Matthew: This is Matthew Hill from Hill & Ponton with Commander John Wells. We appreciate you all joining us. We’re looking forward to talking to you all today about blue water and the changes with Agent Orange after the Gray decision and where we’re going from now.
For those who don’t know me, I’m a private attorney with the firm, and we represent veterans across the nation. We’ve fallen into representing a lot of veterans with Agent Orange issues.
John: I’m a retired Navy commander and also Executive Director of Military-Veterans Advocacy. I worked along with John Rossie of the Blue Water Navy to try to get Agent Orange benefits for Navy vets. We’ve done that both through the courts, Congress, and occasionally meeting with the VA.
Matthew: There are a couple different topics we’re going to cover. We’re going to start with the basics and then look at the case that, frankly, put us where we are – the Haas case – where the VA was able to make what we would consider arbitrary decisions on where the line is.
Then we’re going to look at concepts of brown water and blue water and the Gray case, which is where we were able to get the VA’s interpretations of at least harbors and bays. After that, we’re going to talk about where the law is now and what we should do to use it.
First of all, with the Agent Orange Act, veterans were fighting the VA in Congress for years to recognize the deleterious effects of the Agent Orange to those who were exposed and all the disabilities that came from that. Finally, in 1991, Congress came out with this act that allowed for presumptive service connection for certain disabilities.
The act actually called for a two-part presumption. The first part was if a veteran had a service in Vietnam, they were presumed to have been exposed, and if they were exposed, they were presumed to be service-connected for any of the diseases on the list, which now I believe total 15. But the catch then, as is frankly still is, is what is service in Vietnam? That was loosely defined as boots on the ground and inland waterways.
For the first 15 years or so, the presumption was handled rather loosely as far as what service was in Vietnam. There were plenty of decisions showing that when a veteran had a Vietnam service medal, that equaled service in Vietnam. But there were other ones demanding much higher proof of boots on the ground.
All this came to a head in 2006 in case called Haas, where a veteran was claiming he was off the shore in blue water and he was exposed to Agent Orange and he should be getting this presumption as others were, who just had to have a service medal and not actual proof of boots on the ground.
The fight was because the VA was arbitrarily drawing a line right down the coast, saying, “If you were off the coast, then you were not presumed to have been exposed.” But if you were on shore, even for a couple hours, then the presumption was that you were exposed to Agent Orange. It didn’t matter how close to the shoreline you were; if you were not on the other side of that sand, then you didn’t get the presumption.
John: Just a little bit of history. This all started in 1997, when the General Counsel’s Office looked at the statute and said, “Well, it says, ‘Airline or naval service in the Republic of Vietnam.’” They assumed that to be the landmass, not realizing that the base, the harbors, and the territorial seas were actually part of the sovereign territory of Vietnam, and in fact, the United States had recognized that in two separate treaties.
Matthew: What I believe is quite a reach is that the VA said not only if you’re offshore but also if you are in a bay or harbor, they did not consider the major harbors to brown water or inland waterways but said that they were actually part of the open sea, even though they were all frankly within the coastline of Vietnam.
This was their reasoning. They just said that they were open to the sea. They were deep water, and as a result of that, they’re saying that these harbors were open water and therefore veterans who are on a ship in one of these harbors were not presumed to have been exposed to Agent Orange.
With the Gray case, we had a veteran who was on a ship in Da Nang harbor. He never went ashore, but his boat anchored there several times and actually tied up to another ship that was docked. Our argument was, “Look, this is an inland waterway. It’s not outside the coast. It’s surrounded by land on all three sides.” We were saying that VA’s interpretation of their own regulation was overly broad as to what blue water was and that bays and harbors are brown water and shouldn’t be called blue water.
John: Actually, that makes a lot of sense, because despite what the VA kept saying, those harbors were not really deep-water ports. Da Nang harbor varied between 27 and 32 feet. The Nha Trang harbor, which is about the deepest, was about 90 feet. This Agent Orange mixed with petroleum would wind up floating, falling to the bottom, and the effect of the ships entering and leaving port and actually anchoring would continuously stir this up, so it would become the gift that kept on giving.
In addition, all of these harbors have rivers running into them, and the Agent Orange that was sprayed on the riverbank or on shore was washed into the rivers and would then float right on out to the harbor, where it would be taken up into the shipboard distillation plant.
Matthew: Fortunately, the court agreed with us that the VA’s interpretation was arbitrary and was irrational and that the presumption, as it was originally created in the original Agent Orange Act, was related to exposure, not the features of the topography of the coast or the ground.
The court said that the VA had to basically tell veterans that they are given presumption or not due to whether there is a likelihood of them being exposed. The VA came out and said this is blue water because it’s open to the sea, and didn’t give any consideration as to whether there was a direct exposure or direct spraying in the harbors, or I think for us, even more importantly, whether there were rivers feeding into them that were dumping the dioxin directly into the harbor.
John: There’s no question that Matt Hill and his group did a fantastic job on Gray and a fantastic job of convincing the job that what the VA was doing was arbitrary and capricious. The court actually called it irrational. That has forced the VA to do a lot of soul-searching, and they have been directed by the court to revise the regulations.
Matthew: That’s where we are now. The case is back to the Board of Veterans’ Appeals, but what we’ve seen in that case and several others is that the Board of Veterans’ Appeals is waiting and looking towards the Central Office to decide how it’s going to interpret the regulation at this point.
When they do, the court was very explicit, as we just stated, that the interpretation has to be based on exposure, where the Agent Orange was sprayed, and what the likelihood was, and they can’t just come up with these arbitrary discussions of the depth of water and openness to the sea.
Incidentally, as John said, the water is not that deep, but the VA didn’t even define what deep water was or how deep the water needed to be to dilute the dioxin so much that it wouldn’t expose a veteran.
We are in a holding pattern as advocates and, of course, as veterans as far as what the VA is going to do, but the hopeful thing here is they have to do something substantive. They can’t just throw something else out here arbitrarily and say the same thing in new language.
John: We do know that they came out with a regulation that didn’t have a lot of sense to it and didn’t answer what the court had directed, and I think Matt will address that later on. Through our efforts, we were able to get that thing pulled, even though it did cause a couple more Board of Veterans’ Appeals cases to be denied because they were relying on that draft regulation that was never really published.
Now, I did meet with Sloan Gibson, the Deputy Secretary of the VA, on July 6th and laid out the blue water case to him, not just for the harbors but all the way out to the territorial seas and beyond. We have a follow-up meeting scheduled on Friday, September 18th, with Sloan Gibson and Rob Nabors, who’s the VA Chief of Staff. We’re hoping to get some kind of substantive information from there as to exactly what direction they’re going.
I can tell you one thing. If they go the wrong direction, there are cases in the pipeline and they’ll still hear from us.
Matthew: Yes. It’s a great position we’re in as a group in that John and I ended up getting couple cases where the BVA, the Board of Veterans’ Appeals, denied veterans based on an unpublished draft interpretation of this regulation. Basically, it was the same thing with a couple more sentences. It was talking, again, about the depth of water and it was talking about openness to sea, none of which were defined.
One of the more amazing things I’ve seen in this practice is when John sent a rather stern missive off to the Central Office. They came back, and they said, “We never published that and that was never meant to be our interpretation.” From my stance, it’s pretty clear that the VA realizes that they’ve erred here. The state of the law is incorrect, and I’m hopeful that they’re going to make the right decision with this when they reinterpret it.
While we’re in this holding pattern, though, I think, as veterans and advocates, we need to be proactive in what we’re doing. I think Gray gave us a couple good takeaways. The first was, again, it’s the VA’s burden to state how harbors are not inland waterways. If you were in Cam Ranh Bay or Da Nang or any of the other waterways and you don’t have positive evidence that Agent Orange was used there, at this point, it doesn’t matter in that the VA is the first one to have to show that it was not there.
The court was very explicit that the VA had the burden to show why these harbors were not inland waterways, and that’s extremely important because finding this information, as far as where it was sprayed and when, is not easy. So they’re going to have to show they did this to prove that there wasn’t exposure there.
A couple of other things. Agent Orange was in inland waterways, speaking of rivers. The VA had always said that any inland water ship patrolling up and down the rivers would have been exposed to Agent Orange, because some of them are actually spraying Agent Orange. But others of those were not, and the presumption was they were exposed because they were in that water.
Well, if you look at any major court we have here, they’re all fed by large rivers. With Da Nang, you have the huge river from the south and then one from the northeast. Can Ranhhas a large river coming in from the north, as well. We’ll get back to Mekong Delta. Vung Tau Bay and Ganh Rai Bay; all of these bays and harbors are fed by rivers. Our argument is that what’s in those rivers is Agent Orange, and therefore they should be recognizing that runoff in the bays and harbors.
John: Matt is exactly right. That runoff has carried that Agent Orange – remember, it’s mixed with petroleum – out to sea in a hydrological plume. The plume is where the salt water mixes with the fresh water, and it actually becomes quite brackish. Those rivers, especially the Mekong, will go out quite a distance. In fact, the Mekong has about the same attributes as the Mississippi, and the hydrologists tell us that it will go out probably a couple hundred kilometers in a couple of weeks. It’s a very powerful river.
By comparison, the Mississippi kept the oil out of the Mississippi Delta during the BP Gulf oil spill. It went other places. In fact, it was pushed all the way as far as Florida, but it did not enter the delta.
The same thing happens, especially during a monsoon. All these rivers would just dump all of the dirt, the debris, the grime, the whatever, including Agent Orange mixed with diesel fuel, out into the way.
One of the problems we’ve had in the past is getting the VA to understand that all these rivers would carry out to sea, discharge into the sea, and they would discharge it with the Agent Orange mixed with petroleum. I think during the meeting with Sloan Gibson, a light bulb went off. He understands it. He gets that.
It’s just a matter of it constantly being fed. During the monsoon season it’s worse, but the monsoon season, which we’re going to talk about in a second, was actually extended because of cloud-seeding operations that we did in the central highlands. It was called Operation Popeye if you want to look it up. We actually caused more rain to fall, more of the Agent Orange to wash into the rivers, and made the rivers greater torrents that would push it out to sea further.
Matthew: One of the jewels of this decision is the discussion on river mouths. For all the sailors out there, I think you have to not think of this as a nautical term as much as a legal term, in that the Court of Veterans’ Appeals is saying that basically, the river mouths may extend well beyond the actual physical borders and essentially it’s where the brown water stops and where the blue water begins. As John was just saying with the Mekong Delta, that could be hundreds of kilometers offshore.
This is an area where I think veterans are ripe to win their cases. We represent probably a dozen vets whose ships were off the mouth of the river. The VA has been denying those by saying, “Well, on its face, the deck logs say that it’s not in the river. It says, ‘Off the river.’”
Nautically, that might be correct, but we now know from a legal standpoint that it doesn’t matter what they’re saying – on the river, off the river, in the river mouth. What matters is what that river looks like. When does the silt end? If it ends before it gets into the ocean, then the VA probably wins. But the majority of these rivers, it’s not that way. The Mekong Delta I think is the most graphic example of that, but it’s clear that almost all of these rivers have silt running out to sea and the brown water exceeds the physical boundaries of the land.
The other takeaway – frankly, this isn’t so much a takeaway from Gray as it is an untested theory that I would argue – goes like this. If your shape is on the ship registry with the VA showing that it was exposed to Agent Orange, meaning that it was in an inland waterway, yet you were not on that ship at the time of exposure but on it a couple years later, I would argue that you should be entitled to the presumptive exposure to Agent Orange, as well.
The thought is if you look at the history of the use of Agent Orange, we stopped using Agent Orange well before our troops left Vietnam, yet if you look at the way it works, if a soldier was there in Vietnam, boots on the ground, in 1973, even though we were not spraying Agent Orange at that time, the person is still entitled to the presumption of exposure. That to me only means one thing, and that is the VA is counting that the residuals of exposure count, instead of actually being sprayed.
I would argue in this case that if your ship is on the registry and even if you were not on it at the time it was exposed up in a waterway, you should still argue that the residuals are there on the ship, as they would have been on the land when a veteran stepped on land.
John: To give an example of how that works, there was a harbor study to figure out why the coral was dying in Nha Trang harbor, and 20 years after the end of the Vietnam War, they found traces of Agent Orange in the bottom sediment where it had impinged on the coral. So that stuff lasts for a long time.
There was a case where Monsanto dumped some Agent Orange off the coast of New Jersey illegally, and they found it in seafood ten years later over 150 miles from shore, which brings up a good point. We’re remediating Agent Orange right now, paying good old U.S. taxpayer dollars to do that in Da Nang harbor. It gets put into piles and eventually carted off to somewhere.
In the meantime, you have rains. It washes back into the rivers and into the harbor where all the fish farms are. We did some research and contacted the FDA to see if they tested for the Agent Orange dioxin. They do not and, by the way, they only test 1% to 2% of the Vietnamese seafood, and most of it does not meet the sanitation or industrial waste standards, as well.
Without trying to get in trouble with the Vietnamese seafood industry, I do recommend that you see where your seafood is coming from, either in the grocery store or in a restaurant. If it’s coming from Vietnam, steak, chicken, or pork might be very good alternatives for you to consider.
Matthew: John’s become a vegetarian.
John: I still eat good old American beef.
Matthew: Let’s talk about territorial seas, John.
John: A lot of times, people don’t understand exactly what the territorial seas are, so let me explain this map you’re looking at. The bold line is the Vietnam Service Medal service area. It’s roughly 100 nautical miles from shore. That, up until 2002, when the VA implemented that General Counsel’s opinion, was the line that you had to cross to get the Vietnam Service Medal and also to get the presumption of Agent Orange exposure. Once the VA implemented that General Counsel’s decision, of course, all that went away.
The most inbound line that you’ll see is the red line. Basically, you draw a line and connect the dots between the outermost islands of Vietnam. All of that under international law is considered to be inland waters. From that red line, the baseline, you’ll see the dashed line. That’s 12 nautical miles out, and that is your territorial seas. Anything landward of the dashed line is considered territorial seas, and that’s what the bills that we’ve been pushing here for a couple years would extend the presumption to. The current bills, by the way, are H.R.969 and S.681.
You will also notice that those lines end at the 17th parallel, and that’s because the original Agent Orange Act says, “Within the Republic of Vietnam.” For example, if you had a submarine off Hai Phong doing electronic intelligence gathering or monitoring the Chinese off Hainan Island, they would not be covered by the bill. But any ship that crossed into the territorial seas would be.
You’ll notice in the south, it’s wider. It actually goes out almost to the old DSM line. At first, that gives us a little difficulty, and that’s when we started talking to the hydrologists, who assured us that the Mekong River was powerful enough that it pushes the Agent Orange out to the territorial seas line and actually further beyond.
Also, depending on the monsoon and the seasons, the wind will shift and sometimes, it will push the Agent Orange and the waves up the coast. Sometimes, it will push them down the coast. The hydraulics just tell us that basically anybody in the area marked with that dashed line would have been exposed to Agent Orange or to the hydrological plume that carried the Agent Orange out to sea.
The final thing I want to mention is that most of the territorial seas and all of the bays and harbors are within the 30-fathom curve. That means that basically, they were in the area where ships would anchor. If you would all remember, this was back before digital computers that are used as much for working and gaming nowadays. It was all analog, so the ships would tend to anchor so that they would get a much more stable fire control solution. Because of that, every time they would anchor, that would churn up sea bottom, and those of you who’ve been out there know what happens. Also, you have the ships entering and leaving port. When they do that, that churns up the sea bottoms, as well.
As Matt mentioned earlier, these deep-water ports really aren’t deep water. They’re actually quite shallow. All that stuff would continue to churn up, and it became the gift that just kept on giving.
Matthew: I guess we should frame this, though. Right now, what we’re hoping to be resolved is the concept of inland water ways capturing all bodies of water in the coastline, with the harbors and bays. The next step here is the territorial seas. I think John is looking to do that all in one, as far as getting it extended all the way out to territorial sea.
The Gray opinion didn’t give us that much. Frankly, it could not because it was from the Court of Appeals of Veterans’ Claims. The court that presides over that is the Federal Circuit Court, and they are the ones who said that Haas is all right and that you can arbitrarily draw a line offshore.
John: That’s exactly right. We have hopes. There were some issues with Haas that we would hope at some point would allow us to get that overturned.
The other thing is that in working with the VA and my meeting and hopefully my upcoming meeting with Sloan Gibson, I’m hoping he’ll just bite the bullet and extend all the way out to the territorial seas and beyond. He doesn’t have to under Gray, but there is always the possibility that they will.
The other good thing is that currently the bill pending before Congress is projected to cost about $1 billion over ten years. There’s a separate law that was enacted in 2010 that requires us to find an offset to pay for that bill. It was part of the deficit control bills that were enacted by, I think, the 111th Congress.
The neat thing is that if they give us all the bays and harbors in response to Gray, that’s going to pull the cost of that bill down to about $10 million a year, or $ 100 million over ten years, and it’s a lot easier to find pay-fors for that than it is for $1 billion.
The other thing that I do have to emphasize is that, even if win the bays and harbors, or even if the VA gives us the extension all the way to the territorial seas and beyond, we still need that legislation because, don’t forget, we had these benefits at one point, and the VA Secretary took it away with the stroke of a pen. What one VA Secretary can give, another one can take away, so even if the VA gives us everything we ask for, we’re still going to be asking the Congress to pass H.R.969 and S.681 so that we can make sure it’s never changed.
You all can help, because as I go around the Hill – and I’ve visited hundreds of offices on the Hill – they do respond to congressional contacts. Now, you may just get a form letter because they get so many contacts that they have to do that, but they do respond. They do keep a tally. I can tell when I walk in there, a lot of times we’ll get a very good reception. They’ll say, “Yes, we’ve heard a lot from our constituents. Come on in. We really need to find something more about this whole situation.”
When we first started doing that, they weren’t hearing from their constituents, and it was not that warm a reception. We had to come in and make the case harsher. Now they’re looking at it not only with an open mind but with a mind of trying to figure out what the whole thing is about and how they can best help and help their constituents. The process does work. It takes a while, but it does work.
Matthew: I’d add to that as well in that I’ve just been amazed watching this C-123 aircraft debate over the last couple of years as far as how they developed a groundswell to get recognized that they were exposed to Agent Orange, even though they were Stateside, but they were using the old Ranch Hand aircraft. I think we’re talking about 4000 individuals total who were on there.
What struck me was the more negative news, frankly, that the VA got, the VA wanted it to go away. I think they ignored it for quite some time, but in the end, there weren’t any studies done or anything on the VA’s behalf, but they just wanted the whole thing to go away. I look at that and think that that was 4000 people. I think we’re talking about a group of 80,000 here as far as Blue Water vets.
John: There was one study done. The Institute of Medicine did fund a study saying that these guys were exposed. By the way, the Institute of Medicine presumes the fact that the Agent Orange has gotten into the estuarine waters and also that the distillation process did not remove the dioxin; it actually enriched it by, I believe, a factor of ten.
We had some good public relations. In fact, you might all want to get on to the Virginian-Pilot site over the next couple days because we anticipate that there’s going to be something coming out from them as well. They have an agreement with a group called ProPublica. It comes from the New York Times. So we’re hoping for some more good exposure in this situation.
I have to tell you that I worked with the reporter on this, and he as just fantastic. They held us to a high standard of providing accurate information, as they should. They asked a lot of questions and they did a major investigation, so I’m looking forward to what I think will be a good story.
Matthew: I think that’s the key of what we can all do as far as keeping the pressure up through this trifecta, contacting Congress, writing to the Secretary, and whatever reporter’s attention we can get, we keep going.
I don’t know the Secretary, but my impression is that he’s a practical man and he’s a pragmatist. He didn’t come into this job with any axes to grind. He’s looking to do things right. The bigger the media spotlight, the bigger the Congressional spotlight we put on this, the more he’s just going to make it go away so he can move on to other issues, so I think we’re in a good position right now.
Of course, the fourth part is the court, through the Gray decision, making the VA act there. So there’s a lot going on in what I consider the right direction here.
John: Yeah. By the way, when you look at Congress, we now have 264 co-sponsors. That’s over half the House. We’re trying to get to 289, which basically allows the suspension of the rules. In the Senate, we have 21 co-sponsors. They’re broken down pretty well between Democrats and Republicans.
I’ll tell you, we’ve had great cooperation from both sides on this. You read all about the political issues – and I’m sure they exist – but on this particular issue, both Democrats and Republicans have worked well together. In fact, our lead person in the Senate is a Democrat, and our lead person in the House is a Republican, Chris Gibson out of New York. We’ve had great luck working with that.
If you go to the website Congress.gov and you put in the bill number – H.R.969 or S.681 – it will show you who the co-sponsors are, it will give you the text of the bill and all the committee actions. We’ve had a legislative committee hearing in the Senate, and we look forward to having what they call a markup committee in October to actually mark the bill up and get it sent to the Senate floor. We think that’s going to happen.
Ladies and gentlemen, we have never been this close before. With a lot of people, great people like Matt, working some of the judicial things with us, John Rossie from the Blue Water Navy Vietnam Veterans Association, and a couple wonderful ladies, Carol Olszanecki and Susie Belanger up in New York State – Suzie’s the one who actually drafted me onto this process – we’ve been working with a big team effort to push this thing. As Matt says, the more publicity we get, the more things we do, it really pays off.
The other thing is, if you look at that website and you see your Congressman/woman and Senator have signed onto the bill, drop them a thank-you note. You can go on their website. Use the contact form on there and just say, “Hey, I saw you sign on to this bill. It’s very important to me. Thank you so much.”
I can guarantee you that they get a lot of letters and there are not too many thank-yous. It’s usually, “I want…” or “You so-and-so,” or whatever. But they’re human like everybody else and like a thank you here and there.
There are some other issues. We’re trying to get a Toxic Exposure Research Act through, which goes beyond the scope of what we’re talking about today, but the more you can thank them, the more receptive they will be.
At the same time, my organization, Military-Veterans Advocacy, can be visited on the web at MilitaryVeteransAdvocacy.org. We have a Facebook page, which we invite you to like. We have about 3500+ likes on it. If you so desire to make a tax-free donation, you can do that one the website, MilitaryVeteransAdvocacy.org right now. We have some small grants and we have some contributions from a lot of folks that have been helpful, but it costs money to take those trips to D.C., unfortunately.
Matthew: John has done an amazing job up there. I’m sure they can just hear his steps up and down the halls of Congress, again and again, just adamantly pursuing this.
We have lots of questions that I think hopefully we can discuss here as far as what the timeline is. Unfortunately, if any of you have VA claims pending, you’ll know this all too well: no timeline on the VA here. They have as long as they want to decide this.
What I found interesting is that when we got a final decision in the Gray case, the VA had about 120 days to appeal the decision. They did not appeal, but within two days of not appealing, the BVA had denied cases based on that draft regulation we talked about. They’re not ignoring this. They clearly already started looking at it. They had a draft that was more of the same. My hope is that this will be sooner rather than later.
Frankly, the more attention we keep on it, the more likely it’ll happen because they don’t want any more negative publicity. John had said before that he’s actually going to D.C. again this week to talk to the Deputy Secretary about this and hoping that after that he might be able to give us some more timeframes. This is on their radar, and whatever we can do to continue to keep it on the radar, the faster they will turn this around.
John: When they started denying those claims, as Matt said, I sent a very firm e-mail to Sloan Gibson reminding him that he had promised to consult with us, and within 24 hours, we got an apology from the Chief of Staff. Within a week, we’d been told an e-mail went out to the Board of Veterans’ Appeals saying, “This regulation has not been enacted. Do not follow it.”
But what it does bring up, because we don’t have a timeline, is that it’s very important for everybody to keep their case alive. If you’re turned down by the regional office, you have one year to file a notice of disagreement. Nowadays, it has to be filed on that silly little form they have. Then if you’re turned down by the Board of Veterans’ Appeals, you have 120 days to either ask for a reconsideration or to file an appeal with the Court of Appeals for Veterans’ Claims. You have to make those timelines. Otherwise, you can lose your case based on the fact that the appeal was not timely. That would be unbelievable.
Like I said, we have come closer now than we ever have on this. We have a lot of support. So you have to keep the case alive. I know some of you are trying to do it yourself; that’s fine. Some of you are using VSOs; that’s fine. But especially when you start getting up to the Court of Appeals for Veterans’ Claims, you might want to start looking at attorneys. Both Matt and I do those kinds of cases, but there are other folks out there, too.
You just have to keep that thing in the mill. If you let the time run out, it’s considered in a legal sense what they call jurisdictional, and you basically can lose your claim. Later on, you might be able to revive it, especially if the law is passed, but don’t take the chance.
The regulation that came out granting the C-123 folks the benefits was not retroactive. If we pass the statute, it will be retroactive, but if the VA issues a regulation, it may not be retroactive. Please keep those claims alive.
Matthew: One thing I’d say on that note is that if anyone has had their claim denied by the Board of Veterans’ Appeals within the last three months, I’d really like to see that – and I know John would, too – because that means it was denied under no basis in law. I would really like to one of those because we already have a couple we found, and we want to both get those appealed and overturned. I think it’s also good to bring to the Deputy Secretary’s attention, saying, “Look, this has gone on. This should not be happening.” Please do contact us. Even if you don’t, make sure you appeal that because that should be sent back from the court without even having to brief the case.
I’m hesitant to put the cart before the horse, but I think it’s so important that when this change takes place, when all of you get the recognition that your disabilities are related to service, and they grant service-connected compensation, it is extremely important to realize that that’s a battle won but that’s not the war.
I’d say in my firm 90% of our clients have either PTSD or an Agent Orange disability. Both of those can take a long time for the VA to admit service connection. The last thing you want to do is get the service connection and then get the wrong rating, get lowballed on the rating, or get the incorrect effective date. We see a lot of cases where the veteran fought for a long time and then got completely underrated and didn’t get full compensation they deserved.
Just be thinking about this. Once you get the service connection, it is important that the VA recognizes that your disability is related to service, but at the end of the day, they need to compensate you adequately.
Here’s a quick overview. Ratings are based on your reduced capacity to work. I realize the majority of people who are Blue Water sailors are retired, but if you would not be able to re-enter the workforce due to your disabilities, that should be 100% close to it.
With the effective dates, I firmly believe that the Nehmer Agent Orange Act rules are in effect here. That means that the VA has a very liberal interpretation of when a claim was filed under the Nehmer Act. I put up the C.F.R., the regulation, for the Nehmer effective dates. Essentially, the case should go back to when the veteran first filed. That can go back to if you filed last year. It can go back if you filed 20 years ago and never appealed. That is extremely important because you need to address that issue the first time you get rated, the first time you get a federal decision.
As an aside, I would say that if you have a disease that’s not on their list –we talked about the presumptive diseases; everybody knows diabetes, heart disease, prostate cancer – like MS or lupus, I would apply for it, unless you know exactly that it came from something else – some chemical exposure post-service or it was hereditary and there are folks in your family with it.
My thought is this. They will have to admit that you were exposed to Agent Orange now. You can apply and basically get a doctor to look at that and say whether the chemical caused that disability, but even if you’re denied, the VA is always updating their list of presumptive diseases. So if five years from now they update it and put your disability on there, the VA has to go all the way to the first time you applied.
What I’m planning on doing is once this is passed, once the VA has granted service connection for at least in the waterways, harbors, and bays, I’m going to do a more thorough discussion of what to look for on ratings and effective dates, just so everyone’s aware. This is the really important part because, for some of you, it could hundreds of thousands of dollars they could keep if the effective date and ratings are not adequately done.
As far as questions, there were a couple. One was a question of whether Tonkin Bay was presumed to have been exposed to Agent Orange.
John: It depends. If they’re in the territorial seas, there’s no question that it will be if the bill is passed. The other thing that we have found in most cases is that anybody who was in the Tonkin Gulf at some point entered the territorial seas. Your carriers would have to turn around and go into the wind. If you had an injured bird coming back, they’d get in as close as they could to recover that bird. They’d do search and rescue. There were a number of cases where they may very well have gone into the territorial seas.
Again, what you have to at that point is take the deck logs. On the top of the deck logs, you have a 0, 800, 1200 and 2000 position. Blue Water Navy Vietnam Veterans’ Association has something where you can plug in with a lat and long and you can see how close your ship was to a river and harbor or into the territorial seas.
If the VA only gives us the bays and harbors, that will not include the Gulf of Tonkin, so we’re still going to have to push to get these ships covered and get them covered either through entering the territorial seas or other ways.
One of the things we’re looking at for the future is if the mail, the supplies, or the people came through South Vietnam, chances are good they carried Agent Orange with them, a cross-contamination. Once it got on the ship, then it just permeated because people track it through the ship, track it down to the berthing departments, into the showers. Their clothes would be washed in a common laundry.
Before you know it, even if the ship had never come within the territorial seas, if its mail, its supplies, or its people had – as well the helicopters or planes that would be doing close air support, going through clouds of Agent Orange – all of that was avenue to get onto the ships.
I’ve made that case very basically to the Deputy Secretary, and I intend to make a stronger case when I meet on the 18th to hope that they actually come out and recognize that. But I don’t want anybody who, for whatever reason, did not enter the territorial seas or the bays and harbors to get discouraged and throw in the towel. Keep your claims alive.
We’re not forgetting anybody. It’s just that sometimes we get these things and it’s easier to do it in bite-size pieces. The same holds true for Guam Johnson Island Thailand Laos Cambodia Panama Fort McClellan and all the other areas. We have to do it in bite-size pieces, and this is a pretty good bite that we’re doing right now.
Matt: This is referring to some of the things John was just talking about here as far as what to do in your case. If you’re currently setting up your case, if you haven’t filed for your benefits, I think the best thing for anyone to do is get your deck logs. I would forego doing that if you were on the ship during the time the VA has recognized that it was in an inland waterway. You want to get the deck logs. You want to review all of them and figure out if you were in the mouth of the river or if you were one of the harbors and it’s verified in the deck logs.
We talked about this several times. John mentioned John Rossie’s site has this great lat and long search you can do, which is great. Even if the deck logs say you were off the mouth of the river, you can actually see where your ship was, whether it was closer than that. That website is a phenomenal resource in general, and I highly recommend putting that into your favorites. If you were in a harbor or a river or off the river mouth, you argue what we just went over in Gray.
Something else that John and I talked about was direct exposure. He was just describing that as far as Agent Orange coming in with the mail. That’s what you want to do. What I have to do for all the cases that aren’t in Vietnam at all is show if there was Agent Orange in the vicinity and then try to figure out how you can get that close to you. The beauty, I think, of the ship is that if you can show that it was in the water intake system, you don’t have to show that you touched a barrel or that it got on your foot or anything. You’re using that water day in and day out. That’s something to think about.
John, are there any other thoughts you had on direct exposure?
John: I have a standard direct exposure brief that we put together for one case – it’s pending right now at the Board of Veterans’ Appeals – where we addressed that. We’ve given the citations to all the hydrological studies, and like I said, I have an affidavit from hydrologists who studied Vietnamese rivers, so we have quite a bit of evidence that we can put forward.
I guess for anybody who contacts me by e-mail, whether they want representation or not, I’ll be able to send them all the information that can be helpful as long as I know where they were at and whether they were actually in the harbor, in the seas, whether or not it’s a direct exposure issue, and so on and so forth.
One of the things you need to do, though, is get the deck logs, as Matt said. Please scan them, and when you send them to us, please don’t send them as individual pages. It takes a month-and-a-half to download those things. Try to get them into one file. If you don’t know how to do that, somebody like FedEx Office or Office Depot can do it for you. That makes it a lot easier to go through and review.
At a certain point, you really need to think about representation. But when you’re first starting out, I’m happy to answer any questions. I get e-mail questions all the time, and that’s the preferable way to contact me. If you send me a bunch of things, I generally don’t have a chance to look at them, so send me an e-mail. That’s probably the best.
But keep that claim alive. We’re continuously going up to D.C. to fight this issue. I have four more trips planned this fall, starting with next week. Again, if you want to assist financially, it’s MilitaryVeteransAdvocacy.org. We take Visa, Mastercard, and Discover, and it is tax-deductible.
Matthew: There were a couple questions. One we just got was “If a veteran was on a ship and went on a helicopter and went down and picked up the mail in Vietnam, is that considered boots on the ground?”
The answer is yes. The concept of boots on the ground is that you can jump off a helicopter and jump back on. We have vets who were stationed in Thailand who would slide over to Saigon, get off, go get a drink, and get back on. Those were all considered boots on the ground. That’s a very liberal standard.
The other question we got was “Do we need a doctor to say my disability is related to Agent Orange after we get the presumption?”
The answer to that is it depends. If it’s one of the diseases that the VA presumes is related, then, no, you don’t; all you have to show is exposure to Agent Orange. If you have diabetes, prostate cancer, Parkinson’s, or heart disease, once you show that you were exposed and that you have an actual diagnosis, there’s nothing further you have to do.
But if you have a disability that’s not presumptively related – this is what I was talking about earlier – then you definitely would need a doctor, and you’d need the doctor to talk about why the Agent Orange caused that disability.
The disease I’m seeing a lot right now is kidney cancer. The VA routinely will say that’s not related. We’ve had great success in showing that even though it’s not the presumptive disability that it is. We actually – ironically enough – use a VA study out of hospital in I think Baton Rouge showing that Agent Orange can cause kidney cancer.
You can definitely win that case. First you have to get them to admit that you’re exposed to Agent Orange. From there, you want to show that either the disease is presumptively related or that the doctor gives you a nexus, meaning connecting the two.
I will say this about a disease that is not on their list. You will almost never win that case at a regional office. You have to take that to the Board of Veterans’ Appeals.
John: Folks, 8% of the people who are denied at the regional office appeal – only 8%. That’s unbelievable. There are just a lot of things you’re not going to win at the regional office that you can win in appeal. I urge anybody who thinks they have a bad decision, don’t give up, don’t throw in the towel and say, “They’re not going to give it to me.” File the appeal.
Matthew: On that note, there are quite a few people asking if they should go ahead and apply. If you have not applied yet, get that application in now. You’re going to be waiting anyway, so you might as well get it in so that when this law changes favorably, your claim is already there to be granted.
John: If you’re a survivor, if you’re a surviving spouse and the veteran died from one of the numerated illnesses, please make sure you get your claim in and get it in now, too. It’s important because the claim will only go back to the date of submission. If you wait around for a year or so, you could lose a year or so of benefits.
Matthew: We already talked about John Rossie and his organization, but Mike Yates has also done a great job of organizing Blue Water vets. He was up there hoofing around Congress as well with John a little while back this summer. Their websites are two great resources. If you have ship information questions or just Blue Water questions in general, I consider those two gentlemen experts.
I think John talked about earlier that if you have basic legal questions, we’d be more than happy to talk about them.
John: Right. I was negligent in not mentioning Mike Yates. He did come up and spend several days with us up in D.C. We were able to get to see one of his senators and the staff of another one of his senators and one of his congresspeople. Mike’s done a fantastic job of keeping things going.
If you don’t belong to the Blue Water Navy Awareness Facebook page, please join it. It’s one of the pages that I publish on all the time, as well as my own Facebook page, Military-Veterans Advocacy. Of course, while you’re there, if you want to pop over to the website and make a tax-free donation – we take Visa, MasterCard, and Discover – at MilitaryVeteransAdvocacy.org, please feel free to do that. That’s my third time, so I can’t say that anymore. Right, Matt?
Matthew: Roger that. That’s all we have. We do appreciate your time today coming out and joining us. I am going to make the recording of this and get it up on our website. When we do, we will send that out to everyone. I’m hoping to have that up on our website by next week. That will include the slideshow. It will include everything.
We appreciate it. This battle is not over yet, but we’re very optimistic with where we’re going and how close we are.
Thanks, John, for joining us.
John: It was my pleasure, Matt. Folks, we’re not giving up. We’re going to continue to push this until we win. I think that’s one of the things we’ve impressed on the VA. We’re not going away.
Matthew: Take care and have a great day.
John: Y’all take care now. God bless.
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