Agent Orange Claims
In this live video, CCK discusses all things Agent Orange – where it was used during the Vietnam War, the illnesses and disabilities associated with exposure to the herbicide, and how to prepare an effective claim with the VA.
For more information on Agent Orange use and claims, check out these links:
Robert: This is Robert Chisholm from Chisholm Chisholm & Kilpatrick, with me is Kerry Baker. This morning we’re going to be talking about Agent Orange. We’re going to give sort of a general overview of Agent Orange, where the VA recognized it was used during certain military campaigns during the Vietnam era, and the diseases associated with exposure to Agent Orange. Before I begin, I want to let you know that you can ask questions at any time and we’ll try and answer those questions. We’re just going to give it a couple of minutes here for people to get on board. Again, my name is Robert Chisholm and this is Kerry Baker from Chisholm Chisholm & Kilpatrick. You can find us on our website at www.cck-law.com. Kerry, if we’re going to talk about Agent Orange, we should describe in general terms what Agent Orange was and what it was used for.
Kerry: Okay. Agent Orange is a herbicide that was developed and used primarily in Vietnam to clear the foliage away from the tropical jungles in Vietnam in order to provide less room for the enemy to attack our troops and for our troops to have better visibility and cut down on ambush attacks. Also, they used Agent Orange and other herbicides in Vietnam for crop destruction as well, to eliminate the enemy’s food supply. That was generally the intent behind its use.
Robert: And over time we’ve learned that Agent Orange was not only just used in Vietnam, but it was also used in other locations.
Kerry: That’s correct. It was used on the Korean DMZ.
Robert: What’s the DMZ? Just to make sure we all speak the same language.
Kerry: Good point. That is the demilitarized zone between North and South Korea. It’s basically a no man’s land that separates the two countries. That has been in place since the armistice after the Korean War. North Korea has troops on their side of it. South Korea along with America has troops on the southern side of it. Herbicides were used there in 1968 to 1971 for the same purpose.
Robert: Okay. Do we know of any other locations other than Vietnam and Korea where they were used?
Kerry: We do. They were used on Thailand base perimeters during the Vietnam War. That’s a relatively new or recognized location of their used.
Robert: If I could just stop you right there, you said Thailand. We obviously had troops in Vietnam during the Vietnam War, but we also had troops stationed in Thailand on mostly on air bases, correct? Is my understanding correct?
Kerry: Mostly on Royal Thai Air Force bases, but they were some Army bases as well. Those bases eventually were getting attacked by guerrilla forces usually at the perimeter. Therefore, they constructed perimeter defenses and some of that included using herbicides to clear the views so that people could see if they were getting attacked.
Robert: The most recent development has been on the C-123 aircraft. Can you tell us a little bit about that?
Kerry: Sure. The C-123 aircraft were the primary aircraft, not the only ones, but the primary aircraft that sprayed herbicides in Vietnam. They had pretty large tanks in them and they would spray them from 2 or 3000 foot altitude. They did the herbicide missions for a number of years in Vietnam. There were also a large push by organizations that had worked on those same C-123 aircraft that had been basically lobbying VA, trying to convince VA that they too were exposed if nothing else but for the residuals of the herbicide agent still left on the aircraft. The Institute of Medicine came out with a report not too long ago where they basically explained that there was residue of the herbicide agents on the planes. Based on that report VA did extend the presumption of exposure if you worked on the C-123 aircraft in a repeated fashion. You were in the maintenance lineup. You had repeated contact with the ones that were involved with the spraying, not just any C-123.
Robert: Let’s go through each one of these in a little bit more detail because the history of the VA recognizing Agent Orange exposure is a long and tortured history to be candid.
Kerry: Right. It is.
Robert: There was a lot of controversy as to the diseases associated with Agent Orange, where it was used, how it was used. A lot of that has now been ironed out in statutes, laws, and regulations and policies. Each one of these has their own little unique history if you will. The rules are different depending on where a veteran served, where they were exposed, and how they were exposed. I think the one that is on most solid ground so to speak is the veterans who served boots on the ground in Vietnam. Let’s first talked about what the rule is with respect to any veteran who served boots on the ground in Vietnam.
Kerry: If you were boots on the ground in Vietnam which means a couple of different things. It means you were within the borders of Vietnam even if it’s for an hour or a day or your whole tour, you are considered boots on the ground. The regulation doesn’t say, as you know, boots on the ground, it says service in Vietnam. Boots on the ground is kind of a slang term that’s been adopted as what that means. Now, some people will consider Brown Water kind of separate from that.
Robert: Let’s talk about Brown Water separately. We’ll get to that issue, but if a veteran set foot on the land mass of Vietnam, they are presumed to have been exposed to Agent Orange.
Kerry: That’s correct.
Robert: Let me give you a couple of examples. A veteran is stationed in Vietnam during the war and he does a tour duty for six months. Is that veteran presumed exposed?
Kerry: They are legally presumed exposed to Agent Orange at that point.
Robert: We’ll talked about what that presumption means in terms of disability and exposure to certain diseases in a minute, but for right now we’re talking about the presumption that a veteran was exposed. Let’s suppose a veteran was transported to Thailand but stopped in Vietnam, let’s say in Da Nang, landed in Da Nang, got off the plane. Is that veteran even, if it’s just for an hour walking around before the flight takes off to Thailand, considered exposed?
Kerry: They are considered exposed as long as there’s evidence that they did land in Vietnam. If there’s evidence that they landed, odds are VA is going to take that veteran’s word that they got off the airplane for that period of time, but there does need to be some evidence that the plane did go into Vietnam. Once that’s there, then they too are entitled to the presumption of exposure.
Robert: Even if it’s just for an hour?
Kerry: Even if it’s just for an hour.
Robert: All right. Let’s take a little different of a scenario. A veteran flying in a plane over Vietnam to Thailand, is that veteran considered boots on the ground in Vietnam for flying over?
Kerry: They are not. Flying over the skies of Vietnam without landing does not count as boots on the ground in Vietnam.
Robert: Now, the next area with reference to Vietnam is those veterans who served in the Navy, and those veterans who might have gone in boats up the rivers. There’s this Brown Water/Blue Water distinction that’s very, very important. Can you tell us what the difference is between Brown Water and Blue Water for the purposes of exposure?
Kerry: If you were in the Navy or otherwise off the shore, you’re also in the service and you were in a river patrol boat, for example, that went up the rivers in Vietnam, that’s considered Vietnam service. Its slang term again is Brown Water, but it’s within the land mass even though it’s in the rivers. That’s Brown Water. Blue Water is normally considered by VA outside of the mouth of the river, in the open ocean, or open bay that lets out into the ocean.
Robert: Good morning again. This is Robert Chisholm from Chisholm Chisholm & Kilpatrick, with me is Kerry Baker also from Chisholm Chisholm & Kilpatrick. You can find us at www.cck-law.com. We’re speaking today in broad terms about Agent Orange. If any of you have any question please feel free to ask us and we’ll try and answer them to the best of our ability. All right Kerry, we were talking about Brown Water versus Blue Water. Right now if a veteran served in the Navy and never entered sort of the rivers or the inland waterways, those veterans presently are not considered exposed under VA policy, correct?
Kerry: As long as the evidence shows that they were in the Blue Water and remained in the Blue Water and there’s no evidence they went ashore or otherwise went in the Brown Water then no, they are not presumed exposed.
Robert: The last area with reference to Vietnam is really the harbors. There is some ongoing litigation about that and it’s a little bit murky at this point. At this point if you served on a Navy ship and it went into, let’s say Da Nang harbor, and some of the other harbors, the law is a little bit unclear at this point. Is that fair to say?
Kerry: That’s extremely fair to say.
Robert: Okay. We don’t have any definite rules, correct?
Kerry: As far as a broad presumption goes, we don’t. If you want I can elaborate on that just a little bit on some of the details. VA considers- if you were in a harbor, you’re in blue water especially if it’s a large harbor like Da Nang. If your ship though has evidence that it sent people ashore and you indicate to VA that you were one of those that were sent ashore, then you have an avenue there to show that you were on ground and maybe presumed exposed to herbicides.
Robert: So an example of someone going to shore might have been someone to go in and pick up the mail for example.
Kerry: Correct. Or if the commander of the ship or some crew went ashore for some specific purpose. That’s the first thing you have to show is that the ship did send people ashore. If you can’t show that then you’ve got an uphill battle.
Robert: Okay. But there’s ongoing litigation about that. There’s also some laws pending before Congress about making veterans who served in so called Blue Water for them to get a presumption but right now that is not the law.
Kerry: We should probably add that if you’re in those harbors and you docked to the shore, your ship docked to the shore rather than being anchored out in the harbor and you left that ship for any period of time, be it five minutes or five hours or five days, then you are considered presumed exposed. If your ship docked all you need to do is state to VA that you did go ashore. The fact that it docked alone is not enough but VA will accept a veteran’s statement that they went ashore if there’s evidence that the ship actually docked to shore.
Robert: Okay. Let’s talk a little bit about veterans who served in Thailand and what they would need to show to say that they were exposed to Agent Orange.
Kerry: Thailand’s a little tricky, as you know. If you served in Thailand during the Vietnam War and you were a security patrolman, security police, dog handler, VA will- as long as that’s shown in your service records, VA will concede. It’s not a presumption but they will concede that you were near the perimeter, on or near the perimeter of the base. That’s right now the perimeter of the base is where they recognized that herbicides were used. It gets a lot more tricky if you weren’t in one of those MOS’s. You have to still show that you were on or near the perimeter of the base for some reason and VA has to accept that. The problem with those claims right now is that many many people in the VA, when they read their own rules on this subject, they believe that the concession if you will of exposure is limited to those dog handlers or security policemen or guards otherwise. It’s not and that makes those claims difficult.
Robert: For the people that served in the DMZ, the demilitarized zone in Korea at a certain time period for those and what is that time period?
Kerry: It’s from 1967 and 1971. I don’t have the exact days in front me. I’m sorry, 1968 to 1971. That date is in dispute as far as the regulation goes. VA recognizes it from 1968.
Robert: If a veteran served in the demilitarized zone during that period, then they’re considered exposed to Agent Orange as well?
Kerry: Most likely, there’s some caveats to that. The rule there is that basically VA and DoD have to come up with a list of units that served at the DMZ during that time frame.
Robert: So your unit has to have been one of the units that they recognize as having been stationed there.
Kerry: Right. VA has a list of those units in its operating manual. If you were in those units at that time frame, they will presume that you were at the DMZ and therefore presume that you were exposed. That doesn’t cut the spicket off so to speak. Those are the somewhat straight forward cases.
Robert: Right. And there might be other cases were a veteran traveled into the DMZ even though his specific unit wasn’t station there.
Kerry: That’s right. And those cases are a little bit more difficult but they’re certainly not impossible. If you can show by credible evidence that you went to the DMZ for some purpose and VA accepts that and accepts that you were at the DMZ , you can still get service connection. It may not be exposure presumption basis.
Robert: Okay. We’ve talked about C-123 aircraft. We’ve talked about veterans who served in Thailand. We’ve talked about veterans who served in the demilitarized zone in Korea, boots on the ground in Vietnam and those veterans who served in the Navy and the Brown Water/Blue Water distinction. The VA conceded exposure in the ways we’ve just talked about.
Robert: What does that mean in practical terms then for a veteran? What does that exposure concession, that presumption, what does a veteran get as a result of that? What’s the benefit of that?
Kerry: As far as the presumption of exposure, once VA concedes that, if you fall into one of these categories, then that’s essentially a legal assumption if you will by VA that, yes, you were exposed to one of these toxins, these herbicide agents while you were in the military. That by itself doesn’t necessarily mean anything if you’re otherwise healthy but if you become sick with one of a certain list of disabilities, depending on the disability, VA will then presume that that disability is related to that presumed exposure.
Robert: Okay. So there’s going to be a list of diseases that we’re going to go through in a minute. If the veteran in one of those areas as we just discussed where the presumption of exposure applies and they have one of these disabilities, then the VA’s going to recognize that disability as being service connected essentially.
Kerry: That’s correct. Those presumptions in tandem, the presumption of exposure and the presumption of service connection eliminates that veteran from having to prove that one, he was exposed on an individual basis, and two, that that exposure is related, caused that disease. It lightens the normal burden that most veteran have when trying to get a service-connected disease.
Robert: Again this is Robert Chisholm and Kerry Baker from Chisholm Chisholm & Kilpatrick. We’re talking today about Agent Orange. Again if you have any questions please let us know. You can find us at www.cck-law.com. So let’s go through the presumptive conditions for Agent Orange exposure. I’m going to go through the big ones first. It’s important to note that overtime VA recognized more and more diseases as being a result of exposure to Agent Orange. And that was primarily as a result of the way Congress enacted the Agent Orange Act, and passed the Agent Orange Act, that the Institute of Medicine. Is that correct? Do I have that right? The IOM-
Kerry: That is correct.
Robert: – continued to study the effects on veterans who served in Vietnam and added more medical conditions as a result of those studies over the years. But we’re going to go through some of the bigger ones first. Diabetes mellitus type 2, that’s one of the conditions.
Kerry: That one was added in 2001. As long as it’s type 2 diabetes rather than type 1, then that’s normally presumptive service connection. It’s somewhat insidious because it has as you know multiple residuals depending on the severity of the disease. All those residuals should be service connected under the primary diagnosis of the diabetes.
Robert: So when you’re talking about residuals, diabetes mellitus type 2, as you said, is an insidious disease and there’s a lot of what I would call conditions that can flow from having diabetes. All those conditions should be service connected for those veterans who meet the requirements.
Kerry: That’s correct, on a secondary basis.
Robert: Ischemic heart disease, IHD and CAD. Can we talk a little bit about ischemic heart disease?
Kerry: Sure, that was added in 2010 along with a few other conditions. Basically, like diabetes, if you have ischemic heart disease as VA defines it and you’re presumed exposed to herbicides, then VA will grant service connection for the heart disease. Not all things qualify as ischemic heart disease.
Robert: But coronary artery disease does qualify?
Kerry: Coronary artery disease qualifies, myocardial infarction which is basically a heart attack qualifies, angina qualifies. There’s some things that are not ischemic in nature do not qualify and that would be certain arrhythmias. It could be a drug or alcohol induced heart disease. It really depends on the type of heart disease you have.
Robert: Okay. Prostate cancer.
Kerry: Prostate cancer was added. I apologize I don’t know the date.
Robert: That’s okay.
Kerry: – it was added. It was prior to diabetes in 2001. Essentially same thing, if you develop prostate cancer, VA will grant service connection for it if you were one of the exposed veterans. I should say too, with something like that you may not have it obviously in all your life. They might remove the prostate or otherwise defeat the cancer. Just because it’s in remission doesn’t mean you can’t file a claim if you didn’t otherwise know you could. You can still come in and file the claim if you have residuals from that cancer, then VA will still service connect those residuals as well.
Robert: Respiratory cancers including lung cancer, larynx, trachea, bronchus, those are all recognized.
Kerry: Those are all recognized and think of them as if it’s part of the airway, it’s recognized. That’s distinguished from the digestive system. Sometimes there’s a little gray area.
Robert: If you have a digestive system like stomach cancer, that is not presently recognized?
Kerry: That is not recognized.
Robert: The thing about lung cancer is and as you know the veterans who served in Vietnam many of them were actually given cigarettes, is that correct?
Kerry: That’s true.
Robert: And a lot of them probably smoked. If they’re smoking we now know obviously that smoking cause lung cancer.
Kerry: That’s correct.
Robert: How does the presumption work for a veteran who smoked but also served in Vietnam and develops lung cancer?
Kerry: It should work just like any other presumption. VA should not hold it against that veteran that they smoked because the presumption of service connection acts as a medical link between the exposure and the disease. It takes the place of the medical nexus that you would normally need for service connection. You may have a potential link between your smoking and the lung cancer but you also still have the link between the exposure to herbicide agents and the lung cancer.
Robert: Let me ask it a different way. If a veteran was smoking a pack a day and served in Vietnam, that shouldn’t prevent them from winning their claim.
Kerry: It should not. It should not. Now, there is a rebuttable provision in the law that basically states if there is relatively solid evidence, and we’re not quoting there, that shows a different thing other than the exposure causing the disease, yeah, VA can deny that claim. That has to be relatively clear and convincing evidence. VA is not supposed to go out and seek that evidence, in other words develop to deny the case, but it happens occasionally. Generally, it should not hurt the claim.
Robert: Okay. Some other conditions, Hodgkin’s Disease is recognized. Non-Hodgkin’s lymphoma is also recognized as diseases-
Kerry: That’s correct.
Robert: -as a result of exposure. Parkinson’s disease is now recognized, correct?
Kerry: Parkinson’s disease was added in 2010. Obviously that’s a terrible disease and it’s helped a whole lot of Vietnam vets. Now, if you want I can elaborate a little bit on that one.
Robert: Well, why don’t you do that because there’s Parkinson’s disease and there is something called Parkinsons-like tremors and Parkinsonism. I can’t say it.
Kerry: Well there is Parkinsonism.
Robert: Parkinsonism, I’m sorry.
Kerry: It’s okay. I probably can’t say it most of the time. There’s Parkinson-plus syndrome and there’s Parkinson-like diseases that may not qualify as Parkinson’s disease.
Robert: But if it’s a diagnosis of Parkinson’s disease, then that is currently recognized.
Kerry: That is currently recognized. Parkinson’s disease only is currently recognized. However, the IOM in its last and most recent report clarified Parkinson’s disease to mean Parkinsonism, Parkinson syndromes, Parkinson-plus syndrome. All those diseases that are similar to Parkinson’s. Now, VA has not enacted that in its regulations yet. We don’t know whether they will. I personally believe they probably will. Personally I believe they have to because it’s already in the regulation and the IOM clarified it.
Robert: But right now the only thing that they are definitely recognizing is Parkinson’s disease and not the other?
Kerry: Right, that’s correct.
Robert: Okay. Again this is Robert Chisholm and Kerry Baker from Chisholm Chisholm & Kilpatrick. And we’re talking about Agent Orange. There was recently an article in a local paper here. We’re based in Providence, Rhode Island but we represent veterans all across the country. About a veteran who served in Vietnam and developed chronic B-cell leukemia. Chronic B-cell leukemia is a condition that is in fact recognized. The story I believe that they told in the local paper about this particular veteran was that he didn’t know that he could apply for benefits because he didn’t know that was a recognized condition but someone told him that. He applied for benefits and of course the VA immediately granted it as they should because he had boots on the ground in Vietnam. He had a condition and he immediately started receiving VA benefits. It’s really important for veterans to sort of check the law on this and if they have one of these diseases, the VA should immediately grant service connection.
Kerry: That’s correct.
Robert: Okay. So we’ve now gone through most of the presumptive conditions. That is if you have this disability like lung cancer, Parkinson’s disease, multiple myeloma is another one we haven’t talked about, the VA should grant you benefits, but there are other conditions that veterans have filed for that are not on the list. One of the one’s that comes to mind is hypertension, colon cancer, kidney cancer, liver cancer. These are non-presumptive conditions. Can veterans who served in Vietnam and were presumed exposed to Agent Orange win those claims?
Kerry: They can. It’s difficult because the presumption of service connection for the other diseases takes a medical link, the medical nexus, between the exposure and the disease out of the play.
Robert: So you don’t really need a medical opinion for the conditions that the VA recognizes –
Kerry: That’s correct.
Robert: – other than to have the diagnosis?
Kerry: Right. That’s what the presumption does for you. If you had something else like bladder cancer or something not on the presumptive list, then you then have to have a medical nexus between the exposure and the disease based on your specific case of that disease, not as the disease in general. Those are hard to come by. A lot of your VA examiners will simply opine if VA asked for an opinion in your case, that it’s not related, because it’s not on the list. That’s incorrect to adjudicate a claim that way. Basically it falls back to the standard claims process, you need to show a medical nexus.
Robert: Medical nexus is a fancy term for you need to get a doctor or a medical professional to say that that particular cancer was a result of the exposure to Agent Orange.
Kerry: That’s correct. When I say those are a little harder, in our experience and if any of you folks out there have went through this process with one of those diseases before, you’re going to see that VA probably holds those other diseases to a higher standard than they should because a lot of times even when someone has a medical opinion linking a non-presumptive disease to their exposure, VA may still deny it. So just be prepared to fight for that but they are winnable cases.
Robert: Okay. So some of the claims that we represented veterans or their dependents for non-presumptive conditions that we have provided medical opinions for include bladder cancer, hypertension, the Parkinsons-like tremors, I’m not going to be able to say it again.
Robert: Parkinsonism, okay. Hypothyroidism, stroke, colon cancer, kidney cancer, liver cancer, and myelodysplastic syndrome conditions.
Kerry: That’s correct.
Robert: One of the more challenging ones that we represented a veteran on was a glioblastoma which is a brain cancer.
Kerry: That’s correct.
Robert: Many many gliobastomas are very fast acting cancers. The diagnosis is usually quite grim. But we have won a couple of these claims where we’ve gotten an expert to testify that the glioblastoma was non-hereditary. That the only likely cause was the exposure to Agent Orange.
Kerry: That’s correct. Even then we had to fight really hard for it because it wasn’t an easy win but we nonetheless still did.
Robert: I don’t know if we have any questions yet. If anyone has any questions again please feel free to ask. We’ve now gone through the overview of Agent Orange. What was Agent Orange, we talked about an herbicide used mainly in Vietnam but it was also used in Korean demilitarized zone and Thailand, for the folks that worked on C-123 aircraft. We talked about the Brown Water/Blue Water distinction. Then we talked about the presumptive conditions that VA recognizes as a result of that Agent Orange exposure. We’ve gone through those diseases. Then we also went through the diseases that a veteran can win. The exposure is presumed but the disability or the medical diagnosis isn’t recognized. In those cases, so called non-presumptive conditions, a veteran or dependent needs to get a medical opinion linking that particular disease or disability to their service. That’s our summary for today on the overview of Agent Orange. Again this is Robert Chisholm and Kerry Baker. Kerry, thank you for coming today and talking to us about Agent Orange. We’re from Chisholm Chisholm & Kilpatrick and we’re locate at cck-law.com. By the way even if you didn’t ask any questions but if you want to comment on Facebook, please feel free to share this with anyone else that you think might benefit from it. If there’s any topics that you would like us to talk about, please let us know and comment on Facebook and we’ll talk about those. Thank you again for listening in this morning. Robert Chisholm and Kerry Baker.
Kerry: Thank you.
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