on the ground, you set foot on the landmass, you were in the brown waters, and now it includes blue water veterans. But when it was originally being interpreted, the courts and VA both agreed that the Republic of Vietnam only meant the actual land and the brown water that flowed through the land. So, rivers and things that were within the landmass, but they made a distinction between that and the blue water around Vietnam, any deep harbors. So blue water and brown water comes, it’s very literal, comes from what the water looks like. So if you were a Navy veteran, you could really only get the presumption of exposure if you had docked in a harbor and set foot on land or had entered the brown waters.

So that recently changed essentially the federal circuit and Procopio V Wilkie determined that this distinction between blue water and brown water didn’t really matter because if you read the correct definition of the Republic of Vietnam that includes all of its territorial seas, and that includes blue water. And around the same time that Procopio came out, the Congress passed the Blue Water Navy act. So, when read together, this essentially extends the presumption of exposure to veterans who served in the blue water in the 12 nautical miles around Vietnam.

And one really important thing that we all actually learned recently from a VA RO employee was that the line of where the 12 nautical mile starts actually starts from, there were a few islands off of the coast of Vietnam that are still considered Vietnam. And so, if you are a Navy veteran and you were in the blue waters of Vietnam around that time, you’re measuring from the island to 12 nautical miles out. You’re not measuring from the coast. And so that’s a really important distinction. It is a little bit broader than i think some of our original ideas about measuring 12 nautical miles from the coast, and so VA has a lot of things that they are working out in terms of how to track ships and how to figure out if veterans did cross that line. But if they did cross the line, then they are entitled to exposure.

And so you as a veteran can obtain ship logs. I know the national archives has a lot of ship logs. If you have any sort of evidence that would place you in the blue water within those 12 nautical miles, you would be afforded to the same presumption of exposure that Vietnam veterans who were boots on the ground have gotten. So, it’s exciting; there’s still a lot of things to work out procedurally. The act didn’t go into effect until January 1st of this year, so it’s really only been 30 days.

The other thing that I would know, just jumping off of Nehmer, the Nehmer presumption does not apply the same way to blue water Navy acts… Navy veterans. So essentially, rather than having a duty to investigate whether or not prior claims had been filed, VA actually puts that on the veterans, and if they had previously been denied a claim, the veterans are now encouraged to file a new claim. And then once that new claim is granted, then VA will look and see whether or not an effective date earlier than that new claim is warranted, but they’re not going to do a whole investigation about previously denied claims. So that’s important to note.

And I think the last thing I would just say, VA has kind of gone back and forth on how many veterans is actually going to affect. I know that’s something that we talked about in a prior Facebook live video, but if you do think that you are one of these blue water Navy veterans, I would encourage you to reach out to your representative, your attorney, whoever is helping you clip out your claim and just making sure that once you do get that claim granted, you can see if you can get an effective date earlier.

Maura: Nick, anything you want to add to the blue water?

Nick: Just again, VA is still in the process of digitizing millions of pages of deck logs that are being held by the national archives. So, at this point, you may not necessarily be able to access your particular deck logs just because they’re being held and being scanned. So that shouldn’t deter you from filing a new claim. You’re better off filing it now, so the onus is on VA to address it once the deck logs have been associated.

Maura: Great. Anything else that either of you wants to add to what we talked about today?

Jenna: Nope.

Maura: Great. Any questions? Perfect. So, thank you all for joining us today to talk about seven things that everyone should know about agent orange. We hope that you enjoyed today’s presentation, and we definitely hope to see you next time.