The History of Agent Orange
- What is Agent Orange?
- The “Rainbow Herbicides”
- Why were herbicides used in Vietnam?
- Who developed Agent Orange?
- Herbicide Agent Testing before the Vietnam War
- How were herbicides sprayed?
- Operation RANCH HAND
- When did they stop using herbicides in Vietnam?
- What did they do with the leftover herbicides?
- What are dioxins?
- The 1984 Veterans Dioxin and Radiation Exposure Compensation Standards Act
- The Nehmer Class Action
- The Creation of the Agent Orange Presumption
- The Agent Orange Act of 1991
- Other than Vietnam, where else was Agent Orange used?
- Brown Water Veterans and Blue Water Veterans
- Blue Water Veterans Bill Update
- Burn Pit Claims and Herbicide Agents
Maura: Good afternoon everyone. Welcome to today’s Facebook Live discussion. This is Maura Clancy at Chisholm Chisholm & Kilpatrick and I’m sitting here today with Kerry Baker also from Chisholm Chisholm & Kilpatrick. Our topic for today is a history of Agent Orange. It’s a pretty broad one so as always– we want to get right into the material that we’ve got planned. As you probably know, if you’ve used our Facebook Live or viewed our videos before, we will be able to take some questions if you leave them in the comments. So, if a question comes up that you’d like us to look at, we’ll certainly do what we can to get to as many of them as we can and we’ll also use the comment section of the Facebook Live video to post any information that we think might be helpful to sort of supplement our discussion today and any of the questions that we can’t get to. So Kerry, we’re going to get started.
Maura: Pretty broadly, can you tell us first, we’re talking about Agent Orange.
Maura: What is Agent Orange and also related to that, what are the herbicides that we’re going to be talking about in today’s discussion for purposes of the exposure that we see so many times with veterans?
Kerry: Okay. So, Agent Orange specifically was a mixture of two different kinds of herbicides or 50-50 mixtures of 2,4-D and 2,4,5-T and these were the normal butyl esters of each of those herbicides. So, it was — and all that really means is it was a high volatile herbicide as supposed to a low volatility herbicide, so the vapors can damage plants a little bit more with higher volatility. So, that’s when you talk about the butyl esters. That’s kind of what that means. But so 50-50 equal parts of n-butyl ester of 2,4-D and 2,4,5-T. So that was Agent Orange. Each of them were herbicides on the market in their own right. DoD and other agencies could get 2,4-D or 2,4,5-T individually but Agent Orange per se was those two mixed together.
Maura: And when we talk about Agent Orange, it sounds like it’s one of several types of herbicides that we know were used by the military, the DoD, et cetera. So, what are the other types of herbicides other than Agent Orange?
Kerry: All right. So, that’s a really good question because VA doesn’t– VA’s rules and regulations, as you know and their statutes, they don’t use the term Agent Orange even though that’s what everyone else uses. They use the term herbicide agent. That’s because there were more like you said, there were multiple other herbicides that were used in Vietnam and those were known as kind of the rainbow herbicides. And they were obviously Agent Orange but also Agent White, Agent Blue, Agent Pink, Agent Green, Agent Purple. All of those were a mixture of one form or another of 2,4-D, 2,4,5-T, the two in Agent Orange, or picloram and cacodylic acid. So, breaking that down a little bit more, Agent Blue for example was one that was used quite often. That was cacodylic acid which is about 34% arsenic, so also, not probably very good for you. Picloram, Agent White, was 2,4-D and picloram and the mixture was also known as Tordon 101 on the open market. No difference in the two whatsoever even though some people say they were different. They were not. The same thing with Agent Blue, 5R560 was one of the common names for it. As far as the other ones, Agent Pink, Green and Purple, they were various combinations of 2,4,5-T mostly but also one of them also had some 2,4-D in it. So when I say combinations of 2,4,5-T, as there were different kinds of esters. Some lower volatile, some higher volatile and some of them were mixed together to form some of those others but those were used earlier in the war.
Maura: So, we talk about Agent Orange because, from what I understand, it was the agent that was used on a most widespread basis in Vietnam, throughout the Vietnam Era, so most frequently and for the longest period of time.
Kerry: That’s correct, yes.
Maura: But herbicides for the purposes of VA’s regulation and the statute are what we’re talking about. So, we not just talking about Agent Orange, we’re talking about the other herbicides that Kerry was just mentioning. Agent Orange is just the term I think that’s coined because of how frequent and for how long it was used.
Maura: And why were all of these herbicides used during the Vietnam Era?
Kerry: Two main purposes and that was crop destruction. The government wanted to destroy the crops of the enemy to interrupt their food supply and also to destroy the foliage in the jungles. That’s where a lot of ambushes were taking place so you could open up fields of fire. In essence to provide a little extra safety to our troops so they wouldn’t get ambushed quite so easily.
Maura: So before the herbicides started to be used for these purposes, do you know who was behind the development of these substances?
Kerry: A few different entities were behind, I mean, herbicides and talking about 2,4-D and 2,4,5-T mostly had been around since World War II. Near the end of World War II, they had even looked at using herbicides in a tactical environment as far back as the late ‘40s but also they were interested in using them in the Korean War. They never did as far as we know. But there was some interest in that. So these were herbicides that were in use, but once that they kind of started in the Vietnam Era, Fort Detrick and the Chemical Corps, the Army’s Chemical Corps, kind of started testing various types of different combinations of herbicides to see what they thought would be the best for the jungles of Vietnam. Also, ARPA at the time or DARPA as most people know it now was heavily involved in that research as well. ARPA is the Advanced Research Projects Agency. Now the Defense Advanced Research Projects Agency. So it was a mix of DARPA, the guys at Fort Detrick, and just taking herbicides that were already on the market and figuring out what combinations were the best to use.
Maura: So, it sounds like they were ramped up in terms of their development and in terms of getting together the substances that would be used in Vietnam. But this is something that pre-existed Vietnam had sort of been in formation years prior to that.
Kerry: Right. And just so the audience knows, we could do stories on top of stories on the development. There’s a lot more to it and that’s just kind of the 10,000 foot version but there’s no reason that we really need to go into that level of detail on it.
Maura: So, for however long these herbicides had existed prior to their use, probably just previous to the Vietnam Era when they started to make the specific herbicides that we now know to be Agent Orange and the other types of things that were used. Do you know of any testing of these substances that happened before their widespread use in Vietnam?
Kerry: Yes, they had been testing these throughout the ‘50s in various places. Well, they started testing in the ‘40s. They were testing them in the ‘50s and they were testing them quite a bit in the early years of Vietnam, both in Vietnam. So, sort of while they were using them, they were also testing them, is one way to look at it. They were also testing them in, for example, they tested them in Thailand in 1964 in some pretty large areas. I’m not talking about the Thailand perimeters. In 1964, there was an actual testing phase going on by ARPA at that time because the jungles there were so similar to Vietnam so, they wanted to see how much it was killing the plants, how long it would take, which combinations were the best. But they were tested in some bases in this country. They were tested in New York, they were tested in Fort Gordon in the ‘60s. They were tested in Puerto Rico. They were tested in Hawaii. So, the history of the test is– when I say test, I’m talking about the official test that the Fort Detrick guys were involved with that the military was officially testing them. These were not the only uses of these herbicides.
Maura: So, during these testing procedures that pre-dated the Vietnam War, there would have been people working on the testing that were exposed to these herbicides because in order to perform that testing.
Maura: Okay. And then by the time that these herbicides were being used on a more widespread basis in Vietnam, what was the method that they were used for? So, in addition to the purpose that you explained before which was two-fold, the crop destruction and then also to reduce foliage surrounding areas, how were they deployed?
Kerry: Mainly with about four or so different ways but most people know of them being sprayed out of C-123 aircraft. These were relatively large aircraft that could spray a pretty large swathe in one pass. They used quite a few C-123s for this. They also used some helicopters for a little bit smaller areas to spray. They used what’s called buffalo turbines which are basically truck-mounted sprayers. They were, you know, those were good for roadsides and perimeters, and they also went all the way down to handheld sprayers.
Maura: And so, one of the main operations or outfits that we know was responsible for the deployment of herbicides is Operation Ranch Hand?
Maura: Now, which category did that fall in? Was that mostly through aircraft?
Kerry: Right. So, Operation Ranch Hand was sort of the code name used for the C-123s spraying the herbicides. Most of the other people that used the herbicides were from the Army Chemical Corp. So, the ground spraying that type of stuff was mostly the Army Chemical Corp.
Maura: So, with all these different methods of deployment of these substances, it seems like there’s a lot of hands involved that could have possibly been exposed.
Maura: So, not just the people that are working, you know, actually spraying by hand on the ground but also people working on the planes and the vehicles that are delivering, so to speak, the substances.
Kerry: And in fact, some of the, you know, in the years after Vietnam, there was tons of back and forth between veterans and Congress and VA and trying to figure out how people were exposed, who were exposed. They never came to any solid conclusion, as far as how much people were exposed. A lot of the records were missing, especially the records of the ground spraying as opposed to the C-123 spraying. And a lot of experts had concluded that it was likely that spraying around perimeters of bases probably exposed more people that way than potentially even the spraying with the C-123s. That’s an assumption obviously, we don’t know. Congress eventually gave the benefit of the doubt to everyone as far as exposure goes. So, it’s not something that’s really an issue with Vietnam now.
Maura: So, it’s fair to say that even if the persons who are claiming that they were exposed weren’t on the C-123s and weren’t actually conducting the ground spraying themselves, it’s still very possible that others that weren’t doing those things were exposed and that’s why we have the presumption of exposure.
Maura: Which is what Congress enacted because it’s just too impossible to tell who– in terms of Vietnam, if you had boots on the ground, there’s no way for us to be able to verify that you weren’t exposed. So, we have to extend that presumption.
Kerry: Right. I mean, there were millions of gallons sprayed, so right, Congress expressly in the Act of 91, in the legislative history very clearly says we are giving veterans the benefit of the doubt on their exposure because we just can’t prove who was and who wasn’t and most people certainly, probably were to some degree or another.
Maura: And at some point, the decision was made to stop using herbicides in Vietnam. Do we know around what time that happened and what the reason was for that?
Kerry: There were a few instances of sort of back and forth where the White House and the commanders were kind of hesitant to stop it. And then they were going to stop it, then not stop it, and then they were going to limit the use of it. And so, that– I’d say the details of that history is probably not important but they did eventually stop using it, aerially, in other words out of the C-123s in 1971. There’s some indication they might have used either by permission or not by permission, to a smaller degree after ’71 but generally, the accepted time frame is somewhere around 1971 is when they stopped using it.
Maura: And, at that time, so they made the decision to stop using the herbicides but at that time there were still leftover substances that had not been used. So, what happened to all of the so-called leftover herbicides that the Army decided to stop using, or the DoD in general, decided to stop using?
Kerry: Well, they had huge stockpiles left over in Vietnam. They also had huge stockpiles at that time in Gulfport, Mississippi. Those had been transferred there from a base in Texas but so, the two places that most people know about were the ones left over in Vietnam, the ones left over in Gulfport, Mississippi, eventually, they moved all of both of those stockpiles to Johnston Island around ’74. That move was sort of complete around that timeframe.
Maura: And do we know what happened to them? When they got there?
Kerry: Yes. So, they stayed on Johnston Island until ’77 and in 1977, they were all loaded on to a ship and burned at sea. I believe the ship’s name was the Volcanus. You might not quote me on that but if my memory serves me right, that’s the name of the ship. But anyway, they were burned at sea, at least all the Agent Orange was. Some of the Agent Blue was not able to be burned at sea because of the arsenic content in it. That’s probably a very little known fact but all the Agent Orange was burned at sea in ’77.
Maura: So, we’re clearly talking about, I think everybody knows this, we’re talking about a substance that’s very harmful in a number of different ways depending on how people are handling it and how much exposure you have to it. So, one of the things that makes up a lot of these herbicides, and you can correct me if I’m wrong, but I think it’s a common element in all of them is dioxin?
Kerry: Well, not in all of them. There’s multiple dioxins on the planet. The most powerful one is TCDD. That’s short for 2,3,7,8-TCDD and I’ll try to pronounce this word. All of that is short for Tetrachlorodibenzo-para-dioxin. That’s why we say TCDD because it’s just too hard to pronounce. But that was a contaminant in 2,4,5-T and so since most of these except for picloram and cacodylic acid were different formulations of 2,4,5-T, then most of these, all your Pink, your Green, your Purple, your Orange, all had contaminants of TCDD in them. And that dioxin, prior to ’71, when more emphasis started to be put on use of herbicides in Vietnam, it was discovered that that was a teratogenic, if I’m pronouncing it right, it had a teratogenic effect, in other words it produced birth defects and that sort of raised the red flags, and that’s why it was eventually stopped being used in ’71 and that’s jumping forward a little bit, but that’s also why the government banned all of its use in 1985. Most people get that a little confused. The VA will come back on a lot of claims if you’re not talking about Vietnam and if you’re talking about a window outside of the Vietnam Era, say ’76, ’77 and VA would say, “We stopped using it in 1971.” That’s not true. We stopped using Agent Orange in Vietnam in 1971 but 2,4,5-T based herbicides were still used on various bases around the world, both military and civilian. That wasn’t stopped until ’85 and that’s when all of it was banned. There were some up prior bans such as on food crops that type of thing prior to ’85.
Maura: So, around then, around 1985, actually I think a year before in 1984, Congress passed something called the Veterans Dioxin and Radiation Exposure Compensation Standards Act.
Kerry: Right. Well, I mean, back up just a bit and say that the stoppage in 1985 had nothing to do with the military. No one could use it after that point. But that’s just a little history on 2,4,5-T herbicides. But you’re right. The Congress finally acted in 1984 with that Act that you’re talking about. But I’ll let you ask any questions you want about that Act.
Maura: So pretty predictably, what is that Act about? Can you give us maybe a couple of things that precipitated the Act and what the effect of it was at that time?
Kerry: Well, the– basically what precipitated it is a really, really long history but that sort of the VA and veterans, and Congress going back and forth as to who is exposed, how much they were exposed, was it bad for them, was it causing people sickness and that’s kind of what precipitated the Act in 1984. Now, the Act of 1984 dealt with herbicides or dioxin and radiation. So in 1984, they were creating statutes to help radiation exposed veterans from World War II. So, something to put in perspective, obviously we’re not here to talk about radiation. That Act with regard to herbicides essentially, now I had said, it was the dioxin and radiation compensation. So, that’s important. It didn’t say Agent Orange. It didn’t say herbicides in general. It’s talking about herbicides containing dioxin. So basically, that Act made or instructed VA to study the material, study the herbicide and create regulations as to who could get benefits, what benefits they could get for what diseases and that type of thing. It wasn’t the Agent Orange Act of 1991, which a lot of people are familiar with, but that was the very first time Congress acted on Agent Orange.
Maura: Okay. And shortly after, we had the occurrence of the Nehmer class action. How did the Act that we were just talking about, the Dioxin and Radiation Exposure Compensation Standards Act, how did that sort of feed in to what eventually happened with Nehmer, if at all?
Kerry: Good question. So, a lot of people that have been in this business and affected by this know about Nehmer. Nehmer was not brought on by the Agent Orange Act of 1991. It was brought on by the one in ’84. So that Act kind of told VA the kind of standards to use when looking at what disabilities this cause, what standard of proof do you want to use. And it was basically a statistically significant standard or a positive association. Essentially, that meant just as much as evidence for as against an association. That’s kind of putting it lightly. But what happened is when VA wrote its regulations, they wrote a cause-and-effect criteria into their regulations. So, an organization called NVLSP at the time brought lawsuits on behalf of three widows. One of them was a lady named Beverly Nehmer and that’s how you get the Nehmer lawsuit. But that essentially challenged VA’s regulation because the challenge was their– the cause-and-effect standard was higher than the statute. Higher than what Congress intended. There were other things that the litigation attempted to do but that’s one main area that it prevailed in. So, the courts out in California, there was no veterans’ court at the time. So, the only place to take this was private courts or in courts or–
Maura: Non-Specialized Veteran’s Court.
Kerry: So, the courts looked at it and they agreed 100% that the standard they used was incorrect. It was too high of a standard. So, what they did was essentially they invalidated the regulation and told VA to readjudicate any claims that have been denied under the then invalid regulation.
Maura: So basically, even though the Act had said not the cause-and-effect standard but the close to the at least as likely as not standard, the positive association standard. For a while, VA was adjudicating claims based on that regulation. And the regulation required that higher standard. Now, this is all predating the presumption that we have today of exposure. We sort of talked about it before. The presumption is basically a removal of the nexus element. So, instead of having to prove any association between your current disability and your exposure, VA presumes if you were in Vietnam during certain dates and if you had boots on the ground in Vietnam they’re not going to require any proof.
Maura: But back in 1984, the Act was requiring of the positive association and the regulation got it wrong by requiring that cause and effect.
Kerry: Well, the claims that were adjudicated back then since there were no presumptions still required the basic in-service exposure, the current diagnosis, and the nexus between the two. So, that Act, the ’84 Act didn’t necessarily reduce the standards of proof for service connection but it set up the eventual research criteria. The VA’s mechanism to determine what diseases would be added as a presumptive, and the standards that would be used for those diseases. So obviously, if you’re going to use a higher standard like a cause and effect, you’re going to get very few diseases if any added to the presumption.
Kerry: Because short of experimenting on humans, you’re not going to come out with a cause and effect. It’s just a very high standard. That’s why the benefit of the doubt standard was so important there. That’s really what helped NVLSP prevail in the Nehmer lawsuit.
Maura: And so, Nehmer helps not just the Vietnam veterans who were exposed but also the class can include survivors or family members of veterans as well.
Kerry: Yes. So, not to get too much into Nehmer but as far as who gets benefits under Nehmer. First, it goes to class members, a Nehmer class member. A Nehmer class member is the veteran who served in Vietnam or the veteran’s surviving spouse, child or parent. So, any of those class members can end up receiving benefits under the Nehmer rules. But also, a class member’s spouse, child or parent can do the same. So, when you’re talking and that’s a little complicated. It may not sound it but it’s– we don’t need to get in to all that but just know that a veteran’s spouse, child or parent and the veteran are all class members. But the class member’s spouse, child or parent can also end up getting benefits. Those are cases where the veteran is no longer alive. There were claims filed or at least claims for what Nehmer defines as a claim.
Kerry: So, not a whole lot of those going on now because the big Nehmer readjudication is over.
Maura: Okay. And then, after Nehmer, so we’re sort of building up to that presumption that was eventually established. There was the Agent Orange Act of 1991. Can you tell us a little bit about that? And how that ties into this whole history?
Kerry: So, that Act and a lot of the Nehmer final stipulation and order that was signed by VA and the counsels, a lot of that came about very, very at almost at the same time as the Agent Orange Act of ’91. So, the Agent Orange Act of ’91 established presumptions for certain disabilities. But then also, required VA to contract with the Institute of Medicine every two years to determine if there was research that existed out there between the herbicide agents and certain disease that showed, “Hey look, there’s an association between this disease and the exposure.” So going forward, every couple of years the IOM had to put out its report. And they would classify various diseases in different categories. Depending on which category if it was high enough up in the– I guess you could say the statistical association between the disease and the herbicide. Then, VA could add that disease to the list of presumptive diseases. That’s how we got diabetes and a whole bunch of the disabilities on the presumptive list.
Maura: So, then it sounds like up until 1991, there were no presumptions at all for any particular conditions.
Kerry: Not under the Agent Orange Act of ’91.
Maura: Right. And then so, after that on an every two-year basis per the contract with the Institute of Medicine, there were even more reveals going on about people just finding out new information or bringing to light maybe old information about what can be caused by exposure.
Kerry: Essentially, right, the various entities you name it what would be doing researched on topics of 2,4,5-T or other agents. And determine, the longer time went the more people they had to kind of do research on. Some of these diseases take a while to catch on to somebody. So, that’s why you’re getting a little bit more added every few years. But now the tie to that and Nehmer, it was that under the Nehmer guidelines VA was to readjudicate any claim that had been denied for diseases that were added in the future. So for example, heart disease was added in 2010. There was over about 150,000 of those cases that required readjudication when VA added ischemic heart disease to the regulation. Even though that the heart disease was added under the Agent Orange Act of ’91 and the Nehmer court battle started with the ’84 Act. So, Nehmer really drove a lot of what we have now with herbicides.
Maura: So, it sounds like a pretty big undertaking for VA when it comes to light that there’s a condition that should be on the presumptive list and is added to the list. They have to now backtrack several years, decades really, to figure out if there’s evidence in a claims file or if they were on notice that a veteran had this particular condition. They need to readjudicate that claim. And also, from what it sounds like, they also need to see if there was a diagnosis and then even at the explicit claim they need to adjudicate whether that person is entitled to service connection.
Kerry: Right. There’s– under the Nehmer rules, there’s multiple ways to prevail obviously the easiest way is if you filed the claim prior to that disease being added to the regulation and it was denied. And then they add that disease later. But there are some other ways to show that someone has a Nehmer claim. I don’t know that we need to get in to all that because it gets pretty deep into the weeds. But, Nehmer is a little bit more relaxed on what a claim is than most VA regulations.
Maura: Okay. And we sort of alluded to this a little bit earlier. We’ve been talking about Vietnam quite a bit but obviously herbicides were present and used in a lot of other locations. Vietnam is the only location where if a veteran served there, there’s this presumption, the “boots on the ground” presumption.
Kerry: Sort of.
Maura: There’s others?
Kerry: There’s others.
Maura: Okay. Do you want to talk about a couple of others? I’m thinking of the Thailand–
Kerry: As far as the presumption goes, as far as the presumption of exposure, you got the Korean DMZ in the late ’60’s or early ’70’s. I believe ’68 to ’71, I don’t have the exact dates in front of me. But– so, if you were in a unit that was on the DMZ between those dates, between ’68 and ’71, then you’re presumed exposed.
Kerry: Now, and that’s a little tricky, I say, if you were in a unit that was on the DMZ. You just need to show that you were on the DMZ. Where the units come into play is because- and it’s written in the law that VA will check with DoD and determine what units were there. Certain units were known to basically work on and around or not in but on and around the DMZ. And it’s not the unit that established this presumption of exposure, it’s because those units were known to be on the DMZ.
Kerry: So, it kind of makes it easier if you were in those units but if you were in some other units, say three miles away from the DMZ or five miles away from the DMZ. If you can credibly show that you went to the DMZ, the presumption is still supposed to apply at that point if VA concedes that, “Yes, we believe you were at the DMZ.” So, it’s service at the DMZ that drives a presumption not necessarily service in one of the units.
Maura: But that’s the same type of presumption that’s extended to Vietnam veterans.
Kerry: Right. As long as you fit those qualifications. Thailand does not have a presumption per se. It’s a case-by-case scenario as with just about any other location.
Maura: And we did a–
Maura: There’s a lot of exceptions.
Kerry: So, there’s always exceptions.
Kerry: And we also have the C-123s now. Not a whole lot of those cases. Those were situations where the C-123s after the Vietnam War was stationed back in the states because they sprayed so much using the C-123s. If you were in one of those units and routinely worked on C-123s, you could be presumed exposed in that scenario as well.
Maura: Okay. We did a video a few weeks back that talked about Agent Orange in Thailand, specifically. A lot of it deals with, what Kerry was talking about, how it’s not a presumption per se and what the sort of factors that VA will look at on a case-by-case basis. If a veteran served in Thailand and claims that they have a disability that’s due to their exposure to herbicides there. So, definitely feel free to take a look at that. We’ll probably post it in the comments here to this video as well. So, that should also contain some information that’s more specific to Thailand. So, in addition to the Vietnam presumption and the presumption that we just talk about that extends to Korea, there’s also a lot of veterans that may have been exposed that are not included in the presumption. Can you talk a little bit about first the difference between Brown Water and Blue Water veterans? And how the presumption works in that instance?
Kerry: Okay. So, Brown Water veterans are basically veterans that served on a ship that went up the rivers in Vietnam. That’s considered in-country service. So– and you have to show that you were on the ship but if– once you get over that hump, that’s the same as being “boots on the ground.” Blue Water veterans are a little bit different. You have instances where a ship may have docked ashore or a ship may have anchored offshore in a bay or ship may have served miles off the coast. Those are a little bit more tricky. If your ship docked ashore, you just need lay evidence, which can be a veteran’s credible statement that they left the ship and went ashore because everyone did. You’re not going to be out at sea for years and dock to a shore and not leave the ship.
Kerry: Unless you’re in a brig or something. If you were anchored offshore and the ship sent people ashore, in other words, that the VA has records of the ship sent folks ashore. The veteran can usually state credibly that he or she was part of the people that went ashore. VA could potentially concede herbicide or presume herbicide exposure there. If they concede that you went ashore. That’s kind of the same thing with the ships further off as well.
Maura: Okay. While we’re talking about the Brown Water/Blue Water distinction and specifically about Blue Water vets, we have a question from Virgil. Virgil thanks for the question. The question is do you think that the 12-mile limit will be extended for Blue Water Navy veterans at some point?
Kerry: Okay. First and I appreciate that question Virgil, as of today there is no 12-mile limit because the Blue Water legislation, if that’s what you’re referring to, has not been passed. Nor have the courts implemented or issued any decisions that implement the Blue Water rules. The 12-mile limit is some discussion of if VA was to add all Blue Water veterans to the presumption, at what point are you considered presumed exposed and at what point not. And so, the 12-miles off coast has been discussed as that may be where the waters of Vietnam ended. We don’t know yet. Right now we have to get the Blue Water guys presumed before the 12-mile limit will even be an issue.
Maura: Okay. And so, while we’re talking about that that was good timing for that question because I was just about to ask what the status of the Blue Water legislation was at this time. I know we’ve given some updates as we go. Sometimes in our Facebook Live discussions that we have. Do we have any current updates as of today? Anything different?
Kerry: What we know is, I believe HR 299 is the bill but I could be wrong there. But it — the bill has already passed the House, went to the Senate. The Senate had a hearing on the bill and that’s where we stand at the moment. We don’t know for sure whether the Senate is going to pass it. If they do, for those that aren’t familiar with the legislative process, the same version that was passed in the House has to be passed in the Senate. So, if the Senate does end up passing one, let’s say it’s different and it has to go back to the House. Okay? And they have to pass the same one. So, during the hearing we know that VA was kind of pushing back against it as we all suspected they would. But whether they’ve convinced the Senate to stop their action or not, we don’t know. I’m sure someone does but we don’t.
Maura: So, it sounds like we’re still in the midst of it, still waiting for the next step to happen.
Maura: So, we’ll certainly keep everybody updated on that because we know that a lot of people are interested in the course of that legislation and certainly our office. So, we’ll be keeping an eye out for that. I want to conclude by talking about something related to Agent Orange that we may have been seeing more recently. So, from what I understand and maybe you can explain this a little bit better but studies have revealed that TCDD which we talked about earlier, which is an active ingredient in Agent Orange, has also been found in air samples from emissions at burn pits.
Kerry: That’s correct.
Maura: Can you talk a little bit about maybe what that means in terms of, will we ever see a similar presumption that’s been created for the Vietnam veterans, for burn pit veterans? Is the evidence just not there yet? What are your thoughts?
Kerry: If it’s left up to VA, I can probably safely say, we will not see those presumptions. But the presumption of service connection, say for lung cancer as an example, one of the diseases listed in for Vietnam vets. That presumption is invoked when a veteran is exposed to a herbicide agent. One of the herbicide agents as defined in the regulation is TCDD because it says 2,4,5-T which is the herbicide and its contaminant TCDD. So, TCDD here and if you’re looking at just that herbicide, that’s the culprit, that’s the contaminant, that’s the dioxin. The exact same dioxin, as well as a bunch of others and a bunch of other toxins, were produced by the burn pits. Now, DoD and VA, will I’m sure at some point when this comes to a boiling point will claim that it wasn’t enough, that’s neither here nor there. What I want people to understand is the presumption is invoked for service connection when you were exposed to the agent and then have the disease.
Now, even though that may not be the way VA likes to treat it. A plain reading of the law is that’s how it should be applied at least that’s our opinion. So, if an Iraq or Afghanistan veteran was exposed to the same stuff and VA concedes they’re exposed to the same stuff. They should, for all practical purposes provide the presumption of service connection for the same disease that would be given to, say, a Vietnam veteran. We are pushing that issue and have been for quite some time. VA is standoffish about it and I don’t know that they’ve issued any statement whatsoever officially about it. But it’s something for Iraq and Afghanistan veterans to keep in mind. That’s just one tool that we’re trying to use to push VA and even Congress, if it comes to it, into looking at what can be done about victims of burn pit exposure. Right now, VA is claiming that now it does– there’s no proof that A caused B. I suspect there will be. It’s probably going to take a length of time. Unfortunately, like it took for Vietnam veterans or World War II veterans. We’re trying to use the law on the books right now based on the exposures we know about right now to help the guys out. And that’s just one extra tool in our query that we’re trying to put to use.
Maura: So, it sounds like something else that we’re definitely actively looking into and keeping tabs on and we’ll certainly provide any updates in the future. Were there any other questions? So, if that’s it for the questions, Kerry, thank you so much for teaching us about the history of Agent Orange today. Thank you everyone for tuning in. And as I said, there might be some more information beyond this discussion that will be posted in the comments here. So definitely, feel free to check it out and reach out with any other questions. Thanks again for joining us.
- The Agent Orange Act of 1991
- VA Mission Act Goes into Effect
- Appeals Modernization Act – The New VA Disability Appeals Process
- VA Mission Act of 2018
- “Blue Water” Navy Vietnam Veterans Act Signed Into Law
- Are Vietnam Veterans the Only Veterans Exposed to Agent Orange?
- How Many Vietnam Veterans Have Been Affected by Agent Orange?