My last several posts have been about Vietnam-era veterans who served in Thailand rather than boots-on-the-ground in the Republic of Vietnam. The reason for this is that we have been arguing a case—first before the Court of Appeals for Veterans Claims and then before the Board of Veterans’ Appeals—that was focused on the issue of herbicide exposure in Thailand (Agent Orange). We just received the good news that our client has finally been awarded benefits, and I wanted to share her story with you.
In May 2011, I spoke to a widow who had just received a denial from the Board of Veterans’ Appeals. Her late husband had filed a claim for compensation for lung cancer shortly before his death from that lung cancer in 2005. He claimed that he had been exposed to Agent Orange while in Vietnam and should be compensated for his respiratory cancer as that disease is on the list of diseases presumed to be caused by herbicide exposure. The widow filed a claim for Dependency and Indemnity Compensation (DIC) benefits in September 2005 after the veteran’s death. That claim was denied, and her appeal had been pending since that time, delayed while the VA made some policy decisions about how it was going to treat Agent Orange claims.
While the veteran had told his wife that he was, in fact, boots on the ground in Vietnam, that service could not be confirmed by the existing records. We had no proof that the veteran had ever set foot in Vietnam. As we could not gain any further information from the veteran about his Vietnam service, we could not prove his presence in Vietnam. What the service records did show, however, was that the veteran had been stationed at two Royal Thai Air Force bases during the Vietnam era—Nakhon Phahnom and Korat. This information gave us enough to argue to the Court of Appeals for Veterans Claims that the VA had failed to develop the evidence to determine whether the veteran’s duties had involved service on the perimeters of those bases. VA is required to follow certain procedures in developing such evidence, and, in this case, had not done so. The Court agreed that the VA’s failure to follow the procedures warranted sending the case back for a new decision.
Once the case was returned to the Board, we were allowed to submit new evidence to support the claim. Our problem in proving perimeter service was that our veteran was a food service manager and that there was no indication that this position had placed him on the perimeter of either of his Thailand bases. During a conversation with the widow, however, we learned that her husband told her that while he was stationed in Thailand, he had coached a softball team for local children and that he had played on a softball team. We searched the veteran’s service records and found that in one performance report, his supervisor praised his involvement in the community—including coaching a community softball team. Performance reports also indicated that the veteran was active in intramural athletics. We did further research and found a map of Korat Air Force Base from 1973 which showed that the softball fields were on the perimeter of the base.
We took all of this evidence—the map, the widow’s statement, and the performance reports—and submitted it to the Board, arguing that the evidence showed that the veteran did have regular contact with the perimeter of the base on the softball fields and that he should be presumed to have been exposed to herbicides. The Board agreed. The Board determined that the veteran as likely as not was exposed to herbicides and that that his cause of death from lung cancer should, then, be service connected. Our client is now entitled to more than eight years of retroactive benefits.
When our client filed her claim, the VA was not even recognizing Thailand veterans as having been exposed to herbicides. Even at the time we took her case in 2011, it seemed that only dog handlers and military police were being acknowledged by the VA as having served on the perimeters of the Thailand bases. We kept digging and kept talking to our client, and she is now going to be receiving the benefits she is due. The moral of our story is “Do Not Give Up!”
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