Monday, June 30, 2008

Lost At Sea: The Vietnam “Blue Water Navy” Vets Case

Lost At Sea: The Vietnam “Blue Water Navy” Vets Case
by Mark Weitz

For ten years, between 1965 and 1975, three million young Americans, many of them still boys, answered their country’s call and served as soldiers, sailors, airman, and marines in Vietnam. Some were drafted, but many volunteered, and at the time the cause seemed clear: stop the spread of communism. By the late 1960’s the goal became obscure. The war fell out of favor as Americans began to question our involvement in a conflict that drained both human and financial resources and seemed to bring few tangible results. In the end Vietnam became a symbol of the limits of American power and influence. Sadly, a foreign policy and military set back became a national tragedy as the denunciation of the war at home evolved into a rejection of those who fought. Over fifty-eight thousand never returned and those who did brought back scars, both physical and emotional, that never healed. Overt ridicule gradually dissipated, only to be replaced with a callous indifference to the sacrifice these men made. It would only get worse for many of these veterans because what no one knew at the time was that they had carried back the seeds of their own destruction, seeds sown not by their enemy, but by their own country.

Known as “Operation Ranch Hand” the defoliation of Vietnam’s jungles exposed American servicemen to a toxic and deadly chemical. Spread over 3.6 million acres, Agent Orange not only killed the jungle down to the root, but by the 1980’s it was permanently disabling and killing Vietnam veterans by the tens of thousands. In 1984 Dow Chemical, Monsanto, and other chemical companies involved in the manufacture of Agent Orange agreed to a 180 million dollar class action settlement to be paid to Vietnam Veterans. However, when spread out over the hundreds of thousands of eligible vets the amount was woefully inadequate. In many cases, the money provided the means to bury them as they succumbed to the diseases caused by the toxin. In 1995 this author’s uncle, William P. Weitz, was laid to rest in Phoenix, Arizona after losing his battle with lung cancer. His part of the settlement afforded him a small box in which his cremated remains were placed and then interned in a barren, sun scorched portion of a cemetery close to his home, leaving only a few thousand dollars for his widow.

In an effort to address this deadly legacy of the war that had become an epidemic, the United States Congress passed the Agent Orange Act of 1991. Section 2 of the Act contains one of the most important aspects of the legislation. It provides for a presumption of a service related connection between the diseases and conditions identified in the Act and the spraying of Agent Orange. In other words, if one served in Vietnam, it is presumed that the cancer or other condition he or she suffered from was caused by Agent Orange. Legally this presumption is crucial. Without it, the veteran bears the burden of proving his or her condition was caused by Agent Orange. The cost alone would destroy a vet’s ability to prove his claim. Even if he or she could afford to pay the experts necessary to argue the claim, showing the direct connection would in many cases be impossible.

The Veterans Administration (VA) was directed to implement a program under the Act whereby veterans would be compensated for the effects of exposure. The VA directed that any service man or woman who “served in Vietnam” would be presumed to have been exposed for purposes of receiving compensation. In many cases the receipt of a Vietnam Service Medal was all that was required. As one might expect hundreds of thousands of claims poured in, and the VA began paying. Among those who filed claims were the sailors of the United States “Blue Water Navy.”

There were essentially two navies serving in Vietnam. The “Brown Water Navy” patrolled the rivers and inlet waterways of Vietnam, while the “Blue Water Navy” served offshore, both inside and beyond Vietnam’s twelve mile territorial limit. Many of the countless air strikes both on North Vietnam and in close air support of U.S. soldiers fighting in the south and the DMZ came from carrier based aircraft. U.S. Destroyers provided myriads of combat related services, including close artillery support for land-based operations, and transporting troops and supplies, often close to shore and under enemy fire. It is virtually inconceivable that anyone could ever doubt that the men who served in the “Blue Water Navy” fought in Vietnam. In addition to receiving the Vietnam Service Medal, many were decorated for valor. Sadly, the inconceivable occurred.

Shortly after George W. Bush took office in 2001 the VA redefined “serving in Vietnam.” In a directive issued in 2001 the VA took the position that service in Vietnam now required “foot on land.” If a veteran could not show that he or she actually set foot in-country, they would not be afforded the presumption that their medical condition or disease was caused by Agent Orange. In one bold stroke the sailors of the “Blue Water Navy” lost their ability to successfully prosecute their claims for benefits. The VA offered no study or empirical evidence for this complete reversal of policy other than the assertion that direct exposure to Agent Orange required being on land.

Not only did the VA alter its policy without any reasonable basis, but it also ignored the fact that “Blue Water” sailors were suffering and dying from the same diseases that their land-based comrades experienced. However, without the presumption afforded by the Agent Orange Act they could not prove their claims for benefits. By 2003 the benefits that “Blue Water” sailors had been receiving stopped completely. Today many are owed almost five years of back benefits that for many vets totals well into the six-figure range. The goal of the 1991 Act was to make it easier for veterans to prove their claims and receive compensation. The VA’s position flies directly in the face of that goal. But while the U.S. government found a way to punish its sailors for their service, other nations took a closer look, and their approach makes the VA’s actions toward the “Blue Water Navy” all the more disgraceful.

Sailors from Australia also served in Vietnam. As time passed Australia began to notice that veterans of its Royal Australian Navy (RAN) were dying at a rate greater than the land-based Aussies who fought in Vietnam. The conditions that were killing these men were the diseases associated with Agent Orange. Food for the RAN came directly from Australia, there was no record of a RAN ship ever being directly sprayed, and few of the sailors ever set foot on land. However, rather than conclude that members of the RAN were not exposed and thus were not entitled to benefits, the Australian government probed deeper. Australia’s investigation generated a report that explained how its sailors were exposed.

Warships require a constant supply of freshwater and that supply is replenished by distilling sea water. The sea water is fed into an evaporator where it is boiled, condensed, and then fed into holding tanks. While the process removed the salt from the water, it did not filter out the toxins associated with Agent Orange. This process routinely took place within close proximity to shore as military operations did not allow a ship to cease its mission, travel out to sea, replenish its water supply, and then return. The Australian study concluded that Agent Orange sprayed in the jungles close to shore found its way into the ocean and that when the RAN ships replenished their water supply, they unknowingly contaminated their sailors and exposed them to Agent Orange.

The VA is aware of this study, but rather than use it as a basis to help the “Blue Water Navy” sailors, it has chosen to discount the findings and deny that these men served in Vietnam for purposes of the 1991 Act. In August 2001, Jonathan Haas, a veteran who served on the U.S.S. Katmai, filed his claim for benefits under the 1991 Agent Orange Act. Consistent with their change in policy the VA rejected his claims because it was undisputed that Haas never set foot in Vietnam. Mr. Haas appealed to the Veterans Court where a three-judge panel reversed the Veterans Board decision, holding that the VA definition of service that required “foot on land” was too restrictive and was unreasonable. The Court concluded that Mr. Hass was entitled to the presumption. In most instances that would have ended the debate; Mr. Haas and the other veterans could have advanced their claims with the benefit of the presumption they were rightfully entitled to claim. However, that is not what happened.

On May 8, 2008, in a 2-1 decision, the U.S. Court of Appeals for the Federal Circuit reversed the Veterans Court and upheld the VA’s definition that “service in Vietnam” required foot on land. Admitting that they “ordinarily will not hear appeals from the Veterans Court in cases the Veterans Court remands to the Board of Veteran’s Appeals,” the Court not only made an exception, but used the exception to destroy the ability of the “Blue Water Navy” veterans to prove their Agent Orange claims. In holding that the VA’s definition was “reasonable” the Federal Circuit in effect completely discounted the sacrifices made by this branch of the U.S. military, sacrifices that they continue to suffer for today.

The “Blue Water Navy” vets are literally lost at sea, adrift on an ocean of legal technicalities and administrative burden that most if not all will never overcome if this situation is allowed to stand. Recently these veterans began to return their Vietnam Service Medals in protest of the treatment they are receiving at the hands of the very government that sent them off to war. Mr. Haas has requested an en banc review of his case before the entire panel of the Federal Circuit. That request is pending. If denied it is contemplated he will appeal to the Supreme Court. Right now the most important thing that can be done for these men is to publicize the details of their plight. At this juncture access to media outlets is crucial to educating the public as to what is transpiring, which is one reason we chose to publish this edition of the newsletter solely on this topic. Time is running out for these Vietnam veterans. Many are dying from their diseases, while others are taking their own lives as their conditions worsen and any hope for a favorable resolution diminishes. There is still a chance for America to meet its obligations to its veterans. Remember, all that is needed for wrong to prevail is for righteous people to do nothing. END OF ARTICLE.

"Legal Alert Newsletter", June 2008, a monthly publication of the Weitz Morgan Law Firm, of Austin, Texas. www.weitzmorgan.com

Dr. Mark Weitz is a practicing attorney and an historian who has joined the Blue Water Navy fight.
Thank you Mark. Well done [BZ].

VNVets

”It is a stain on this nation's honor that the Department of Veterans Affairs has become a deadlier and more difficult adversary to the American veteran than any they have ever faced on a battlefield."-- VNVets

"The concept that Agent Orange, and its effects, stopped dead in its tracks at the shoreline is simply too illogical, and too ludicrous to accept. What does that say about the Bush Administration and his Department of Veterans Affairs?"--VNVets

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." --President Abraham Lincoln

"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious."--President George Washington

Copyright © 2005-2008: VNVets Blog; All Rights Reserved.

Sunday, June 29, 2008

Attention All Houston, TX BWN Vets!


Attention all Blue Water Navy Veterans from the Houston, Texas area. We are mounting a push on State Senator Dan Patrick, 7th District. He seems to think the Blue Water fight is strictly a Federal issue. Let's wake Danny up with a message.


Please send us an email with your return email to this Blue Water Navy email box. An attorney from Texas will respond to you with information on how you can help get this guy moving on an effort to have the Senate of Texas get a resolution going to back the Blue Water Navy fight, and send said resolution to the Texas delegation in the US Congress!


Thanks sailors!


VNVets


"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." -- President Abraham Lincoln


"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious." --President George Washington


Copyright © 2005-2008: VNVets Blog; All Rights Reserved.

Friday, June 27, 2008

Plan of the Day!

Now hear this:

Please make sure you read the directions for adding a ship to the Blue Water Navy Ships of Vietnam, and understand this is not an official definition of Blue Water Navy service we are using here. Simply put, if your ship entered port, or went up a river or other estuary, your ship is NOT eligible for inclusion in our list. Our list is NOT an official resource! Do not use it for your claim!

When making comments, you must use the comments link at the bottom of each post. If you are contacting me and looking for a response, DO NOT USE THE COMMENTS SECTION, use the emailme link on the left sidebar.

Please make sure you review your comments for spelling, and grammar; also if you are passing along facts, statistics, or other information, please make sure you cite your sources, and provide a link. For those of you concerned with "censorship" understand that the comment process is designed just for that. We have in the past rejected comments that were too political, contained objectionable words or phrases, was nothing more than an ad hominem attack, or had absolutely nothing to do with Blue Water Navy issues.

Again, if you wish to send a message to us, use the emailme link. Anonymous comments do not provide any way of identifying who the sender is, and therefore, we cannot mail any response, or questions we might have.

Whatever you do, do not give up the ship! Do not lay down and roll over because the court ruled against us. Make sure you keep that fighting attitude you had when off the coast of Vietnam.

We have not lost this fight! We just haven't won it yet! Do not secure from GQ!

VNVets

”It is a stain on this nation's honor that the Department of Veterans Affairs has become a deadlier and more difficult adversary to the American veteran than any they have ever faced on a battlefield."-- VNVets

"The concept that Agent Orange, and its effects, stopped dead in its tracks at the shoreline is simply too illogical, and too ludicrous to accept. What does that say about the Bush Administration and his Department of Veterans Affairs?"--VNVets

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." --President Abraham Lincoln

"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious."--President George Washington

Copyright © 2005-2008: VNVets Blog; All Rights Reserved.

Wednesday, June 25, 2008

NVLSP Files for Review of Haas Decision

The National Veterans Legal Services Program [NVLSP] filed its brief with the United States Court of Appeals for the Federal Circuit [CAFC] requesting an en banc review, or a re-hearing of the Haas case. This is the same court that in May issued the stunning reversal of the lower court [United States Court of Appeals for Veterans Claims, or CAVC] in Haas vs. Peake.

The brief lays out the case where the NVLSP attorneys believe the CAFC erred in Haas. In essence, the NVLSP contends that:

    1. Congressional intent when it enacted the Agent Orange Act in 1991 was to include Blue Water Veterans. Service in Vietnam must include those who served off shore in "territorial waters" because ALL accepted legal definitions of national territorial sovereignty recognize adjacent waters as a part of the national territory. Boundaries drawn around a nation do not coincide with a shoreline, but with a territorial limit, usually 12 miles out to sea for any coastal areas. National sovereignty is extended to that maritime territorial limit.
    2. The court ignored Supreme Court dicta which places deference to government agencies must always come after resolving cases of statutory ambiguity in favor of the Veteran.
    3. "Foot on the Ground" policy violates all precedential case histories, and is made wholly wwithout the benefit of scientific evidence that Blue Water Sailors were NOT exposed to Dioxins.
We would like to address the last two of these points.

One of the cornerstones of the DVA's oral arguments last November was that the Department was entitled to deference to allow it to interpret the law as the exclusive agency suited to interpreting the law it was to administer. It is, we believe, the basis for the majority decision in Haas by the CAFC last month which said the "foot on the ground" rule was "permissible". That was the majority opinion's word: "permissible".

Deference to an agency is given because the law recognizes that the agency, in interpreting Congressionally enacted laws into administrative policy should, by right, have the expertise to do so. In Haas, the Department of Veterans Affairs [DVA] argued that it pretty much didn't matter how the DVA interpreted the laws that Congress passed that dealt with Veterans Affairs because as the agency that deals in that area, they have the expertise to do so. [Agencies like the DVA frequently work with Congress in constructing laws that Congress later enacts. This adds to their expertise.] This is called the Chevron defense from the caselaw of a precedential decision.

What the brief points out is that precedential cases from the CAFC and the Supreme Court have repeatedly and historically relied on what is called the Pro Veterans Canon: "The Supreme Court has instructed that, before applying Chevron deference, any interpretive ambiguity in the statute must be resolved in the Veterans favor."[Section II on page 12 of the NVLSP brief in the Haas case.]

In reference to the Foot on the Ground policy being without scientific evidence to prove there was no Agent Orange exposure at sea, it is something we have been saying for a while here. We even emphasized it in both our recent comments on the propsed rule change of the Definition of Service in Vietnam. It is what makes Mr. Hughes [the DVA's arguing attorney in the oral Aarguments last November] so glaringly arrogant [and dishonest] when he dismissed the Australian Study as being "of questionable science". At least the Australian Study exists, and it proves the Blue Water Navy's case. But the DVA dismisses it, ignores it, supresses it, in spite of having no scientific evidence of their own to disprove it, or to prove that Blue Water Navy Veterans were not exposed.

While this request for an en banc review, or a rehearing is powerfully constructed, and damning in its laid out arguments and citations of case law precedent that were misinterpreted or ignored by the CAFC, we are still at the mercy of the court. It is only a request. The court does not have to agree to an en banc review, which would proceed on the basis of this brief to compare it to the May decision in the Haas case, or would grant a re-hearing, probably another session of oral arguments in the Washington, D. C. Court building where the CAFC convenes.

We were impressed with the brevity and terseness of this brief. We think this is an excellent petition.

Now we wait for the court to decide whether to take the case underreview, and if so, how. [Note: If the court grants the review, and overturns the decision from May, do not be surprised if it only extends to the 12 mile limit. This is hit hard in the brief filed by the NVLSP, and they do a good job of linking it to the extended Combat Zone, which generally coincides with the eligibility for the Vietnam Service Medal. Nevertheless, this was a topic hit hard in the oral arguments, and again in this brief. Just be aware of the possibility. That said, we find it very difficult to believe that the DVA would enforce that to the extent of tracking ship movements, and verifying ships positions. All the more reason to get copies of your ships' log books entries for the periods you were in the Combat Zone. You can get this information from the National Archives and Records Agministration [NARA] in College Park, Maryland. If you can't get there, you can request copies of the documents from NARA for a cost. It isn't exorbitant, but it is not cheap either. So do your own research if you can. Check your ship's website for copies, many of them do have the logs posted. You can also contact other crewmembers to see if they have copies. See the link
Where to get Navy Ship's Deck Logs in the link section of the left sidebar, and our post Obtaining & Using Documents to Support Your Claim [VA and SSA] under the "Useful Posts" section of the right sidebar.

In the meantime, keep sending your medals back, keep pressuring your Senators and Representatives, the media, and all the Veterans Service Organizations. Don't sit back and wait for this to rescue you. The NVLSP has done a beautiful job in stating its case. Let's keep pushing ours.

[Read the
Petition for an En Banc Review by the NVLSP]

VNVets

”It is a stain on this nation's honor that the Department of Veterans Affairs has become a deadlier and more difficult adversary to the American veteran than any they have ever faced on a battlefield."-- VNVets

"The concept that Agent Orange, and its effects, stopped dead in its tracks at the shoreline is simply too illogical, and too ludicrous to accept. What does that say about the Bush Administration and his Department of Veterans Affairs?"--VNVets

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." --President Abraham Lincoln

"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious."--President George Washington

Copyright © 2005-2008: VNVets Blog; All Rights Reserved.

Time to Stand Tall and Come Together

The recent Haas decision was a severe setback for all of us Blue Water Navy Vietnam Veterans, our families and survivors.

You may be depressed, and possibly ready to drop the whole thing.

And you would be wrong.

You may very well be closer to achieving victory than you have ever been since the DVA unilaterally decided to stop Agent Orange benefits to us in 2002.

What's that he said?

We said you are likely closer to benefits now than anytime since the 2002 cutoff.

First, the NVLSP is asking for an en banc review of the Haas decision by the US Court of Appeals for the Federal Circuit. This review asks the rest of the court's justices to look at the decision and make a judgment as to the validity of the decision. There can be more than a few different outcomes from this review...and that is dependent on whether the court agrees to conduct an en banc review. Trying to get a timeline for this action is nearly impossible since there is very little history to to go on as this is a rare occurance.

If the en banc review fails, the next step is the Supreme Court.

Meanwhile, there are other efforts for you all to get behind. We have said for a very long time that we should not place all our hopes and prayers on the Haas case, and the last court decision bore us out on that.

Even though we have had little success in getting the attention of Congress focused on the Agent Orange Fair Compensation Act, we should continue hammering away at our Senators and Representatives to get on board the bill and sponsor it.

Another initiative would be to ask Congress to pass a resolution modeled along the lines of the Agent Orange Fair Compensation Act [an idea sent to us by one of our readers - and a good idea it is, too!] that expresses the will of Congress on the matter. This idea may see more success than passing the act itself. Once passed, such a resolution could be used to force the DVA to roll back the blockage of benefits for Blue Water Veterans.

Other legal efforts seek to move for granting of benefits for anyone who applied between the cutoff date in 2002, and whenever the new "definition of service in Vietnam" goes into effect. Said claim denials were done via agency error, and as such, prior policy should still have been in effect [the DVA never posted the changes for Public Comment before making the M21-1 Manual change in 2002, thus depriving the public of due process in the change.] Courts take a dim view of such events.

We are in more than a "hurry up and wait" mode, we are also in an action mode, and the more pressure you place directly on your Senators and Representatives the greater the chance of achieving success. It may be to your benefit to have an attorney represent you if your claim is denied.

Pressure. Multi front pressure. It is classic military strategy and tactics. So the last thing you can do right now is quit.

Consider this a recall from liberty, the ship is getting under way and heading for sea and action. It is time to come together and pull in the same direction. Do not allow your spirits to flag, but stand tall and let's go spit in the eye of the DVA!

VNVets

”It is a stain on this nation's honor that the Department of Veterans Affairs has become a deadlier and more difficult adversary to the American veteran than any they have ever faced on a battlefield."-- VNVets

"The concept that Agent Orange, and its effects, stopped dead in its tracks at the shoreline is simply too illogical, and too ludicrous to accept. What does that say about the Bush Administration and his Department of Veterans Affairs?"--VNVets

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." --President Abraham Lincoln

"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious."--President George Washington

Copyright © 2005-2008: VNVets Blog; All Rights Reserved.

Friday, June 20, 2008

Operation Medal Return II

[Note: We have extended the time for you to respond to the poll on trouble with Public Comments. If you have not responded yet, please do so. Thank you!]

Apparently the DVA is scrambling now. The DVA has posted an additional 7 comments today and 9 attachments!

An interesting phenomenon occurs when doing a sort command on the pages listing all the comments. You find comment number 90 and comment number 84 mixed in with the comments in the 50s and 60s when you sort by date, yet the date on them shows June 18 or 19.

This seems to indicate that the DVA was holding those comments for a very long time. Posting them now would indicate a possible response to pressure and complaints about their system.

We still suspect the DVA of intentionally interfering with the Public Comment process to the point that it was disruptive to the point that many people were unable to post their comments. This violates your civil right of due process under the law, a legal precept that dates back to the Magna Carta, signed under the Charter Oak in Runnymede England in 1215 by King John of England, and is the foundation of our civil laws.

The fact that the DVA apparently stripped the names off the headers after mid-May makes the search extremely time consuming and tedious, AND PROHIBITIVE: YOU MUST OPEN EACH ONE AND KEEP DOING SO UNTIL YOU FIND YOUR COMMENT, IF IT IS THERE AT ALL.

Now, with the comments still being posted for public view, two questions are evident:
  1. Is the public permitted to comment on the comments?
  2. Will the DVA consider these comments since it has changed their posting date to after the comment period ended?
Inquiring minds want to know. We will be sure to apprise the U.S. Commission on Civil Rights and the U.S. Attorney General's Office of the Inspector General of these additional issues.

Top management of the Department of Veterans Affairs, that is, just about everyone from mid-level management all the way up to the Secretary, are a bunch of quisquilian political sycophants, and ex-military REMFs who are committed to making Vietnam Veterans continue to pay the price for serving in that war. Ladies and Gentlemen, these folks are still spitting on us!

Are you mad enought to send your medals back now?
Mail the following letter, accompanied by your VSM, VCoG, or VCM to Senator Akaka, Congressman Filner, and President Bush today!

Senator Daniel Akaka
United States Senate
141 Hart Senate Office Building
Washington, D.C. 20510

Dear Senator Akaka,

As the Department of Veterans Affairs has interpreted the Agent Orange Act of 1991 to preclude presumptive exposure to dioxins in Blue Water Navy Veterans, and as the United States Court of Appeals for the Federal Circuit has opined that such a definition is a "permissible" one, and as Congress, by its silence, has failed in its responsibility to make clear what the definition of "Service in Vietnam" is, I am returning the Vietnam Service Medal I received for Blue Water Naval Service in the Vietnam War. Apparently I did not serve in Vietnam, according to the DVA, the USCAFC, and apparently the US Congress.

Respectfully,

[sign your name]

Congressman Robert Filner
2428 Rayburn House Office Building
Washington, DC 20515

Dear Congressman Filner,

As the Department of Veterans Affairs has interpreted the Agent Orange Act of 1991 to preclude presumptive exposure to dioxins in Blue Water Navy Veterans, and as the United States Court of Appeals for the Federal Circuit has opined that such a definition is a "permissible" one, and as Congress, by its silence, has failed in its responsibility to make clear what the definition of "Service in Vietnam" is, I am returning the Republic of Vietnam Cross of Gallantry and/or the Vietnam Campaign Medal I received for Blue Water Naval Service in the Vietnam War. Apparently I did not serve in Vietnam, according to the DVA, the USCAFC, and apparently the US Congress.

Respectfully,

[sign your name]


President George W. Bush
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500

Dear Mr. President,

As the Department of Veterans Affairs has interpreted the Agent Orange Act of 1991 to preclude presumptive exposure to dioxins in Blue Water Navy Veterans, and as the United States Court of Appeals for the Federal Circuit has opined that such a definition is a "permissible" one, and as Congress, by its silence, has failed in its responsibility to make clear what the definition of "Service in Vietnam" is, I am returning the Republic of Vietnam Cross of Gallantry and/or the Vietnam Campaign Medal I received for Blue Water Naval Service in the Vietnam War. Apparently I did not serve in Vietnam, according to the DVA, the USCAFC, the U.S. Congress, and apparently you.

Respectfully,

[sign your name]
Send those medals folks, and copy your letters to the local paper, and as many national media outlets as possible. Mine are in. I, for one, am tired of being spit on.

VNVets

”It is a stain on this nation's honor that the Department of Veterans Affairs has become a deadlier and more difficult adversary to the American veteran than any they have ever faced on a battlefield."-- VNVets

"The concept that Agent Orange, and its effects, stopped dead in its tracks at the shoreline is simply too illogical, and too ludicrous to accept. What does that say about the Bush Administration and his Department of Veterans Affairs?"--VNVets

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." --President Abraham Lincoln

"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious."--President George Washington

Copyright © 2005-2008: VNVets Blog; All Rights Reserved.

Thursday, June 19, 2008

USA.gov Passes the Buck, Points to DVA!!!!

We filed a complaint with USA.gov last evening as we mentioned in our previous post. We got a response a short time ago from them. Here is the relevant passage:

"The electronic comments you submit directly through the Regulations.gov Web site are transmitted to the proper Department or Agency. The Department or Agency receiving your comment is considered the official custodian of the comment. Your comment will not be considered until it has been properly received by that Department or Agency in accordance with the requirements described in the Federal Register document. Users who want to verify that a Department or Agency has received their comment are urged to check directly with that Department or Agency."
This, or course, is Government-speake for "You got the wrong outfit, bub! Blame any problems on the Department of Veterans Affairs!"

As we suspected, the way the DVA handled the public comment period was inept at best, and absolutely criminal more likely.

We did indeed file complaints with the US Attorney Gerneral's Office of the Inspector General, and the U.S. Commission on Civil Rights.

Why? Because the prolems encountered in attempting to make public comments [78% of those who tried to comment had a problem doing so!] amount to the suspension of due process, and that is a basic civil right of all of us. Since most of us are included in the group to be affected by the proposed rule, were were discriminated against by the DVA through the problems encountered in posting.

Since there were apparently no similar problems in making comments on the Manual M 21-1 Recission a few months ago, to encounter problems on this proposed rule takes on the appearance of deliberate interference by the DVA.

Indeed, some of the problems would not come under the auspices of the DVA. When the website went down and posters could not make comments, or when you were able to make a comment to the point of submittal, but the button to submit would not work [we have a helpdesk message trail on that one], these are issues which fall squarely in the lap of Regulations.gov, and their parent USA.gov. The rest of the USA.gov response completely ignored those issues. We fired back a rebuttal and gave them extremely poor grades on their performance on a survey I was asked to take.

In addition to the Attorney General and the U.S. Commission on Civil Rights, we left copies of our complaint with the Office of Inspector General of the Department of Veterans Affairs, asking that officer to forward the complaint to the Office of General Counsel, and the office of the Secretary.

Our aim is to get the AG's OIG, and the US Commission on Civil Rights to investigate both the USA.gov/Regulations.gov agencies and the Department of Veterans Affairs for complicity in denying due process to those who wanted to make public comments.

We no longer give the DVA the benefit of the doubt and say it was an accident, or a computer glitch. The DVA MUST be held accountable. If you are a Blue Water Navy Veteran of the Vietnam War, you know full well how out of control the DVA is.

We will keep you posted on the responses we get...or don't as the case may be. [After a reasonable amount of time we will follow up with those agencies.]

In the meantime, another issue has arisen. Since the DVA is processing all the comments, and since mid-May has been stripping IDs off the comments, it is very difficult to track your comment. You can do so with your tracking number that you received with the receipt after making your comment.

We suggest that find your comment on the board and very carefully compare it to your draft copy [you did make a draft copy of your comment, didn't you????] looking for discrepancies. Most likely they won't exist, but let's carefully cover all the bases.

Finally, one last issue. Since the public was permitted to comment on comments, how is the public to do that when the last third of all comments made did not get posted until today, two full days after the comment period closed?

You should go to the last page of comments [ignoring the three at the top that have no bearing on the proposed definition of "Service in Vietnam"], and read them. Some heavy hitters lined up on our side, i.e. VVA, NOVA, Kelly Franklin, from Canada, and more.


[
Click Here to view the latest submissions]

Stay tuned. It is becoming more and more obvious that the Department of Veterans Affairs is run by a bunch of civilians and REMFs.

VNVets

”It is a stain on this nation's honor that the Department of Veterans Affairs has become a deadlier and more difficult adversary to the American veteran than any they have ever faced on a battlefield."-- VNVets

"The concept that Agent Orange, and its effects, stopped dead in its tracks at the shoreline is simply too illogical, and too ludicrous to accept. What does that say about the Bush Administration and his Department of Veterans Affairs?"--VNVets

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." --President Abraham Lincoln

"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious."--President George Washington

Copyright © 2005-2008: VNVets Blog; All Rights Reserved.

Wednesday, June 18, 2008

Where did my comment go?

Regulations.gov, the outfit that runs the public comment system for the Federal Government has a major problem, one of Mongolian proportions!

We made a comment on June 12. That comment has yet to appear, in spite of a receipt number for making the comment.

UPDATE: We have received notice just moments ago- 0800 Eastern -- that Regulations.gov has posted 30 some comments, and 10-15 attachments [posting date June 18], including ours. None of the comments posted yesterday [apparently] were marked with the commenter's name. This appears to have begun after mid-May. [Update made at 0815 Thursday 19 June 2008].

We received notice of comments made on June 13, and those comments did not include ours.

We also note that all comments made after May 16 were made without publicizing the names of those who made the comments.

We searched for a record of our comment using the receipt number and were directed to some Aviation comments and proposed rules. Our comment was not there. We have double checked to make sure that the comment was made in the correct location, that is, for the proposed change of the definition of "Service in Vietnam" by the DVA. It has simply vanished. And the comment period closed on June 16, before the end of the day.

We received the last notification of new comments on June 13, two days after the one on June 11. We have not received any further notifications.

We have made two requests via the help desk to find our comment, and have been met with a stony silence. Suddenly the helpdesk isn't so helpful...to the Veterans.

Frankly, there is too much wrong here. It should be obvious by now that someone is tampering with the public comment system. The obvious suspect would be the Department of Veterans Affairs. Obviously, they received too many well formed comments, that had more logic than anyone in VA HQ had ever seen before, and provided more scientific and legal evidence against their proposed rule that they decided to cut the comment period off hours early, and to "lose" many of the comments that were posted, and to make it so difficult with system outages, breakdowns, and, of course, the dropping of names, that it made the entire process of tracking comments nearly impossible.

We have filed a complaint with the U.S. Attorney General's Office of the Inspector General [who handles Civil Rights violations] of these events and our suspicions. As a courtesy, we have also notified the head of USA.gov [Regulations.gov], and The U.S. Commission on Civil Rights, and of course, the Secretary of the DVA, Peake.

We'll also be notifying our media contacts as well.

Meanwhile, of the 31 respondents to our current poll on problems with commenting, who did make or try to make a comment online, 77% did have problems.

The Poll still has a few days to run, so if you have tried to post a comment with the Feds, and have not participated in our poll yet, please do while it is still running.

VNVets

”It is a stain on this nation's honor that the Department of Veterans Affairs has become a deadlier and more difficult adversary to the American veteran than any they have ever faced on a battlefield."-- VNVets

"The concept that Agent Orange, and its effects, stopped dead in its tracks at the shoreline is simply too illogical, and too ludicrous to accept. What does that say about the Bush Administration and his Department of Veterans Affairs?"--VNVets

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." --President Abraham Lincoln

"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious."--President George Washington

Copyright © 2005-2008: VNVets Blog; All Rights Reserved.

Tuesday, June 17, 2008

John Wells: Comment on Rule Change

Good friend John Wells, of down Louisiana way, the man who filed the Amicus Brief in the Haas case [thereby introducing the Australian Study to the case] has shared his comment to the proposed change in the definition of "service in Vietnam" by the DVA. This is a lengthy post as the comment is very detailed.

Here is his comment:

COMMENT BY JOHN B. WELLS
My name is John B, Wells and I am a retired Navy Commander as well as an attorney-at law. I write to comment upon the most recent Department of Veterans Affairs proposed regulations to implement 38 U.S.C. § 1116. I refer to the VA RIN 2900-AM74-Definition of Service in the Republic of Vietnam as announced in VA-2008-VBA-0014-0001.

I entered the Navy in February of 1972 and was commissioned an Ensign in June of 1973. In June of 1974 I completed the Main Propulsion Assistant course and was assigned to the USS Holder (DD-819) as Main Propulsion Assistant. Ships of that class served frequently on the gun line off the coast of Vietnam but in its territorial waters. The ship's distilling plant/evaporators (hereinafter distillers) were part of the equipment under my purview. In October of 1976 I transferred to the USS Coronado, (LPD 11) also as Main Propulsion Assistant. In the fall of 1977 I was reassigned as Chief Engineer after that Engineer was detached for cause. I guided the ship through a successful Operational Propulsion Plant Examination. Again, the ship's distillers were part of the equipment under my purview. Later I was asked to oversee the preparation of the ship's repair plan for the upcoming shipyard overhaul. While I was onboard, the ship deployed twice to the Mediterranean and once to the Carribean.

After a two year shore assignment, I was assigned to the Surface Warfare Officers School Department Head Course. That course included several months of engineering training as well as combat systems and fundamentals. I was assigned to the USS Badger (FF-1071) as Operations Officer. I was also in charge of the ship's shipyard overhaul. When the Badger's Chief Engineer was fired, I was assigned to that position. Again, the ship's distillers were part of the equipment under my purview. I guided the ship through a successful Light Off Examination and Operational Propulsion Plant Examination. In 1982, I was assigned to the USS Worden, (CG-18) as Chief Engineer. Again, the ship's distillers were part of the equipment under my purview. The ship made deployments to the Western Pacific, Indian Ocean and the North Arabian Sea.

In late 1984, I was reassigned to the staff of the Commander Naval Surface Reserve Force. My responsibilities included the operation and scheduling for nineteen ships of the Naval Reserve Force. In 1987, I was assigned to the pre-commissioning unit of Battleship Wisconsin (BB-64) as main Propulsion Assistant. I served as Acting Chief Engineer for a number of months until the Engineer reported. Again, the ship's distillers were part of the equipment under my purview. I was later reassigned as Executive Officer (second in command) of the USS Puget Sound (AD-38). Puget Sound's mission was the repair of other ships. The ship deployed to the North Atlantic and Indian Ocean-Persian Gulf while I was on board.

In 1989 I was reassigned as Commanding Officer, Naval Reserve Readiness Center Pittsburgh, PA. At this time I began attending law school during the evening. Part of my responsibilities was the training of over 1000 reservists. We developed many training courses including engineering course to include ship's distillers. I retired from the Navy, as a Commander on 1 August, 1994. I graduated from Duquense Law School with a J.D. approximately 6 weeks prior to my retirement.

I was qualified as a Surface Warfare Officer, Officer of the Deck (underway), Combat Information Center Watch Officer, Command Duty Officer, Tactical Action Officer, Navigator, and Engineering Officer of the Watch. I was also qualified for command at sea. I received a mechanical engineering subspecialty based on significant experience.

While in the Navy, my ships operated with units of the Royal Navy and the Royal Australian Navy. This included NATO exercises, RIMPAC exercises and other multi-national exercised operations and operations throughout the world.

I am familiar with the National Research Centre for Environmental Toxicology and the Queensland Health Services, EXAMINATION OF THE POTENTIAL EXPOSURE OF ROYAL AUSTRALIAN NAVY (RAN) PERSONNEL TO POLYCHLORINATED DIBENZODIOXINS AND POLYCHLORINATED DIBENZOFURANS VIA DRINKING WATER, Brisbane Queensland, Australia (2002). I have talked with the authors of that report via e-mail. My wife, who is a Louisiana notary and paralegal, and also an Australian native, went to Brisbane to interview the authors of the report. A copy of that report is attached as Appendix A to this comment. Additionally, I filed the amicus brief in Haas v. Nicholson. I believe that I am qualified to address in some detail, the DVA's position.

As a threshold matter, the vessels of both Australian and American origin should be referred to as "ships" and not "boats." Boats are nicknames for submarines or refer to craft carried on ships. I make this comment because it underscores the lack of nautical knowledge and experience of the authors of the DVA's position.

To answer one of the DVA's first objections to the Australian report, the study was peer-reviewed and published. The report was presented to the 21ST International Symposium on Halogenated Environmental Organic Pollutants and POPs in Gueongu Korea on 9-14 September 2001. It was them published in Volume 52 of Organohalogen Compounds (ISBN 0-9703315-7-6) which is published by Dr. Jae Ho Yang, Catholic University of Daegu, Korea. Please see http://espace.library.ug.edu.au/view/UQ:95837 (last visited June 13, 2008). More importantly,the study was prepared at the request of and for the Australian Department of Veterans Affairs. They accepted the results as indicated by their subsequent promulgation of the following Statement of Principles, which is a rough equivalent to the Code of Federal regulations:

Statement of Principles concerning Malignant Neoplasm of the Lung, No. 17 OF 2006 FOR THE PURPOSES OF THE VETERANS' ENTITLEMENT ACT OF 1986 AND THE MILITARY REHABILITATION AND COMPENSATION ACT OF 2004:
http://www.dva.gov.au/pensions/SOPs/b004rh malignant_neoplasm_lung.htm

Statement of Principles concerning Malignant Neoplasm of the Larynx, No. 1 OF 2006 FOR THE PURPOSES OF THE VETERANS' ENTITLEMENT ACT OF 1986 AND 1 I-IE MILITARY REHABILITATION AND COMPENSATION ACT OF 2004:
http://www.dva.gov.au/pensions/SOPs/bO13rh_malignant neoplasm_larynx.htm

The authors have informed me that based on the acceptance and incorporation of the report by the Australian government into their Statements of Principles they saw no reason for further peer review.

I noted no uncertainty regarding the amount of concentration of dioxins in the estuary waters noted in the Australian report (hereinafter RAN report). The study noted that ships in the near shore marine waters collected waters that were contaminated with the runoff from areas sprayed with Agent Orange. RAN Report at 10. The authors later reported to this office that estuary containing the dioxins extended more than three nautical miles form shore. (See Appendix A). This means that the contamination would have extended well past the gun line. The distilling plants aboard the ship, which converted the salt water into potable drinking water, according to the study, actually enhanced the effect of the Agent Orange. RAN Report at 42. The study found that there was an elevation in cancer in veterans of the Royal Australian Navy which was higher than that of the Australian Army and Royal Australian Air Force. RAN Report at 13. The report further found that oral ingestion can cause multi-site cancer in the human body.

RAN Report at 58. The RAN report at page 35 noted significant concentrations at Vung Tau. Anecdotal evidence reports Agent Orange in the waters of the rivers which then empty out into harbors and eventfully the estuarine waters. Notably, in the Clean Water Act Congress recognized that pollutants discharged from shore will contaminate the navigable waters, waters of the contiguous zone, and the oceans. 33 U.S.C. § 1251(a)(6). The DVA's comment that the exposure levels were not comparable to the amount of exposure land soldiers received is incorrect. As discussed in the RAN report the distilling process enhanced the effect of the dioxin. Additionally the dioxin was ingested orally through drinking waters, food showers etc. The DVA presents no evidence to show that the concentration of dioxins in the water tanks and piping of the ship was less than found on land. On land, the dioxin, once sprayed, would become embedded in the soil. Since the water systems of the ships would have been thoroughly contaminated, the dioxin would have adhered to piping and continued to contaminated in an ever increasing amount. The authors confirmed this in their discussions with my office. (See Appendix A). The cumulative effect of the contamination would have resulted in a very high concentration. It would have taken months and perhaps years to completely flush the system once the ship moved away from contaminated waters. The Australian study confirmed the enhancing effects of the shipboard distilling plants. RAN Report at 42. In other words, the effect was even more pronounced than if the veteran had merely ingested Agent Orange by breathing it or by drinking water from a contaminated stream. The authors of the report confirm this position. (See Appendix A).

The DVA report contain the curious comment that one had to assume that the sailors drank only the contaminated water and only for an extended period of time. That is a safe assumption. All Navy ships, manufacture potable drinking water from sea water. This water is replenished almost daily http://www.bluewaternavy.org/distillation/Water%20treatment.pdf at 2-3. (last visited June 7, 2007). These ships did not have the capacity to carry potable water throughout the voyage without replenishment via their distillers. The distillers all work on similar principles to produce water (feed water) for the boilers and potable water for the ship's crew. See, e.g. Main Propulsion Plant DD-445 and 692 Classes and Converted Types, Operation Manual http://www.hnsa.org/doc/destroyer/steamseclO.htm (last visited April 4, 2006). Water is injected from the sea and is passed through the distilling condenser and air ejector condenser where it acts as a coolant for the condensers. It is then sent through the vapor feed heater into the first effect chamber and into the second effect chamber where it is changed to water vapor. Vapor then is passed through a drain regulator into a flash chamber and passes through baffles and separators into the distilling condenser where it is condensed into water and pumped to the ship's water distribution system. Sea water not vaporized is pumped over the side by the brine pump. Id. This is the same process discussed in the RAN report. It was used by American, British and Australian ships. In fact many Royal Australian Navy ships were retired United States Navy ships or ships of the same class as the American Navy. Those that were not of American design were constructed by the British. They all used the same system. This system was used well into the 1990's. More recently a new system, reverse osmosis, is being adopted, but that did not see service in any ship off the coast of Vietnam during the Vietnam War.

It is obvious that the author of the DVA comment and the "scientists and experts" who supported the positions taken know little about the concepts of nautical engineering or even basic thermodynamics. They obviously know little about shipboard life. Potable water was manufactured continuously along with "feed" water for the ship's boilers. It was a constant headache and as a Chief Engineer there were many times that I was given round the clock hourly briefings on the status of water. This was especially true in southern latitudes such as Vietnam since the higher ambient sea water temperatures reduced the efficiency of the distilling process. Water was not only a morale factor, it was a requirement for survival. Nor was there any means to transport large quantities of water outside of the reserve potable water tanks.

The DVA's interpretation of Congressional intent is also irrational. The interpretation does not comport with national or international law. U.S. Navy ships, like their Australian counterparts, steamed within the territorial waters of Vietnam. Territorial waters were historically defined as

1, the water area comprising both inland waters (rivers, lakes and true bays, etc.) and

2, the waters extending seaward three nautical miles from the coast line, i.e., the line of ordinary low water, (ofttime called the 'territorial sea'). Seaward of that three-mile territorial sea lie the high seas.

C. A. B. v. Island Airlines, Inc. 235 F.Supp. 990, 1007 (D.C.Hawaii 1964). A wider area, the contiguous zone, reaches out to twelve miles from the coast. United States v. Louisiana 394 U.S. 11, 23 n. 26. (1969). Vietnam claimed a 12 mile territorial sea limit, which defines its sovereignty. http://www.cia.gov/cia/publications/factbook/fields/2106.html (Last visited 3 April 2006). That is consistent with the limitations of the United Nations Convention on the law of the Sea Article 3. Three nautical miles is within the outermost range of the 5" 38 gun mounts of Destroyer type ships used in the Vietnam war. Twelve nautical miles (24,000 yards) is beyond the maximum range of the most commonly used shipboard batteries, the 5"38 or the 5"54 naval gun. http://www.fas.org/man/dod-101/sys/ship/weaps/guns.htm last visited June 13, 2008.

Accordingly, ships had to have been within the 12 mile limit, or the territorial waters, whenever conducting gunfire support.

The enabling statute, 38 U.S.C. § 1116(a)(1)(A) recognizes a presumption of service connection when the veteran manifests a disease, including lung cancer, when the person was "a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975." The threshold factors are the existence of a prescribed disease and service in Vietnam.

In Louisiana v. Mississippi, 202 U.S. 1, 52 (1906), the Supreme Court held that the Mississippi Sound, and by extension the waters surrounding all harbors as inland waters, were under the category of "bays wholly within [the Nation's] territory not exceeding two marine leagues in width at the mouth." Inland, or internal waters are subject to the complete sovereignty of the nation, as much as if they were a part of its land territory. United States v. Louisiana, supra. Thus the presumption should apply to any harbor as well as inland waters. The territorial waters to include the contiguous zone are also under the control of the sovereign nation, although innocent passage may not be denied. Id. Subject to the right of innocent passage, the coastal state, in this case Vietnam, has the same sovereignty over its territorial sea as it has with respect to its land territory. See, 1958 Territorial Sea Convention Article 1-2; Law of the Seas Convention, Article 2.

Thus any time a Navy ship was firing its guns ashore, it would have had to have been within the territorial waters of Vietnam. When at anchor in a harbor, it was within the inland waters of Vietnam. At all relevant times, the ship was within the sovereignty of Vietnam and therefore its crew "served in the Republic of Vietnam." The distance to shore directly corresponds to the maximum range of the support of forces ashore. Consequently, most naval units often operated close to shore. Gunfire missions were often shot from four or five thousand yards or less, well within the three nautical mile limit. The closer a ship was to shore, the higher the possibility that they steamed through waters contaminated with Agent Orange. In the case of the harbor anchorages, the ships were not only within the sovereign territory of Vietnam, they were within the inland waters. Consequently, under both national and international law, most ships served in the Republic of Vietnam.

The DVA position is irrational, arbitrary and capricious, unsupported by substantial evidence and in contravention of the enabling legislation. Accordingly, the proposed regulations should be rescinded and replaced with a regulation extending the 38 U.S.C. § 116 presumption to servicemembers on ships that served within the 12 mile territorial limit of Vietnam, or certainly, that anchored or operated within any harbor within the territorial limits of Vietnam.

I am available to answer any questions concerning this matter.

Respectfully Subiiitted,
John B. Wells, LA Bar

APPENDIX A

REPORT ON MEETING BY JANICE WELLS WITH PROFESSOR MICHAEL
MOORE AND RESEARCH FELLOW MS. CAROLINE GAUS IN BRISBANE
AUSTRALIA ON JULY 3, 2006.

I met with Professor Michael Moore at Queensland Health Scientific Services (QHSS) in July, 2006 to go through the report of the study of the Examination of the Potential Exposure of Royal Australian Navy (RAN) Personnel to Polychlorinated Dibenzodioxins and Polychlorinated Dibenzofurans via Drinking Water that was issued by QHSS in 2002.

Professor Moore explained that Dr. Keith Horsley, Senior Medical Advisor for The Australian Government, Department of Veteran Affairs (DVA), approached The National Research Centre for Environmental Toxicology (ENTOX) and the Queensland Health Scientific Services (QHSS) and requested that they undertake an Examination of the Potential Exposure of Royal Australian Navy (RAN) Personnel to Polychlorinated Dibenzodioxins and Polychlorinated Dibenzofurans via Drinking Water. The study was requested by the DAV, following the discovery that statistical evidence showed that the morbidity and cancer levels were far higher in service members of the Royal Australian Navy than those in the Royal Australian Army who had served in Vietnam. Professor Moore explained that this was unexpected by both the Department of Veteran Affairs and the Royal Australian Navy because it was thought that Army service members would be at greater risk because of the type and length of exposure to dioxins. Naval service members deployment was for 6 weeks in the Mekong delta and service members rarely set foot on land while Army service members were exposed during their deployment for an extended period of time in the country of Vietnam. The study was requested to discover the reason. The research took about three years and the report was issued in 2002.

I asked Professor Moore if he had any knowledge of any similar studies in the United States or research in a similar vein and he said he did not. He said he was surprised at that because United States Naval personnel consumed distilled drinking water too and were therefore exposed to the same dioxins. The same mobility and cancer statistical increases would have been apparent in records of the United States Naval service members as compared to those in the United States Army service members. I asked him if he thought that the statistical increase would be higher given that USN personnel were deployed for longer period's of time than the 6 weeks RAN service members were consuming the distilled drinking water. He advised that it would, but the dioxin exposure was so high in the estimated distilled water consumption in a short period of time, that an increase in time of exposure would make an already extremely high exposure that much worse. Professor Moore commented that the exposure by RAN service members for 14 days was far above World Health Organization acceptable levels, and that 6 months exposure would be off the scale. He advised that Caroline Gaus, who was personally involved in the research, would be available to meet with me, and would be able to take the time to explain dioxin levels and the process of distilling the water on board ship and in the laboratory.

Professor Moore went on to explain while undertaking the research it was found that the only difference between Naval and Army service members was the water they consumed and how it was processed. He said that it was originally thought that because the water was distilled it was pure. Additionally it was thought that because the dioxins were not soluble that they would not be present in the water. However it was found that during distillation of the sediment contaminated water from the estuary, because the dioxins were not soluble, the dioxins would attach to the sediment. Therefore the more particles in the intake water the higher the level of dioxins in the resulting distilled water. It was acceptable practice for the uptake of water to be taken up as close to the shore as possible in the estuary thus reducing the amount of salt, the resulting distilled water would therefore contain more dioxin. Professor Moore noted that the purest water following distillation was used for the boilers and that which contained more sediment (and thus more dioxins), after distillation, would be used for drinking.

Professor Moore also noted that the further out from shore from the mouth of the estuary the less sediment in the water. But as the estuary and the sediment it contained extended more than three nautical miles from shore, it would mean that distillation of water from anywhere in the Mekong delta would result in heavy dioxin levels in the final drinking water. He also advised that

Caroline Gaus may have more information on the spread of the sediment pattern from the river, the Mekong delta and the estuary.

I questioned Professor Moore as to what other particles the dioxins would become attached to. Professor Moore communicated that the dioxins would attach to the distilling plant tubing, but would attach also to any food or drinks that used distilled water in its preparation. He particularly mentioned coffee and tea and any food preparation that required the washing of food and cooking of food in water. He said that dioxins would attach to any sediment whether it be soil sediment or food. He suggested that Caroline Gaus would be able to explain the laboratory process of distillation and how the dioxins were deposited on distillation plant tubing and storage tanks which would occur during the distillation process. He went on further to state that the study only took into account the RAN process of distillation on board ship. I informed Professor Moore that the class of ship we were investigating was the same class of ship that was used by the RAN and USN.

When asked about the link of the ingestion of dioxin to cancer Professor Moore commented that as the dioxins attached to fatty tissue in the body they would remain in the body for a long time. He said that cancer caused by the presence of dioxins would not present itself in just a few years but he did think that the presence of dioxins would result in cancer in 15 - 20 years. When asked if he had the mobility statistics for the diagnosis of cancer or death in service member personnel he advised that he did not have them but that the DVA did.

I also met with Ms. Caroline Gaus. Ms. Gaus is a Research Fellow for the National Research Centre for Environmental Toxicology and had been involved in the research and the laboratory distillation tests on this study. Ms. Gaus confirmed the information that Professor Moore had previously given me. As background Ms. Gaus informed me that inclusion of the dioxins was a malfunction or rather an end result of the manufacturing process for the defoliant but it was not recognized as a problem because the dioxins were not soluble it was thought they would not be in the water. But because by its nature the dioxin attaches to the sediment or other properties - it is a problem. Also Ms. Gaus said that when the defoliant was manufactured it was never anticipated that so much would be used over such large areas for such a long time. Ms. Gaus said that it was not recognized that there was a problem until it was realized that the RAN mobility and cancer statistics were too high and the DVA had to look for a reason.

I asked Ms. Gaus about the sediment in the estuary and how far it spread out to sea. Ms. Gaus confirmed that the sediment extended at least three nautical miles out from shore. She advise that this pattern would be easy to confirm by looking at the satellite pictures for the Mekong delta for the same period of the year as the test period. Ms. Gaus commented that the sediment pattern was easy to see from these pictures and it would be easy to measure the distance the sediment spreads out to sea. Ms. Gaus indicated that Professor Arnold Schecter from the University of Texas, School of Public Health had done a study on humans and had also been to the Mekong delta and estuary and had taken water and sediment samples. Ms Gaus thought that Professor Schecter may have statistics on the estuary in addition to human mobility statistics.

I questioned Ms. Gaus about which other particles, besides sediment the dioxins would attach to. She explained that the dioxins would attach to the tubing in the distilling plant as well as the storage tanks. But that it was impossible to say how much or for how long it would be there before scale residue would get into future distilled water. She commented that the level of the dioxins would be so high in the processed water that the dioxins that would be deposited on the tubing would only add to an already high level when released from the tubing as scale residue. Ms. Gaus noted that in the laboratory, dioxins did attach to the glass tubing during the distillation process and therefore they did shake the glass components for 7 - 14 days to remove as much of the toxins into the water as possible - but as she said previously - the level of contamination was so high that the extra (even if very little) would just make the level higher. Ms. Gaus noted that tubing used in distillation on a shipboard plant is copper and dioxins would adhere more readily to copper than it would to glass creating a scale like residue that would eventually passed into future distilled water. Again, how long and in what quantity was not possible to determine in the laboratory tests. Ms. Gaus commented that the dioxins would accumulate in tanks as scale like everything else but almost impossible to say how much. But Ms. Gaus reasoned that again the levels were so high during the initial exposure by using the distilled water for drinking and cooking that any future ingestion would have just increased the total level of exposure. Ms. Gaus went further to suggest that the material used for the distillation process would make a difference to the level of dioxins in the final output. However whether it was copper as on board ship or glass as in the laboratory or if the purest form of silver were used for the tubing and the tanks it would still produce distilled water that contained high levels of dioxins. Even the lowest level would still be far too high for consumption.

Ms. Gaus noted that "a key goal of the study was to attempt an evaluation of exposure of RAN personnel aboard ship on duty in Vietnam by consumption of contaminated water as well as from other potential pathways"' Ms. Gaus advised that in the distillation process their recent information suggested that about 5 - 10% of the uptake water was distilled and the rest was discharged into the estuary. That previously it was thought that 50% of the water was distilled that produced the enrichment factor of 2 (i.e. 0.08 - 1.4ng/L) that when 5 - 10% of the water was distilled that the factor increased to approximately 10 - 20. When 50% - 95% of previous distilled water, full of contaminated, was discharged back into the estuary, it is predictable that the uptake water at a later time could have a higher level of contaminates because it had previous been distilled and discharged to mix with the estuary water. So it is possible that distillation again would produce a higher level of dioxins than the original source uptake water from the estuary.

Ms. Gaus noted that it was determined that sailors consumed an average of 5 liters of distilled water per day. That this direct consumption would lead to a daily body burden of about 0.4 - 7 ng/day. The water was also used to prepare food and as a result of the hydophobic character of the dioxins the TCDD would also accumulate in the food. Hence they estimated that the total exposure due to water contamination food was similar to that of the direct consumption of drinking water - another 0 .04 - 7 ng/day. This meant a total of 0.08 - 14 ng/day.

Ms. Gaus noted that it was important to estimate the overall exposure period. She also noted that "According to the reports from RAN personnel the rule on board ship was to produce drinking water primarily during the periods when the ship was in the turbid estuarine water since the water was less pure and could have caused potential damage to the engines if used in boilers. While in the pristine water offshore the distillation units produced water primarily for the ships engine. Hence the drinking water that was produced during the periods in contaminated water lasted for a significant portion of the return trip."2 Therefore the ingestion of dioxin contaminated water would continue after the RAN service members left the waters of Vietnam. Ms. Gaus commented that the report estimated that in a 14 day period the total body burden of dioxin through direct consumption of water that originated from distilling in Vietnamese waters are estimated to be between about 10ng to 190 ng. Ms. Gaus advised that as it noted in the report that the "US-EPA have concluded that the dioxin background contamination which is in the range of .05 - 2 pg per kg bw per day at the present may pose a significant cancer risk between 10-2 to 10-3."3 and that the US-EPA recommended guidelines were "2 orders of magnitude lower than the values set by the WHO/ICPS and various European committees."4 Ms. Gaus commented that RAN members may have received exposure which is one to two orders of magnitude above the acceptable intake values. Ms. Gaus noted that dioxins attach to fatty tissue in the body after ingestion and would remain present in the body for a long time.

I questioned Ms. Gaus about TCDD and OCDD and she informed me that TCDD and OCDD is produced during the distillation process and TCDD attaches to the sediment and because of low molecular weight and low lipoph stays in the drinking water. Ms. Gaus noted that ODCC was produced also but because of high molecular weight and high lipoph it stays in source water. Therefore when only 10 - 30% of the source water is distilled the OCDD remains in the source water and it is discharged as bilge water into the estuary again.

Both Professor Michael Moore and Research Fellow Ms. Caroline Gaus said that they would be available for telephonic interview at a later date should it be necessary to discuss the study of the Examination of the Potential Exposure of Royal Australian Navy (RAN) Personnel to Polychlorinated Dibenzodioxins and Polychlorinated Dibenzofurans via Drinking Water that was issued by QHSS in 2002.

Both Ms. Gaus and Dr. Moore were surprised, that the United States Department of Veterans Affairs had not adopted their findings or at least contacted them concerning those findings.

Respectfully Submitted,
Janice C. Wells,
Civil Law Notary

Thank you John, and Janice for the excellent work in putting forth our argument.

VNVets

”It is a stain on this nation's honor that the Department of Veterans Affairs has become a deadlier and more difficult adversary to the American veteran than any they have ever faced on a battlefield."-- VNVets

"The concept that Agent Orange, and its effects, stopped dead in its tracks at the shoreline is simply too illogical, and too ludicrous to accept. What does that say about the Bush Administration and his Department of Veterans Affairs?"--VNVets

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." --President Abraham Lincoln

"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious."--President George Washington

Copyright © 2005-2008: VNVets Blog; All Rights Reserved.

Sunday, June 15, 2008

Is the DVA Censoring Comments?


Making Public Comments is generally tough enough without something going wrong in the Internet Process.

Suddenly, comments made on one day take four to five days to appear, if they appear at all, while other comments made the same day appear almost immediately.

Suddenly, names are being removed from the headers on the list, making it next to impossible to find a specific comment.

Suddenly, the sortable list of comments when done chronologically does not place the list in chronological order.

Frequently, the buttons to be selected when publishing a comment simply do not work.

The Public Comments website is run by USA.gov, which is the main portal to the United States government online, and USA.gov is run by the General Services Administration.

Normally we would say it is highly unlikely that the DVA would be tinkering with the Public Comment board, but these are very strange times, and we would put nothing out of reach of the DVA and the current Administration. We've seen their tactics, and their lies.

We do not think this is the case, and pray that it is not. However, we do not recall hearing complaints about posting public comments, or not seeing the names of the commenters on the list when commenting early last winter on the M21-1 Manual Recission.

That could have shown the DVA what to expect this time when trying to change the definition of "service in Vietnam" for the Agent Orange Act of 1991. Hence, in their fear of the onslaught of negative comments, many of which contain positive evidence to show their interpretation is wrong, they may very well be tinkering with the comment board.

It is simply too much of a coincidence that such problems are occurring on this particular proposed change.

Stay tuned on this one, boys and girls. We may wind up demanding an extension to the period of public comment because of all the difficulties encountered.

Please respond to our new poll about your experiences with the public comment period, based on the problems listed above. Thank you!
VNVets

”It is a stain on this nation's honor that the Department of Veterans Affairs has become a deadlier and more difficult adversary to the American veteran than any they have ever faced on a battlefield."-- VNVets

"The concept that Agent Orange, and its effects, stopped dead in its tracks at the shoreline is simply too illogical, and too ludicrous to accept. What does that say about the Bush Administration and his Department of Veterans Affairs?"--VNVets

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." --President Abraham Lincoln

"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious."--President George Washington

Copyright © 2005-2008: VNVets Blog; All Rights Reserved.

Wednesday, June 11, 2008

VA=No Science and Less Credibility

The Department of Veterans Affairs sends out press releases by the handful all touting the great and wonderful things they do on a daily basis. The facts, and the science say otherwise.

As a Cabinet Level Department, they lie through their teeth. For all we know they lie to their boss, President Bush. Most evident is the lies they tell in their press releases.

How can we say that? Ask any veteran. Most will tell you their own horror stories of dealing with the VA, and a half dozen more of buddies who have been shafted by the agency created to care for the nation's veterans.

Ask a Blue Water Navy veteran.

We say,

"It is a stain on this nation's honor that the Department of Veterans Affairs has become a deadlier and more difficult adversary to the American veteran than any they have ever faced on a battlefield." --VNVets
This is the relationship that the past two presidents have fostered through the Department of Veterans Affairs with the Veterans of this nation over the past 15 years. The President will not address the matter unless it hits the Washington Post, or the New York Times, and the credibility of the NY Times has suffered over the past five years of Bush-bashing.

Senator Akaka does practically nothing without the approval of the President, and he's a Democrat! Congressman Filner talks a good game about Blue Water Navy Veterans and their plight, but we have yet to see action from him after several years of maintaining contact of good relations. Lip service. Blue Water Navy has no friends in politics. None. Zero. Zip. Zilch.

While other countries are apologizing to their Vietnam Veterans for their treatment during and since the war, and for refusing to acknowledge the effects of Agent Orange on those Veterans, the United States is fighting tooth and nail in Federal Court to keep almost half of the remaining Vietnam Veterans from claiming Agent Orange benefits by claiming they "did not serve in Vietnam". They cling to a black and white line drawn literally in the sand of the beachs of Vietnam that claims if you didn't set foot inside the line, you did not serve in Vietnam, and are not eligible for Presumptive exposure benefits under the Agent Orange Act of 1991.

But they have not a single shred of scientific evidence to back up this assertion that unless you set foot on land, you could not be exposed to Agent Orange. That's right, no scientific evidence to prove their assertion. None, Zero Zip. Zilch.

We say,

"The concept that Agent Orange, and its effects, stopped dead in its tracks at the shoreline is simply too illogical, and too ludicrous to accept. What does that say about the Bush Administration and his Department of Veterans Affairs?" --VNVets
How can we say this?

Because there is ample proof to the contrary. The so called "Australian Study" which proved the concentration of dioxins when seawater containing dioxin laced runoff from land was processed through ship's evaporators when making fresh water, is a prime example, and that study was done because the Australian mortality studies showed a higher mortality rate among naval veterans of Vietnam than those who served on the ground! As far as the Australian and New Zealand governments are concerned it doesn't need to go any farther than that. Science has proven to their satisfaction that their sailors were poisoned off Vietnam, regardless of whether they set foot on the ground or not!

And Mr. Hughes, the attorney for the Department of Veterans Affairs during oral arguments on the Haas case last November dismissed the Australian Study as being of "questionable science"! Hello, Bubba! Where's YOUR science? Who died and made you judge of what is science and what is not, and as a spokesman for the DVA IN FEDERAL COURT, you have nothing to back up that statement since the DVA won't allow the Institute of Medicine to investigate the Australian Study! So Mr. Hughes at best made an assertion without any justification, or simply flat out lied to the panel.

The closest the VA comes to scientific evidence against a Blue Water exposure claim is in the origimal CDC studies referenced in our post,
The CDC, The DVA, NHL, and Hodgkins Disease, where we cited a section of the CDC studies on which the Agent Orange VA policy is based. The following quotation is the ONLY [semi]scientific evidence on which the VA bases its discrimitory practice of excluding Blue Water Navy Veterans from agent Orange presumption:
"...In addition, compared with other Vietnam Veterans, the risk for Hodgkins Disease did not significantly differ between those in the Navy [most of whom were stationed on ocean-going vessels with little potential for exposure to Agent Orange] and men in other service branches...."

Source:
Selected Cancers Study at the CDC website.

Also see
Agent Orange Brief - August 2002.
"...Navy [most of whom were stationed on ocean-going vessels with little potential for exposure to Agent Orange...". This is nothing more than an assertion. In the face of the Australian Study alone it is repudiatied.

Mr. Hughes was well aware of this when he lied to the court. If he wasn't then he sucks as an attorney.

We are shocked that the court ignored this blatant fabrication and allowed the VA to continue its dishonest charade of pretend science that simply does not exist.

We pray that the court will see through this conspiracy against Wartime Veterans of the United States, and grant an en banc review of the May decision in Haas vs. Peake. And in the process, we pray that Mr. Hughes is brought before the court to answer these charges in full, and defend himself from being disbarred for unethical practice of law.

The Department of Veterans Affairs has no science behind its foot on the ground ruling, and no credibility with anyone outside of the administration -- that is, anyone who counts.

As we said before, the gloves are off now.

This post is being entered as a comment on the proposed rule change.

Dare they allow it?

VNVets

”It is a stain on this nation's honor that the Department of Veterans Affairs has become a deadlier and more difficult adversary to the American veteran than any they have ever faced on a battlefield."-- VNVets

"The concept that Agent Orange, and its effects, stopped dead in its tracks at the shoreline is simply too illogical, and too ludicrous to accept. What does that say about the Bush Administration and his Department of Veterans Affairs?"--VNVets

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." --President Abraham Lincoln

"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious."--President George Washington

Copyright © 2005-2008: VNVets Blog; All Rights Reserved.

Monday, June 09, 2008

Respond to our poll on new look VNVets!!

First and foremost a huge THANK YOU to all of our loyal readers out there. We just celebrated our third anniversary of VNVets Blog on Saturday.

We hope you like the new look, and hope it is easier to navigate. We have added a poll, to help make things more interesting, and will try to update with new polls weekly, or bi-weekly. We must apologize, however, for instituting advertising on the blog. While waiting for a Haas turnaround, we need some help with the cost of gas. So, when and if the ads appear, please feel free to patronize them. Most of it should be relevant.

Keep checking in for more posts, and fresh news on the Blue Water Navy Vietnam issue. We are constantly researching the science behind the dioxin debacle, and ways to make our case. We are being heard. We are read by several VA Regional Offices, The VA headquarters, the Senate, the House, and the Federal Courts, along with some supposedly intimidating govenment agencies like Homeland Security, the IRS, and the Army's Cyber Command.

That makes us happy. It says that we are on the right track, and doing and saying the right things -- otherwise they would ignore us.

So keep up the great work all you tipsters, and be assured we are indeed getting close to making a contact in the national media who will publicize our plight.

About the poll: we threw you a bit of a curve ball by adding Bush's name. We sent our medals to Akaka, Filner, and to President Bush, along with personalized letters to each. The Envelopes were marked "Operation Medal Return". The original post,
"Time to Mail", did not include the whitehouse. If you have the medals, go ahead and send to President Bush.

Here is the address:
President George W. Bush
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500
Finally, we suggest to you that it is time to close ranks:
  • Get your buddies on board this fight, and your friends and relatives. Get as many as possible to join the BWNVVA.
  • Have your VNVet buddies join us in "Operation Medal Return". Non-Blue Water Sailors should feel free to support our efforts by reurning their medals as well.
  • Have your friends and family remain up to date by subscribing to VNVets Blog.
  • Keep pushing the Agent Orange Fair Compensation Act at your Senators and Representatives.
  • Finally, keep the faith! Justice will prevail.
Again, thank you all for your loyal readership, and thank you for all the tips, insights, and corrections. We have not always been right, but we have been quick to correct when we are wrong. We appreciate you keeping us on our toes.

In short, you've been great. Thank you, and keep up the great work we are about.

Now, let's see what government offices we can stir up in the next three years...

VNVets

"The concept that Agent Orange, and its effects, stopped dead in its tracks at the shoreline is simply too illogical, and too ludicrous to accept. What does that say about the Bush Administration and his Department of Veterans Affairs?" --VNVets

”It is a stain on this nation's honor that the Department of Veterans Affairs has become a deadlier and more difficult adversary to the American veteran than any they have ever faced on a battlefield." -- VNVets

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." -- President Abraham Lincoln

"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious." --President George Washington

Copyright © 2005-2008: VNVets Blog; All Rights Reserved.