Matthew Hill: Good afternoon. This is Matthew Hill from Hill & Ponton here with Gregg Maxon. We appreciate you all joining us today. We are going to be talking about herbicide use, Agent Orange use in Thailand and how one can prove that claim. The VA has admitted it was used there, but they’re not conceding that many folks were actually exposed.
So I’m going to let Gregg introduce himself and his background.
Gregg Maxon: Hey! My name is Gregg Maxon. I’m a Thailand veteran myself. I was stationed at Ramasun station from 1973 to 1974. I’ve been accredited to represent veterans before the U.S. Court of Appeals for Veterans Claims since 2006 and have been accredited via the VA since 2008.
And this topic is of great interest to me because I am a Thailand veteran and I do know that Thailand veterans are struggling in getting their claims recognized by the VA.
If you take a look at the time period for herbicide use in areas other than Vietnam, you’ll notice that Thailand period of time starts in February 1961 through May 7th 1975. The Vietnam Air Veterans actually didn’t start until January 1962. So the period we’re looking at for Thailand is actually broader than the Vietnam time period.
It doesn’t seem like there were 800,000 military personnel who served in Southeast Asia other than Vietnam. And that was Thailand, Cambodia and Laos; their predominant number in Thailand. In 1969, there were actually more airmen in Thailand than there were in Vietnam.
This map represents some of the major installation that were in Thailand during that period of time. These are predominantly the…
Matthew: Air Force.
Gregg: Air Force. You can see Camp Samae San down by U-Tapao and Camp Vayama down in U-Tapao. But by and large, these are the Air Force bases. There are a number of army installations. The Ramasun station was about 10 miles south of Udorn Air Force Base. There were a number of small communication stations dotting the whole countryside.
This is copy of the VA website, information on Agent Orange exposure for Thailand. And it discusses army veterans who served on Air Force bases and it also discusses army veterans who were stationed at the smaller army installation.
They make a specific point in saying that for the army veterans, they have to show that their duty assignment was a particular MOS, particularly security, military police, something like that, that their duties require them to go near the perimeter.
That’s an issue that the VA has raised, but as we’ll talk later on, that’s not an absolute requirement in order to get the service connection for herbicide exposure.
If you have any doubts as to whether your unit was stationed in Thailand or proving it, this Vietnam Order of Battle is a pretty good book. Appendix B has got the order battle for those units that were stationed in Thailand, the years they were there and where they were located. This would be particularly useful to survivors who might know that their loved one was stationed in Southeast Asia or in Thailand, but not know exactly where they were.
These are some of the references that might be helpful as you’re developing your claim. Vietnam Veterans of America has got a very good self-help guide. That’s their website. And then the VA website that we just showed you a picture of, take a look at that. That’s also got some good information.
Herbicide use was different in Vietnam. In Vietnam, they used tactical spraying and it was usually aerial spraying with a C-123 aircraft. Thailand, it was different. There was very little aerial spraying, if any, and it was all done by ground dispersion methods.
As one of my colleagues once said, in Vietnam, we used the herbicide on the enemy. In Thailand, we use it on ourselves because the rules of engagement indicated that we were not permitted to use herbicides outside of base perimeters. So we had to use them on our own installations.
Now, this slide is not unique to herbicide exposure, but three things have to happen in order to get service connection for a disability with the VA.
First off, something had to happen in the service – an illness, an injury, an exposure, something;
Then you have to show that there’s a current disability. For herbicide exposure, there’s about 15 different medical conditions that have been related to it. Skinny heart diseases and diabetes seem to probably be the two predominant ones. And so you have to show there was an event in the service and that you currently have one of these diseases;
And then you got to be able to show through some medical evidence that there is a connection between what happened in the service and the current disability that you have.
Now, for Vietnam, it’s just presumed that if you set foot in Vietnam even for a moment, if your boot is on the ground in Vietnam, it’s presumed that you were exposed to Agent Orange. And so therefore, if you have one of these conditions, it’s just granted on the basis of the presumed exposure.
And in Thailand, there isn’t such a broad presumption. Now, the VA does concede that some veterans were exposed, but they take a look at your specific location on your installations to determine whether or not it was likely you were exposed to the herbicides.
Matthew: I’m just going to go back and step back with the steps, the service connection. With Agent Orange exposure, there are presumptions. And with Vietnam vets, there are two presumptions.
The first presumption is if you stepped foot in Vietnam, you were exposed to Agent Orange. So that takes care of the event and service. The second presumption is if you were exposed to Agent Orange and you have one of their 15 diseases (like Gregg said, heart disease and diabetes), then you don’t have to do that last part of medical nexus.
Now, we’re going to talk a lot about what is presumed in Thailand. It really comes down to whether you were exposed or whether the VA is saying you were exposed. But once you establish that event in service that you were exposed, then you get that secondary presumption of a medical nexus between the condition that’s on their list and the exposure.
Gregg: That’s right. For those who were stationed on Air Force bases, these are the Air Force bases that are included in the Thailand presumption.
See, you have to show your station at one of those places and – let’s go to the next.
Matthew: Real quick. Don Muang (I’m probably butchering that), they had, for some reason, taken that off the list of bases and just put it back on last month. They didn’t really give an explanation on that.
Gregg: As I recall, it’s the airport in Bangkok. But for some reason, they took that off the list in August. But on October, they realized it was a mistake and put it back on. So, it’s still there.
Okay! So you have to be on one of those bases and you have to serve as an Air Force security policeman, a dog handler or a member of the security police squadron or that you had other duties that required you to be in close proximity to the perimeter of the base.
And you can show that through job assignments, duty descriptions, performance evaluations or what they call ‘other credible evidence’, which could be your own statement or could be buddy statements.
Matthew: And so when you look at this, the first several, the security – I know it’s not MOS, but the security…
Matthew: …the AFSC, those three there, if you show that you were one of those, then you are granted a presumption, presumed that you were exposed. But if we have to use that last part showing that you’re near the perimeter, that, you have to show through specific facts. You have to go out and prove your case. The VA is just not going to accept it.
Gregg: Right. Okay! So, if you’re in the army serving in an Air Force base, there’s a VA manual called the VA M21R which is basically just their guide on how to adjudicate cases.
And what it requires is you must affirmatively state that you had duties near the base perimeter and you have to support that with credible evidence establishing that you had duties near the base perimeter.
Not only MP’s or security police had legitimate reasons to be on the base perimeters (and some of the smaller installations, virtually every place was near the perimeter of the base), you can win these cases even though you didn’t have one of those MOS’s, but you have to go that extra step and establish through credible evidence that you had duties that took you near the base perimeter.
Okay! Vets serving on army installations. In Ramasun station, that wasn’t just an army installation. We had Navy, Marine Corps and Air Force personnel located there also for various missions that were going. But again, the VA limits it (the presumption, as such) to members of military police units or those who had an MP MOS or who firmly state they had duties near the base perimeter.
So if you have one of those MOS’s, they’re going to assume that you had duties on the perimeter and they’re going to grant your benefits. But if you didn’t have one of those MOS’s, you’re going to have to show that you had some sort of duty or some sort of requirement that placed you on or near the perimeter of the base. And again, you got to support that with credible evidence.
Matthew: To back on this, the VA just took this language [wholesale] out of their M21 manual. So there’s language in there about what we just showed, the Air Force airmen and then the army personnel who were on Air Force bases. But this language about these soldiers on army installations, it’s just [wholesaled] and taken out with no reason given.
Matthew: You have to keep in mind that that M21 manual, that’s a claims adjudicator’s guide. It’s not regulatory, it’s not mandatory. But those are the guidelines that the people who are initially reviewing your claim are going to be looking at. And by not having this language in there, they may assume that you cannot prevail on a claim if you weren’t an MP or having one of those MOS’s.
It’s our opinion that there are plenty of cases already settled where you didn’t have to have one of those MOS’s and you can establish that you were near the perimeter during your tour there and the benefits have been granted.
So we believe that even though the language is no longer in there, that’s not really a change of policy, but it may mean that it’s a little harder to get your claim through your regional office. You may have to go up the chain to the Board of Veterans Appeals.
Matthew: Yeah. I think that’s something Gregg and I would agree on. It might be a theme here. If you lose at the regional office, you just keep going because almost all the claims we’ve won have been at the BVA. They take a more legal view of it versus just follow some manual.
Gregg: Okay! There are some confusion between the presumption and the direct evidence. And a lot of times, the confusion is from the person who’s rating the claim.
Frequently, the VA will find a lack of evidence to apply the presumption and deny it. In other words, you weren’t an MP or you didn’t have duties that required you to be close to the perimeter.
But just because you’re not entitled to the presumption doesn’t mean that they can deny your claim on a per se basis. They can’t just say, “You’re done.” They have to give you the opportunity to prove exposure to Agent Orange or herbicides through what we call ‘direct evidence’. And that’s where you get your buddy’s statements and your statement or the description of your duties through your performance evaluations or whatever that might indicate that you had duties that take you in proximity to the perimeter.
So just because you’re not entitled to the presumption, don’t give up because there are other ways to prove the claim. It’s just that there are just a few extra steps you have to go through.
Matthew: And just because the VA doesn’t mention the other ways doesn’t mean there are not other ways.
Gregg: And quite honestly, they’re not very often likely to step up and help you prove your claim even though they’re required to.
Okay! The presumption requires a positive association. And that’s where they have determined that if you had one of those MOS’s, they will just assume that you had those duties that took you in close proximity.
The direct evidence requires as likely as not test. In other words, you don’t have to really prove if you were, say, in a criminal setting, beyond a reasonable doubt that you were there. You just have to show it just as likely as not.
And that’s actually a fairly low standard. You just have to be able to provide evidence that when people look at it, they kind of say, “Oh, that makes sense” and looks like you were there.
So the standard isn’t that high, but without at evidence, you’re not going to prevail.
Matthew: Tie goes to the runner there.
Okay. These are some of the legal resources that – now, this presentation was originally written for attorneys, so we put this in here. But these are the legal references that attorneys would use to help start formulating the arguments in your case.
And so one of the things that I always recommend is there are a lot of BVA decisions that have already decided cases in favor of veterans in Thailand and if you just keep looking at those cases, it’s not hard to find one where you’ve got a veteran who won and the facts of their case are very similar to yours.
You can’t cite them as precedent. In other words, you can’t say, “You’ve decided it this way. In that case, therefore, you have to decide this way in my case.” It’s so much easier for that BVA judge to look at another decision and say, “Hey! We’ve already got decisions that are very similar to this, that have already granted the benefit and it makes that much easier for them to decide that it’s okay to go ahead and grant the benefits.”
So look for those BVA decisions to see what’s out there. I cite them. I actually sent them to the regional office just to see if we can get them to look at them and make a decision before we have to go to the BVA.
But certainly, if you’re at the BVA, find other decisions that are similar in the fact patterns and show them. “These are cases that have already been decided, so you shouldn’t have difficulty in granting my benefit.” I think that really helps the judges to see that other cases have been decided in a certain way. It makes it easier for them to sign their name to an opinion that’s favorable to you.
Matthew: And even within those opinions that are favorable, you can find a roadmap for the type of evidence you need, getting buddy statements or maps or diagrams. It helps that way as well.
The hyperlink on the very bottom of the page will take you right to the area where you can search these opinions. It’s a pretty good search.
And what else did I like to say? I guess that was it. Okay.
Gregg: Okay, this case law, we put it in here for the attorneys out there that may have been interested. But what these cases basically stand for is that veterans are not competent to do certain things, to form certain kinds of opinions.
For example, a veteran isn’t competent to form an opinion as to what their medical condition is. That requires an expert.
However, veterans are capable to provide confident evidence about things that are observable. For example, in the medical arena, you can observe when you had a rash, how much of the skin was covered by the rash and things like that. You can’t explain why you had the rash or how you got it, but you can explain the fact that it was observable and you saw it.
In our context, veterans are certainly competent to testify about when they were at a certain location, where they were, what kinds of duties they had, whether or not they were near the perimeter.
And so what these cases stand for is that veterans are perfectly capable of providing competent testimony about certain circumstances about the nature of their service. And you should always play putting in your own statement as to where you were, when you were there, what took you near the perimeter and those kinds of things.
And unless the decision-maker, the reading officer or the BVA judge has specific grounds to find your information incredible, they have to find it credible and useful to helping them make a decision.
And so always include a buddy statement because even your buddies have the same opportunity to talk about observable facts. They saw you near the perimeter; they went with you when you went on the run on that perimeter route. Those kinds of things are all very helpful in establishing the facts that help prove your case.
Matthew: What I forgot I was going to say earlier is that this presentation will be something anyone can download in a couple of days, so that if you want to cite these cases or look at the websites, we would do that.
Gregg: Okay. The main report that is very helpful in helping establish herbicide exposure in Vietnam veterans is a thing called the CHECO Report. It’s the Contemporary Historical Examination of Current Operations Report – Base Defense in Thailand and is dated 18th February, 1973.
It’s very difficult to find a complete copy of this online, but just keep looking for it. It’s there. But I just wanted to point out a few specific pages that are in there.
It talks mostly about Air Force bases. There’s a few comments in there about the army installations, but it’s mostly about the Air Force bases. They talk about there being a three ring defense perimeter – the exterior, the middle and the close-in perimeters. Those are the areas (particularly in the exterior ring) where herbicides were most likely used to help clear fields of fire for base defense.
If you look at page 58 specifically, it talks about herbicide use in Thailand. Page 64 mentions rapid jungle growth which explains why they needed to use herbicides in Thailand.
But what I think is the most important information that comes out of this is on page 67. That makes reference to the fact that the embassy in Thailand limited the use of herbicides to lands that were interior to the base.
Herbicides could not be used off the base. So that’s where we talk about this is where we used it on ourselves and not on the bad guys. We were prohibited by state department policy from utilizing herbicides outside the perimeter fences. And so, we had to use it in interior perimeter. And that’s why our troops that worked near the perimeter were likely exposed to these herbicide agents.
This document is very helpful because it describes what the stand-off distance would be for a safe area from where herbicides were used. This document specifically talks about aerial spraying which wasn’t used in Thailand, but it talks about vehicle-based or vehicle-borne dispersion equipment and how it works.
The paragraph that we’re citing talks about ground dissemination systems. Subparagraph 5-2D specifically states:
“A 500 meter buffer distance should be maintained to avoid damage to desirable vegetation near the target.”
So what they’re basically saying is from wherever we stopped using this herbicide, you need to back off 500 meters before you’re in what would be considered to be a safe area. And that would be measured from where they stop spraying. We talk about “desirable vegetation”, how about desirable personnel? How far away did they need to be from that target.
But 500 meters, that’s a government document that could be cited to show how far away the safe distance was from wherever the perimeter spraying stopped.
Matthew: And what would constitute ‘near the perimeter’ is what they’re saying.
Gregg: Right, yeah. And that’s one of the difficulties that we have with the VA rules because it focuses on duties that were near the perimeter. They don’t define what ‘near’ means. And the VA policies other reasons it might be near the perimeter.
We’ll get into some of the photo share. I don’t know if we have any Ramasun station veterans listening, but it was a very small installation. I think it was maybe 300 or 400 acres. And if you were there in 721, the softball field was literally put right on the perimeter. And quite honestly, if you played left field on the softball team, your duty station, so to speak, was literally on the perimeter.
And quite honestly, the perimeter road was three miles and it was a good running surface. We used to go out there and run on that road all the time. Nobody told us not to.
Okay! So, proving your case, it’s not about being in Thailand. Your military personnel record should establish that. And it’s not about the use of herbicides. The VA has conceded herbicides have been used.
The issue in your case is about exposure. And that exposure is all about being able to prove that you had legitimate reasons to be near the perimeter and that you were there likely exposed to herbicides.
So you don’t really need to spend a lot of time trying to prove that herbicides were used. They’ll agree with that. You’ll just have to show that you were exposed to it by being near the perimeter.
Okay, we’ve got some documents that might be helpful. This is the U-Tapao Air Force Base base map. I think the runway is up on the northern side. The flight line is on the top side of that map. You get a sense of where the perimeters where. These are readily available on the Internet for a lot of these installations, or aerial photos.
So you need to prepare a statement about what your duties were, where you were located. Get statements from your buddies that you may have served with, photos, maps and anything that you could find. A lot of it is on the Internet that help you establish what the base looks like and specific features of the base like where was the post exchanged, where were the recreation facilities, where was the flight line in comparison with the perimeters.
Those will help you establish what the base looked like. And so the rating official can maybe get a visual image and understand why you might have been on the perimeter based no your duties and your location.
Okay! The other thing is a lot of times, you already have some of these stuff. For those of us who served in Thailand or in Southeast Asia, it was almost a requirement that everybody buy a Seiko watch, a stereo and a camera. Those were the three things everybody bought. Go through your old photos. Get hold of your buddies, see if they can go through their old photos.
There are a whole lot of website reunion sites on our website. For those who served in the 7th RRFS, that were Ramasun station, there’s a Facebook page that you can join.
There are all kinds of army security agency organizations out there you could join. And there would be other people that served there. They may have photos.
So you can post on those websites and those Facebook pages and request for people who have photos. Maybe you can look for somebody that you knew. There’s a lot of ways to get connected with people who served over there with you.
Okay! What do you look for? Look for photos near the perimeter. Where were the athletic and recreational facilities? A lot of them are located on the outer edges of the installation.
Evidence about off-duty activities, like I said, the perimeter road was some place that a lot of us went to jog because it was a good running path. So those are the kinds of things. What kinds of activities did you have that were logical that somebody would look at and say, “Ah, it makes sense that they would have been near the perimeter for that!”
Matthew: And one note on this as far as off-duty activities, the courts have found unequivocally that a service member’s day never ends. So it doesn’t matter if you were playing softball in your own time, that counts. It’s 24 hours. What were you doing with your 24 hours? And even if it was something you were doing at your own initiative and not as a duty requirement, that still counts as far as where you were and what was going on.
Gregg: And that’s an important point. Off-duty activities are still part of your duty day. Unless you’re committing a crime at the time, it’s going to be found in the line of duty. You don’t have to be performing your official job duties for this to apply. You just have to legitimately be on the installation in close proximity to the perimeter.
Matthew: And one administrative note I forgot to point out. On your control panel towards the bottom, there is a note where you can ask questions. So please ask questions at any time. We’ll try to get to those as well.
So this is an example we had where a veteran in Korat at ’74 – ’75. He was a food services supervisor. The map, this is a map that we were able to get and draw lines on. But as Gregg was saying, you want to look at where the person was active on the base. But as he has told me in the past, he also want to see where they’re sleeping.
If you see the dotted line, that’s the perimeter. And then the solid line is the 500 meters that would go in. So it appears the living quarters are right up next to the perimeter and they go all the way in.
This veteran actually also played softball and he taught some of the young children and played with them. And as Gregg also mentioned, the softball field for this base was right on the perimeter.
The veteran, by the time the claimant came to us, it was the widow. The veteran had died, so we didn’t have a lot of statements we could go back to get from him. But we did have his service records which are also very useful. These were part of his performance record. And you see where it’s highlighted, it talked about him coaching a little league based on these documents and evidence from his spouse.
We were able to get her benefits, but there’s a lot of creativity on here and you kind of establish what being ‘near the perimeter’ is by your evidence.
Gregg: Now, this is a base that I was stationed at. In the picture, that’s the headquarters building as you walked up a fairly long roadway from the main gate. You can see that there’s actually a few small trees around the headquarters building.
And here’s an actual engineering diagram that we found of the installation. It shows the actual dimensions of it and the main buildings that were on it. The circle down on the left-hand side, that was a huge antenna that we had on this installation. And the square just above it was the operations building.
But just to the right if you look up towards the top, those were various buildings. Administrative offices for the various companies we had. The NCO club was up in that area. There are tennis courts up in that area.
And so there are a whole lot of reasons to be up near the perimeter in that area. But also, again, that perimeter road was three miles long and that was a great running track. And so a lot of us went out there to run on.
But if you keep looking on the Internet, you can often find diagrams of your installation. And this actually shows the dimensions.
We’ll go to the next slide. If you find that 500 meter buffer zone, that area that was in the middle, that dark line is my depiction of the safe zone in that installation. If you went there and never went outside of that area, you were not near the perimeter. Anywhere else on the base was near the perimeter, under that 500 meter stand-off feature.
Okay. This is an aerial photo of the installation. And on the more right-hand corner, you can see the softball field. And if you look at left field, you’ll see just right behind it, that is the perimeter road. You can see the guard tower from right along it.
You can see just a little up from that, a little farther up in the upper right-hand corner an H-looking building and that’s a barracks. You could see how close that barracks was to the perimeter.
So no place on the installation was far from the perimeter. So I guess everything was near the perimeter.
That’s a picture from looking outside of the fence, through the perimeter fence and back into the installation. You can see where the guard tower is. But you can see that the land there is very barren. Quite honestly, in the 10 months I was there, I honestly don’t remember anybody ever out there mowing that big field.
In the rainy season, I’m going to grow rice up there. It’s a very tropical place with a lot of rainfall, so you would expect grass or something to be growing out there.
Matthew: And you point back to the CHECO Report where it states there’s rapidly growing vegetation in this area.
Gregg: Now, you will see on the outside of the fence, because we couldn’t use herbicides out there, you can see scorch marks where it looks like the vegetation has been burned off, but that’s on the outside. I think the local farmers did that for us or they did it for themselves to have access to their farmland.
This is a picture of me. And again, this is some of the evidence you might have in your own photos. Clearly, that’s me. That’s Ramasun. Well, you wouldn’t know it’s me, but that’s me. Clearly, it shows there ‘Ramasun Station Fire Prevention Week’ and you can see the year, 1973. So it’s a pretty good evidence I was at Ramasun Station, 1973.
This is a picture of me standing on the landing of our barracks. It was a two story building. And what’s significant about that is if you look past me, right there is the perimeter road and the perimeter fence just on the other side of our barracks building. It was probably less than a hundred feet from our building to the perimeter, the perimeter fence.
And then the next picture, that’s me standing on top of our building. And looking back towards that antenna, you can see how barren that field is. And again, I don’t recall anybody out there ever mowing it. So there was something that kept the vegetation from growing out there.
But these are the kinds of things that if you just look through your old files, you may find something.
And this is what the countryside looked like just outside of our installation. You can see the rice growing and the trees and everything. So, it’s not that it was a desert environment. It was a very lush place.
And so these are the kinds of things that if you confine them or if somebody has got photos like that, this goes a long way towards establishing your close proximity to the perimeter or being in an area that was herbicide-treated.
Matthew: I just want to go back to this. Gregg, what was your MOS?
Gregg: I was a linguist.
Matthew: He was a linguist. So on the face of it, he comes into the VA and says, “I’m a linguist” and they’re going to say, “Well, you have no business being on the perimeter.” And maybe he doesn’t. Maybe he doesn’t have a business working on the perimeter. It’s not crystal clear in here, but the perimeter road is right below him. And if you look really hard, you can actually see the fence. And so he was near the perimeter not so much for his duty, but where he was living.
I think that’s just so important because a lot of people might be turned away from the VA due to what their duty was. But as we said, I think this right here is just shocking to me just how small of an area according to the army’s spraying documents would not have been hit with Agent Orange, or sorry, with herbicides
So you got to get past that initial wave of what they’re considering ‘near the perimeter’. You are the one to define that.
So downstream issues. One thing that we see a lot is where a veteran fights tooth and nail to actually get service connected. And then from there, what I call, you win the battle and you lose the war. And by that, what I mean is that a veteran will get service connected, but they’ll get lowballed on the compensation. They’ll get the wrong effective date.
And so this is just something to keep in consideration especially for those who have been fighting for so long to get, frankly, just the recognition that their service caused these disabilities. But at the end of the day, what is being applied for is service connected compensation, not just service connection.
So just looking at these things. Rating clearly is they rate from a scale of 1 to 100 by increments of 10. But not every disability has 10 through 100, they skip around a lot. Heart disease, for instance, goes 0, 10, 30, 60, 100. So that’s the ratings.
And the effective date is the date from which the VA should start paying the claim.
Now, with the ratings, the premise of the rating system is that compensation is granted for how much time a veteran misses to that or how impactful the disability is on the veteran’s ability to work.
So essentially, the less the veteran can work due to the disability, the higher the veteran should be rated.
So, Gregg I think is an exception in that Gregg retires and retires, but he always works again. I think Gregg retired three times now at least?
Gregg: At least, yeah.
Matthew: And he’s still working. But for individuals that have retired, this becomes a little bit more difficult in that they would say, “Well, look, I haven’t worked. How do I know how much this would impact my work.”
The fact, age and working or not working does not factor into this, meaning if you retired due to age, that doesn’t matter. It still needs to be something where you as the veteran are looking at how much it would work you if you were able to work, basically, if you would be able to maintain a job.
So, it’s something to where once you get rated, you need to be thinking about, “Okay, I finally got service connected, but how impactful is this on me?”
Now, with the effective dates, this is the, again, the date from which compensation starts. Like anything with VA, there’s the rule and then there’s a ton of exceptions. We literally don’t have time to run through all the exceptions, but the rule is the service connection starts from the date of the current claim.
And what I mean by ‘current claim’ is you could’ve filed the claim ten years ago, lost that, closed, claimed after that, lost and closed. And then you filed this current claim to reopen the disability. Well, it’s from the date of that current claim, whether it’s your original claim or it’s the claim five claims down the road.
So if you win service connection, the typical scenario is it goes back to that date of this current claim.
In this situation for Thailand air veterans, this is different because the military has never released the CHECO Report since that document has come out. And that has changed the VA’s policy on this. You have the opportunity to go back to the earliest filed claim on this issue.
So I guess the first premise is you can’t go back before your first claim. We see veterans all the time, unfortunately, who knew they had this disability back in the ’60s, the ‘70s, but did not know they could be compensated and did not file. Unfortunately, there’s not a claim there and there’s no way to get back to that when the disability itself became manifest.
So the earliest you can go back is the date of that first claim. This is incredibly important because if you get service connected now and the VA says, “Okay, we admit that you were exposed to Agent Orange in Thailand, herbicides in Thailand and you have heart disease. Well, we will service connect that as the day of your claim, January 2015.”
If you have filed in January 2000, they owe you those benefits. That’s a lot of money and you want to make sure that they’re getting the proper effective date because you’ve been fighting this whole time. And unfortunately, with how the law is written, you actually have the opportunity to go all the way back to when you first filed.
Do you have any comments on that?
Gregg: No. It’s important though that if you haven’t filed a claim, get it filed now because nothing happens until that first claim is filed. And if you filed previous claims or were denied on the basis that there was no evidence of herbicide use in Thailand, well there now is that evidence. And so there may be the opportunity to go back to that earlier claim that you filed that was not denied.
That’s not typical. That’s not the general rule, but that maybe an exception that could apply in your case if you filed earlier claims but were denied on the basis of there was no evidence of herbicide usage in Thailand.
Matthew: Well, that’s the end of our presentation. But I think we have a couple of questions. If you have a question, please let us know so that we can look at it.
We’re looking through different AFC’s…
Gregg: Okay. One of the questions we have is somebody wants to know if there’s a list of available AFC’s. That’s the Air Force version of their military occupational skill. “Available list of AFC’s for the Air Force personnel that were acknowledged by the VA to have been exposed?”
I’m not aware of any particular list of AFC’s. But what they say is people that were assigned to military police or security police duties, dog handlers, people who were involved in base security. Those are the kinds of AFSC’s.
I don’t know of any definitive list. But again, I wouldn’t get hung up on that. If you can establish that you were in close proximity to the base perimeter, AFSC’s or MOS is kind of immaterial. It’s just easier if you can show you had one of those MOS.
So if you had an MOS or AFSC that was dog handler, security police, base security, anything like that, that gets you one step closer to getting your benefit granted. But it’s not a show-stopper if you don’t.
Matthew: Gregg here’s another one we spoke about earlier.
“I was a pilot station in NKP. We often went TDT to Da Nang. But there’s no evidence for any one of my squadron going to the Da Nang. We spent three or four months in Da Nang TDY. How do you prove we were sent to Da Nang. With our planes, crew chief, and maintenance personnel.
Gregg: That’s a good question. The Air Force has a historic office at Maxwell Air Force Base. I had a good amount of luck in getting information from them based on unit reports. There’s got to be the morning reports, orders, whatever, showing that units detailed or sent people TDY to these installations.
And so there may be some documentation out there, but maybe not in your personnel record, but there may be some units documentation showing that they sent people TDY to Da Nang during that period of time and the argument is that, “Well, I was one of those people.” It’s hard for the VA to argue that you weren’t when the Air Force is saying, “Yes, this happened. We did send a lot of people TDY there.”
So I don’t have the name of the office or the address with me, but we can certainly provide that on Matt’s web page to let people know that. But there are ways to do that.
The other thing is if you’re an NKP, you might be able to establish that you were close to the perimeter at NKP.
Matthew: Tell them about the case you had where you put all the evidence in the Veteran VNN. Is it U-Tapao or…?
Gregg: Yeah, U-Tapao! I was working with a navigator who was at U-Tapao and he was there for about four months. There was a surge when they sent a bunch of B52’s in U-Tapao in ’74 to ’75 timeframe.
His duties required him to go to the revetment area where the B52s where located. Well, the revetment area happened right to be right next to the flight line which happen to be right in the area where they had sapper attack two years earlier. And in order to prevent future attack, they had used a lot of herbicides in that area.
Well, quite honestly, what I found was a BVA decision where a maintenance, a B52 mechanic who worked in that same revetment area was able to establish he was near the perimeter because of where the revetment area was and we were able to establish that the navigator was in the same area as the maintenance person.
They granted benefits in that case. And so we got the board to grant benefits in this veteran’s case.
But that’s the power of these BVA decisions. Go find one that has very similar facts to yours. You don’t have to have the same MOS’s, but if you could show that you were working in the same area as the person that’s been granted benefits, it’s very easy to get the board to grant you benefits also. It doesn’t matter what your duties were, it matters where you were.
Matthew: And Gregg, I had another case who I believe was another attorney that put all these great evidence about Ramasun, being stationed there and where the spraying was going on. The vet happened to have gone TDY to Vietnam. It seemed like miraculously, it got granted.
Gregg: Oh, on the Vietnam part, yeah.
I was working with another attorney and she had a veteran who is Ramasun stationed. We had a hearing at the regional office. I was there, even though I had practiced in front of that regional office, in fact in front of the DRO, he was kind of curious as to why I was there. I said, “Well, I’m here because I was stationed there, so I’m here to testify about Ramasun station.”
And he was a little reluctant to grant benefits based on the Thailand service. But the veteran also went home on emergency leave and he was able to establish that he flew out of Thailand and landed at Tan Son Nhut AFB for about six hours and changed planes.
And so rather than granted on the basis he was at Ramasun station for a year (probably near the perimeter as we all were), they granted in on the basis that he was in Vietnam at Tan Son Nhut AFB for six hours. So we never really got into the issue of the Thailand service. But if we had, I’m pretty sure that we were going to win on the Thailand service issue also.
Matthew: So there’s another question here. Has anyone been successful with the bladder cancer came. And I came back to this slide here just to talk, again, about the presumption of Agent Orange. You have to show that you were exposed. And once you show that you were exposed, then for certain disabilities (there are 15 disabilities), you’re presumed to be service connected for those.
If you don’t have one of those 15 disabilities like bladder cancer, that doesn’t mean your case ends like Gregg talked about. If the presumption fails, they don’t get a per se denial. They actually have to look at direct service connection.
So if you can show that you were exposed to Agent Orange, the next question is medical nexus. So sorry, a long way to answer yes, bladder cancer can be one, but it’s one further onus. First, you got to show that you were exposed. Second, you have to find a doctor to go in and do the medical research to look at is it as likely as not that that cancer was caused by Agent Orange.
Gregg: Now, one quick point there. It’s not enough for your doctor just to say, “In my opinion, this happened,” they got to back it up by what they call ‘sound medical reasoning’. So they’re going to have to cite medical studies, something that connects that kind of condition to herbicide exposure.
Matthew: And again, harping back on what Gregg said, the first place to look is the BVA opinion, first seeing that they’re granting these cases. And second, what’ sthe bases the doctor is relying on. You have to have that foundation.
Gregg: Yeah. Sometimes, they’ll even tell you what the name of the report and that helps you find it, so you can use it for your own.
Matthew: “What exactly defines perimeter? Is there a depth to that and then add 500 feet from that?”
Gregg: Well, first of all, the perimeter is the term that the VA uses and I think it’s probably defined by the edges of the base which is usually contained by a fence. And it’s not 500 feet, it’s 500 meters. So you’re talking about 1500 to 1600 feet.
So the perimeter is probably a fairly accepted concept and that would be the fence line around the base, the outer fence line (sometimes there are two or three fences, but the outer fence line around the base) and I’d say about 500 meters.
And it’s not 500 meters from the perimeter fence, it’s 500 meters from where they would have stopped spraying. And if you consider that the purpose for spraying was to get the vegetation up for observation and fields of fire purposes, it would probably be quite some distance that they would’ve sprayed a hundred yards or so into the base. And then you have the 500 meters from there.
Matthew: I mean, looking at the pictures you have, that one looks a pretty good way in.
Matthew: So this is an effective date question.
“Is the earliest effective date for Thailand claims start when Thailand was recognized as a spot where they sprayed? Or is it earlier if you filed the claim earlier?”
The answer is it’s earlier if you filed the claim earlier. It doesn’t matter when the VA finally came around to admit something. What matters is when you actually put a claim in for it.
So I don’t know, it’s 2010 or so that they released the CHECO Report and you can go all the way back to whenever you filed one.
Oh! So, Da Nang Harbor, there’s a waterway. That’s a case our friend has been working on for a while. What I can tell you right now is that Da Nang Harbor is not blue water and it’s not considered open to the sea. We had a case where the Veterans Court came and it said the VA had no rational basis to say that Da Nang Harbor was blue water and not considered to be sprayed by Agent Orange.
So, I would say that yes, it is an inland waterway. There’s not an official VA interpretation on that yet. I’m hoping that there would be one later this month. But that’s a case you need to file and pursue vigorously at this point.
Alright, just looking over to see if we have any more questions that we can answer.
“How important is it to have your medical and personnel records? I sent off for mine twice, but the recent response was they cannot be found but that the VA might have them.”
I would ask for your VA C-File, your claims file, that’s supposed to have all of those records in it. And frankly, if you ask for it from the VA and you find that it does not contain all your service records, you can tell the VA those are necessary to prove your claim, Gregg alluded to this earlier. They have a duty to assist you. And so, they will have to get them if you were unable to get them.
Gregg: But I’ve got to tell you, nobody cares about your claim more than you do. So anything you can do to get your records – I will tell you, personnel records are vital, maybe not so much your military medical records (and that sounds kind of silly). But at least in the Thailand case, all you really need to do is put yourself in one of those bases. And then you’ve got to figure out how do you prove you’re near the perimeter. You really don’t need your medical records to do that.
So it just depends what purpose you need the records for, but getting your official records are always a good idea. Even if you don’t need it for this claim, maybe there’s a claim two years from now you need to file that you may need those records for. So keep after it until you can figure out where they are.
Matthew: There’s a question here about Eglin Air Force Base.
“There’s an extensive amount of Agent Orange used higher than the concentrations than were used in Vietnam. Has any change been made for claims for being stationed in Eglin?”
So, first of all, there is a presumption that you were exposed during a small period in the ‘70s. That’s on the VA website. If you’re outside of that presumptive time, no change has been made.
But if you do email me, I have an engineering report from the ‘80s showing that in the mid-80s, there were still significant amounts of Agent Orange in certain spray zones (not all throughout Eglin, but where there were concentrated spraying).
There’s a question in here.
“Do I need to file an initial claim for myself or can I use an attorney?”
I think some attorneys will do that for you. My honest advice would be that you could do it quicker if you get an e-benefits report. You can actually go online and file a claim right there. You should have an answer within six weeks to three months.
So you can if you want to work with an attorney. But an attorney is not going to get it to you that fast.
Gregg: There’s one other thing about attorneys. Unfortunately, VA law is such that it’s illegal for an attorney to charge a fee for a veteran on their initial claim, when they’re filing an initial claim. And so for that reason alone, most attorneys won’t do it. It’s only once it goes to the appeal stage that attorneys start appearing in the process.
So it’s not likely, but you can always use certain Veterans Service Organization. The American Legion VFW, they’ve got a great deal of experience in helping get the initial claims filed.
Matthew: And they could do it fast as well. Our attorneys do not have the access to the online filing system that veterans and the service officers have. That would be frankly one of the main reasons why I would say to go with them.
But that brings back to a point that we’ve talked about a couple of times. A lot of these cases will not be won in the regional office. And if you get to the board, that’s a place where you probably do want an attorney or at least you have to feel really comfortable with the law and how to use the facts in your case because unfortunately, they’re going to make you fight this case by case.
Just because a neighbor won, someone you served with won or all the vets you see on the BVA decisions won, that doesn’t guarantee you to win your case.
So, attorney or no attorney, just kind of have your mindset that losing in the regional office is probably to be expected, but you’re going to go all the way to the BVA if necessary.
“Do you have a detailed drift zone for maps for NKP?”
I’m not sure what the drift zone means. I don’t personally have any maps of NKP, but I know there are aerial photos of the base. You can see the picture. You’ve got to be able to get a sense of size by the size of the runway, buildings, things like that to get a fair idea of what would be the 500 meter stand-off. But I haven’t seen any engineer drawings of NKP. It doesn’t matter they don’t exist on the Internet, I just haven’t found them.
“Where can I find unit reports?”
For Air Force, that would be that the Air Force Historic Office that I was talking about. I don’t have access to that information right now. I’ll give it to Matt and he could put it up on his website.
For the army – well, I’ll see if I can get the addresses for all those places and I’m going to ask Matt to put it up on his website.
Matthew: I believe that’s all we had in question. Last question.
“Should you file multiple claims or one claim at a time if you have multiple disabilities?”
Look, if you have multiple disabilities, you can always file one claim. But if this is for Agent Orange herbicide exposure, I would file all those at once. I would be hesitant to file claims that you don’t feel confident that you have. I’ve just seen a veteran file 20 claims. It’s hard to win those.
Gregg: The other thing is if you file multiple claim forms, if you file a new claim while one is still pending, they may stop processing that claim, so they can start handling the new claim.
So quite honestly, my advice is get a final result in the claim you’re processing now before you start filing new claims because you don’t know which direction your claim file is going to go if they’re having to address two or three or four different claims that are going on at the same time.
So I don’t think I would recommend having multiple claims on multiple claim forms. You can file a claim for as many conditions on the same claim form, that’s fine. I don’t recommend filing a claim and then a year later, filing another claim while the first claim is still pending because that could disrupt the processing of that first claim.
Matthew: Alright! Well, that is all the time we have for the questions. We appreciate you all joining us. And Gregg, thank you so much for your insight and your experience. Stay tuned. We’ll have a webinar coming up soon. Thank you. Have a great day!
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