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Fort McClellan Toxic Exposure Court Win

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Bradley Hennings: Hello, I am Brad Hennings, and joining me is Nicholas Briggs. Welcome to our discussion of veterans’ law topics. We are both with Chisholm Chisholm and Kilpatrick, otherwise known as CCK. We are a law firm based in Providence, Rhode Island, and we are here today to talk a little bit about exposures at Fort McClellan and in particular, a court case called McCray versus Wilkie which is document number 19-3492, where the Court of Appeals for Veterans Claims, a US Federal Court has issued what they call a single judge decision and we think it is rather significant as it relates to veterans who served at Fort McClellan particularly during certain time periods. So Nick, can you tell me a little bit about what Fort McClellan was and why it is significant in the VA benefits world?

Nicholas Briggs: So Fort McClellan was a military base in Alabama that is been around for a long time, but really was active primarily during World War II and since that time it transitions to sort of being a home for the Military Police Corps, the Women’s Army Corps, and most relevant to our discussion today, the Chemical Corps, and chemical school. Military personnel was trained at Fort McClellan and chemical warfare, different types of agents, radioactive materials and how they impacted warfare, and the use of the base as a chemical training school continued until it was eventually closed in 1999. So there were lots of different chemical agents used and tested at Fort McClellan over the years and relevant to our conversation today, we are talking specifically about herbicide agents, including 24D and 245T, and the extent to which they were used during certain periods of time at Fort McClellan.

Brad: So when we talk about herbicide agents, are we talking about what is colloquially known as Agent Orange? Are we talking about other chemical herbicides?

Nick: Exactly. So VA often tries to draw the distinction between what they consider tactical herbicides like Agent White, Agent Orange, so on and so forth. But the regulations specifically contemplate chemicals such as the chemical components of the agents themselves, including the chemicals that I mentioned in 24D, 245T, and its contaminant, Dioxin. So even if the Agent Orange or Agent White themselves were not used at Fort McClellan, if commercial herbicide agents that included the same chemicals that were used in Vietnam, then veterans exposed to those same chemicals should, in theory, be entitled to presumptive service connection for any conditions VA considers. Presumptively related to those specific herbicide agents.

Brad: Okay, so let us talk a little bit about the decision from the court. So what exactly is it that happened here? What is it that CCK argued on behalf of the client? And what did the court find in terms of VA’s errors in analyzing the arguments?

Nick: So one thing to keep in mind in Mr. McCray’s case, specifically, is that he served after the specific window of time during which we know that most of the herbicides were used at Fort McClellan. Something like on the order of several thousand, dozens of thousands of barrels of these herbicide agents, was used and tested from 1974 to 1976. Mr. McCray served there about a decade later, but the scientific evidence that we worked with experts to compile over the last several years tends to show not only that many herbicides were used during that specific window of time, but also that they remained on base and are potentially used up until 1985. When 245T and herbicides using that specific chemical were banned because they contain dioxin, so we have evidence showing that these specific herbicides were used throughout Fort McClellan’s main areas, the main post, and the Pelham Range, up until around 1985 at least if not later. And in Mr. McCray’s specific case, he served at Fort McClellan about ten years after 1976. That period of time where we have confirmed use throughout the base, and what we are able to show using soil samples and other scientific evidence from an environmental baseline survey is that the soil samples themselves contained both 24D and 245T as late as 1999. So even if the chemicals used stops in seventy-six or potentially as late as 1985, they remained in the soil and potentially harmful to veterans coming into contact with that soil at least as late as Mr. McCray’s particular service and potentially as late as 1998 when soil samples were still showing these dangerous chemicals at detectable levels and the surface level of the soil.

Brad: So now this case, the VA has not conceded that there was this kind of chemical use at Fort McClellan. Is that correct? So the VA through the Board of Veterans, appeals rejected our scientific evidence that we provided. Is that a fair statement?

Nick: So, that is a fair statement in Mr. McCray specific case, but if you take a look at the decision, one of the things that they pointed to was that in several other relevant board decisions, VA has conceded that these chemicals were used on base, including one specific veteran who served within about a year of Mr. McCray at Fort McClellan, and he was granted presumptive service connection for an herbicide related condition, even though he served many years after VA says they stopped using these so-called commercial herbicide agents. So the crux of the court’s decision basically highlights the fact that Mr. McCray has submitted all of the scientific evidence showing not only that cover herbicide agents were used at Fort McClellan, but that they continue to be used after 1976, potentially as late as 1987, that the contaminants included in those herbicides were found in the soil as late as 1999. More than ten years after he served there and he provided specific late testimony that he, during the course of his basic, his training there, came into contact with the soil, the water, all the sorts of different things that might have been contaminated and the board did not discuss any of that evidence. They dismissed it as being too general, not specific enough to his case, and without actually addressing the underlying fact that ample evidence of these particular herbicides being used at Fort McClellan had been presented.

Brad: So it seems based on what you are saying, Nick, is that the VA has recognized in individual cases that veterans have been exposed to these chemicals. And so it sounds as though the cord was calling VA out to a certain extent regarding inconsistency in treating similarly situated veterans. Is that being a fair statement?

Nick: Absolutely, and it kind of comes down to the fact that walls board decisions and one veterans’ case are not necessarily going to be binding and indifferent veterans’ case because they are differently situated. There are necessarily going to be different facts about their individual appeals. But when we are getting to the heart of the matter here, it can be general evidence, you know, we are establishing that the scientific evidence shows that herbicides were used at Fort McClellan and persisted in the soil through 1998. And that fact is going to remain facts across any number of different veterans’ particular decisions.

Brad: So we talked a little bit and about some of the evidence that we submitted in this particular Fort McClellan case. It seems pretty clear that VA does not have this evidence or in the sense of they have not recognized it. So what kinds of evidence exactly are we talking about that we submitted, in this case, to show the fact that these agents, herbicide agents were used and they perhaps, persisted in the soil, water, etcetera.

Nick: So a lot of our evidence comes from the environmental baseline survey that was conducted as a part of the closure of Fort McClellan. And specific years have more information available than others. So for example, in 1974, we are not only able to tell what specific herbicides were used. But the exact quantity that was used over the course of the year. For example, 8,000 gallons of Silvex were used, 7,200 gallons of a 24D based herbicide were used, and then 12,000 gallons of DMA or other arsenic-based herbicides were used. So there alone, we are talking nearly 30,000 gallons of herbicides used over the 40,000-acre base over the course of a single year, and similar numbers were shown in 1975 and 1976. After that point, we do not have the same sort of specific evidence of how many gallons were used in a given year. What we do have is an accounting of how many barrels of each individual herbicide remained in Fort McClellan stores, and Silvax and some of the others remained in significant quantities up until 1985 and in the particular case of Tordon 101, which again contains some of the component ingredients that are covered by the regulation. Those who remained in Fort McClellan sort of chemical source as late as 1991. So even though we cannot show that they were used, they were clearly present on base and the 245T base herbicides were not banned until 1985. There is simply no reason to think that those herbicides were not in continuous use until they were banned, and there is testimony from a forester and several other military personnel at Fort McClellan attesting to the fact that they used these herbicides, including Tordon 101, and Silvex, to help maintain fire lanes and other areas of the base as late as 1987. So even though most of the testing that we know about and can specifically account for, was made from seventy-four to seventy-six, we still have a lot of evidence showing that it was used potentially as late as 1987. And regardless of whether we have proof of actual use the soil samples still show the presence of 245T and Dioxin TCDD’s contaminant as late as 1998. So if veterans came into contact with the soil in areas where the herbicides were used, even if they serve their ten years after the fact, they are still, potentially, there is still evidence that they may have been exposed at least to the at least as likely as not standard that VA uses.

Brad: So this all sounds like a fairly complicated technical-scientific area of VA benefits. What would you recommend a veteran who served at Fort McClellan do as it relates to their VA benefits?

Nick: At the end of the day, a lot of this is information that they simply would not have known about during their time there because just because Fort McClellan hosted the chemical school, does not mean that every military service member who served there was a part of the training and use of these chemical agents. Like we talked about at the top, no all military police tempted to train at Fort McClellan and they were in the fields doing basic training exercises. So the best that can do if they served at Fort McClellan during the relevant time period is one if they have any of the conditions that are assumed to be presumptively related to herbicides like diabetes, coronary artery disease, prostate cancer. They should consider filing a claim, and with that claim, the best that they can do is provide a statement regarding their specific duties and training at Fort McClellan to talk about where they were on base? What they were? What did they saw? What did they do? Where specifically on a base that they trained? If they can remember, and just to sort of talk about the things that they are competent to testify about, the things that they saw, the things they heard, and then VA will need to adjudicate their claim with this scientific evidence in mind.

Brad: So I think what is really significant about this case. It is one of the first times that the Court of Appeals for veterans claims is really engaged with the evidence of this exposure, of these chemicals that have been at the base. And so it is providing a public forum and acknowledgment that there is evidence out there. That this stuff was used, and that it potentially persistent for many years after the fact. So that is why this case is so significant because the court really recognized the potential probative value of all of this, this evidence. So it is really exciting for us to see some movement being made in these cases, you know, to ensure that any veterans that served a form of the moment are getting the benefits to which they are entitled. Nick, before we sign off, do you have any final words on this case? Fort McClellan, and some of the issues that arise from it?

Nick: Again, just to highlight the fact that veterans should submit lay statements talking about their time there because that is ultimately going to determine whether or not they can get service connection for their claims conditions. And these are complicated matters, while VA presumes exposure in certain places, like Vietnam or certain members of the Air Force or other branches that served at the perimeters of Thailand bases. There is no presumption here. It is going to take some work to get the VA to recognize their exposure. So the veteran thinks they need assistance with these matters. They should reach out to their national service organization, or if they do not have representation. They might want to consider looking into it. If only because these are complicated matters and even in Mr. McCray’s decision, the board was outright dismissive of some of the evidence he submitted, but as the court noted, there is good evidence of exposure generally at the base, and the board did not do a good enough job of considering his specific facts, and that is something that all veterans should be aware of.

Brad: It is a really good point. Thanks, Nick. This is complicated stuff, even within the VA benefits process, even within the claims process. These are complicated cases dealing with a lot of scientific evidence, dealing with elements of exposure, and as Nick said, there is no presumption. So, I strongly encourage anyone who thinks they were exposed to reach out to their veteran service organization. Reach out to a VA accredited attorney or agent to sort of helping them craft, acclaim, and or an appeal that touches on a lot of these different areas. Again, this is Brad Hennings and Nick Briggs with Chisholm Chisholm and Kilpatrick, otherwise known as CCK. Please check us out online at cck-law.com. We are also active on various methods of social media. Thanks again, Nick for everything and set this is a really exciting decision in terms of the court recognizing the power of this evidence.

Nick: Absolutely.

Brad: Thanks again.