VA rebuked for balking on Agent Orange care

A court says the agency must provide benefits to Vietnam veterans with a type of leukemia.

 

By Henry Weinstein
Times Staff Writer

July 20, 2007


In a stinging ruling, a panel of the U.S. 9th Circuit Court of Appeals in San Francisco ripped into the U.S. Department of Veterans Affairs on Thursday for its continued resistance to paying benefits to veterans suffering from chronic lymphocytic leukemia because of their exposure to Agent Orange.

Thursday's 3-0 decision marked the sixth major ruling against the government by the appeals court or a federal trial judge in a case that started in 1986. It stemmed from a clash between Vietnam veterans and the government over a chemical defoliant used by U.S. armed forces to clear dense jungle in Southeast Asia.

That should read... "many different forms of  known toxic chemical defoliants used by U.S. armed forces at unprecedented toxicity levels and dose rates to clear dense jungle in Southeast Asia."  These toxic chemicals were used as both defensive and offensive weapons by the Department of Defense with some ground massive operations actually commencing with a ground commanders request for aerial spraying of these toxic chemicals in the operational area a few days prior to operational sweeps and commencement of ground operations.  i.e. a prep fire of toxic chemicals no different from calling in for prep fires in an operational area by Artillery.  {Third Marine Division Chronicles}

"What is difficult for us to comprehend is why the Department of Veterans Affairs, having entered into a settlement agreement and agreed to a consent order some 16 years ago, continues to resist its implementation so vigorously, as well as to resist equally vigorously the payment of desperately needed benefits to Vietnam War veterans who fought for their country and suffered grievous injury as a result of our government's own conduct," Judge Stephen Reinhardt wrote in the opinion.

"Whether the Vietnam War was just or not, whether one favored or opposed it, one thing is clear. Those young Americans who risked their lives in their country's service and are even today suffering greatly as a result are deserving of better treatment from the Department of Veterans Affairs than they are currently receiving," said Reinhardt, an appointee of President Carter.

"We would hope," he concluded, "that this litigation will now end, that our government will now respect the legal obligations it undertook in the consent decree 16 years ago, that obstructionist bureaucratic opposition will now cease, and that our veterans will finally receive the benefits to which they are morally and legally entitled."

Judges John Noonan, an appointee of President Reagan, and Milan D. Smith, who was named by President George W. Bush, joined in the opinion.

The above should not be a surprise to anyone much less these judges who "have to know" that our government/VA has never done what these judges (or actual justice requires) have required in their sense of justice.  So lets not read or play games here in semantics of what these judges are saying above.  Their court orders for this run away federal agency means nothing.  They have to know this as well as our Presidents and our Congress.  The question remains is WHY ARE THEY NOT SUPPORTING, AS ALL OF THEM SAY THEY DO, THE VETERANS THAT THEY DAMAGED - THE VETERANS DID NOTHING WRONG EXCEPT SERVE THE GOVERNMENT OR SO IT SEEMS.

The legal battle over Agent Orange started in the late 1970s when Vietnam veterans filed a federal class-action suit in Brooklyn, N.Y., against the manufacturers of dioxin and the federal government seeking compensation for their injuries.  In 1984, the manufacturers — Dow Chemical Co., Monsanto Co., Diamond Shamrock Corp., Uniroyal Inc., T. H. Agriculture and Nutrition Co., Hercules Inc. and Thompson Chemical Co. — agreed to establish a $180-million fund to compensate class members.  The claims against the government were dismissed in that case.

But the veterans pursued their claims in another forum. They sought disability compensation from the Veterans Administration (later renamed the Department of Veterans Affairs), saying the diseases they developed were caused by exposure to Agent Orange during military service in Vietnam.  The agency consistently took the position that only one disease — a skin condition called chloracne — was caused by exposure to Agent Orange.  As of Oct. 1, 1983, the agency had denied 7,709 of 9,170 claims filed by veterans. 

By 2000, a few more than 99,000 veterans from Vietnam who have claimed service-connected benefits and asserted that their disability related to Agent Orange.  Of those 99,000 in 2000 only 7,500 had been awarded death or disability compensations to toxic chemicals and some of those were zero percent awards.  (2000 Oversight Committee)

Out of the entire country being a toxic chemical swill environment only 7,500 unlucky Veterans were effected out of 2.3 million on the ground in Vietnam.

Now I think a sophomore in high school could do the math on that one and see how disingenuous this is really.  No offense to the sophomore.  What is more amazing is that our supposedly educated congress cannot or chooses not to see through nor address  this White House after White House/ Veterans Affairs facade and cover-ups.

The next year, amid concern about possible long-term health effects of Agent Orange, Congress enacted the Veterans' Dioxin and Radiation Exposure Compensation Standards Act to ensure compensation to veterans "for all disabilities arising after [service in Vietnam] that are connected, based on sound scientific and medical evidence."

The Dioxin Standards Act: Congress mandated that the VA Administrator resolve any doubt in favor of the veteran seeking compensation.  This act mandated by congress has never been followed up on as to implementing and how VA was actually in compliance.  You only have to look at the numbers approved and the BVA rulings to see the real facts.

It has always been the policy of policy of the United States, with respect to individual claims for service connection of diseases and disabilities, that when, after consideration of all the evidence and material of record, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of a claim, the benefit of the doubt in resolving each such issue shall be given to the claimant. 30

29 See Nehmer v. U.S. Veterans Admin., 712 F. Supp. 1404, 1408. (N.D. Cal. (1989). wherein the court found after reviewing the legislative history of the Act "that Congress intended service connection to be granted on the basis of "increased risk of incidence" or a "significant correlation" between dioxin and various diseases," rather than on the basis of a casual relationship.

This regulation has been continually and continuously  promulgated by the VA which established an overly burdensome standard by incorporating the causal relationship test within the text of the regulation itself. 38 C.F.R. 1 3.311(d) ("(s] ound scientific and medical evidence does not establish a cause and effect relationship between dioxin exposure" and any diseases except some cases of chloracne) (emphasis added).

VA has continued to deny compensation improperly to veterans with just such claims. In fact, in promulgating the rules specified by Dioxin Standards Act, the VA not only confounded the intent of the Congress, but directly contradicted its- own established practice of granting compensable service-connection status for diseases on the lesser showing of a statistical association, promulgating instead the more stringent requirement that compensation depends on establishing a cause and effect relationship.31

Thus, on October 2, 1989, the VA amended 38 C.F.R. Part 1, which among other things set forth various factors for the Secretary and the Advisory Committee to consider in determining whether it is "at least as likely as not" that a scientific study shows a "significant statistical association" between a particular exposure to herbicides containing dioxin and a specific adverse health effect.33

The above was never done and congress has to know this fact.  Veterans need a "at least as likely as not" by the VA's own rules.  How does what the IOM pronounces apply to the stated rules.  Or how does what IOM is doing apply to the courts rulings of increased risk of incidence or significant correlation.

In my challenge to the President/Government/VA - IOM- and Congress that most of you have seen on PN - how does that challenge with data not conclusively prove "at least as likely as not," and/or significant correlation, and/or increased risk of incidence; or all of the previous listed standards.

For the new folks this is located in file at:  http://www.2ndbattalion94thartillery.com/Chas/Challenge%20to%20the%20PresidentPN.doc

This is a large file.

I think this data would prove in any court of law "at least as likely as not."  Yet thousands are still denied.

As I discussed before if we could ever win one of these without the diseinginuash VA getting in the way then the following with data could be established by the few of us that have collected data and studies and submitted as justification for "inclusion" for associated disorders being statistically significant as well as biological possible:

Non-Hodgkin’s lymphoma, chloracne and other skin disorders, lip cancer, bone cancer, soft tissue sarcoma, birth defects (physical and mental), skin cancer, porphyria cutanea tarda family of disorders and other liver disorders (such as biliary disorders), Hodgkin’s disease, hematopoietic diseases, multiple myeloma, neurological defects (such as neuropathy (any form), and cognitive disorders and deficits), autoimmune diseases and disorders (defined and undefined medical codes), leukemia (both AML and CLL), lung cancer and all forms of obstructive airway diseases (COPD), kidney cancer, malignant melanoma, pancreatic cancer, stomach cancer, colon cancer, nasal/pharyngeal/esophageal cancers, prostate cancer, testicular cancer, liver cancer, brain cancer, neuropsychological effects, gastrointestinal diseases, amyloidosis (primary, secondary, or toxic chemical tertiary), macroglobulinemia (in any form), forms of osteoporoses and/or bone loss due to avascular necrosis, spondylosis, radiculopathy (including herniation of the nucleolus pulposus), brain atrophy, brain infarction, ischemic heart disease, hypertension, vasculopathy, vascular diseases, valvular heart disease, MS, Parkinson’s, ALS (degenerating neurological disorders.) 

But if we cannot win just one,  then it is futile to continue on which is what our government would like I am sure with Fred Wilcox's book hitting the preverbal nail on the head.  "Waiting for the Army to Die."  Which is seems our own congress is also waiting for this moment in time.

Of course now we know since 1991 that the IOM is now recommending presumptive disorders to our Toxic Chemical Legacy and VA has clearly stated in congressional oversight that they have approved all that IOM has recommended.  What we do not know is; what level the IOM is considering and does it match what the courts have ruled and what at least in a perceived congressional propaganda their intent for the nations toxic chemical Veteran Victims.  This is why in my post at: http://www.2ndbattalion94thartillery.com/Chas/9thcircuit.htm I discussed the meeting on August 9th where IOM is supposed to present Presumptive Disorder Processes. About 17 years too late for many dead and disabled Veterans.

I would suggest here - that all of you contact the Disability Commission at: VETERANS@VETSCOMMISSION.COM and demand they know what IOM is doing, what levels they are doing this to, and more importantly how that applies to at least the facade declarations by congress and the Dioxin Act and the courts rulings discussed above.  In addition, how long have they been doing what they are going to present and what have they been doing the last 16 years.

I would also suggest that you copy that and send it to your favorite congresspersons, favorite senators, go to the internet and find the Senate and House Veterans Affairs Committee's and send it to them, and also the judiciary committee's.

I cannot stress how important this meeting is going to be for all Veterans where the IOM is deciding our fate as to presumptions of government causations - not just Vietnam Veterans, widows and offspring - but all Government Victim Veterans.

In 1986, angry veterans, represented by the National Veterans Legal Services Program, sued the VA, challenging the way the agency was handling claims for disability benefits filed under the new law by thousands who served in Vietnam.

Nearly three years later, after extensive proceedings, U.S. District Judge Thelton E. Henderson of San Francisco rejected the VA's procedures and ordered the agency to reconsider the claims of more than 31,000 veterans.

Henderson ruled that the VA wrongly required proof that the herbicide caused various diseases.  He held that the agency's adoption of a cause-and-effect requirement, rather than the lower standard of a statistical connection, violated the federal dioxin compensation law.  In addition, Henderson concluded that the agency had failed to give veterans' claims "the benefit of the doubt" standard to which they were entitled.

"These errors, especially sharply compounded with one another, sharply tipped the scales against veteran claimants," Henderson wrote. He ordered the government to reopen all claims denied under the rules the agency had been using.

That ruling was a major victory, said Barton Stichman of the Veterans Legal Services Program, who has been the lead lawyer for the plaintiffs. In addition to reopening claims, it led to further congressional actions — chief among them 1991 legislation that compelled the VA to contract with the National Academy of Sciences to conduct independent studies of which illnesses could be attributable to Agent Orange.

As above we have no idea to what level the IOM is working and if it meets the intents of our congressional propaganda discussed above or the courts rulings.

Since then, Stichman said, Vietnam veterans suffering from Type 2 diabetes, lung cancer, multiple myeloma, larynx cancer, trachea cancer, Hodgkin's disease, non-Hodgkin's lymphoma, soft-tissue sarcoma and prostate cancer have received $30 million in disability benefits.  The VA asserted that veterans were not entitled to retroactive disability benefits over prostate cancer, but Henderson and the 9th Circuit ruled in their favor several years ago. 

I would also like to point out an interesting observation with the VA.  When the first mortality disorder was announced I believe it was in 1991.  Derwinski even pronounced how much is was going to cost.  So we must ask ourselves was this for budgetary reasons only.  Or if the inclusive disorder was going to cost five times that amount, would we still not have that first disability disorder?  What about ten times the estimated amount.  What about 20 times the estimated amount.  Or do we take from this pronouncement that if the VA had estimated the cost was too high to support Veterans in government caused death and disability would the executive branch pressure be felt from the halls of the White House.  Similar to the White House memo put out by the Reagan/ Bush White House because that administration did not want the cost involved. (2)

The White House Bureau of the Budget put out a memo to all the agencies of government in essence not to find a correlation between Agent Orange and health affects.  Stating that it would be most unfortunate for two reasons:

 

A) The cost of supporting the Veterans.

B) The court liability to which corporations would be exposed.

 

Does that memo sound like our government supports Veterans as they constantly crow and then do not back it up with action or as long as they get the votes.  Or as the possible scenario above - only if it does not cost too too too much for those votes.

Subsequently, the VA resisted making retroactive disability payments for chronic lymphocytic leukemia (CLL), one of the four main types of leukemia. Over time, according to medical studies, the dangerous cells multiply and replace normal lymphocytes in the marrow and lymph nodes. CLL cells are not able to fight infection like normal lymphocytes do.

In December 2005, Henderson ruled in favor of the plaintiffs on the CLL payments. The VA appealed, leading to Thursday's 9th Circuit ruling. 

The VA did not respond to phone calls seeking comment.  A spokesman for the Justice Department, which represented the agency in the case, said the department was reviewing the ruling and had no further immediate comment.

Plaintiffs' attorney Stichman, who has been litigating on behalf of veterans for more than 30 years, said he was pleased with the decision but remained troubled that "the VA has been an obstacle to justice for veterans exposed to Agent Orange. It is very hard to change the ocean liner that is the VA." He said he expected that Thursday's ruling would lead to many millions in benefits for disabled veterans.

Orlandes Shuemake, who repaired sighting mechanisms on heavy artillery such as howitzers in South Vietnam in 1969 and 1970, said he hoped the decision would help other veterans like himself who suffer from chronic lymphocytic leukemia.  Shuemake, who is 58 and lives in Hercules, 25 miles northeast of San Francisco, said lymph nodes in his neck began to swell in 2001 and soon thereafter he was diagnosed with the disease.

"I am no longer able to work the way I used to," said Shuemake, who worked in telecommunications for many years after being discharged from the Army, where, he stated proudly, he had earned a Bronze Star. 

He said that the VA "blew me off" when he initially attempted to get help after discovering that he had CLL. 

"With the help of the Veterans of Foreign Wars," Shuemake said in a telephone interview, "I felt that there was a pathway to get some support."