Sunday, November 29, 2009

A Remarkable Letter to the DVA

We would like to make you aware of a recent exchange of letters between a VASVW Member and Bradley G. Mayes, Director of Compensation And Pension Services, Department of Veterans Affairs.

Joe Covington is a Blue Water Navy Veteran and member of the Veterans Association of Sailors of the Vietnam War.

You can read Mr. Mayes letter [and should do so] by going to Joe's blog, A Citizen's Reflection, and check the links for his letter near the top of the right sidebar.

Meanwhile, here is Joe's remarkable response to Mr. Mayes.

Dear Mr. Mayes,

Thank you for the quick response, from your office staff, in reference to my concerns about the decision of the Department of Veterans’ Affairs not to provide certain earned and promised benefits to the Blue Water Naval (BWN) Veterans of the Vietnam War. In your letter, you stated that the DVA’s decision was based on “factual circumstances” of the use of “tactical herbicides” during the Vietnam War. You also spoke of this decision as not being a sign of disrespect directed at the Blue Water Naval Veterans. But it is my opinion, as well as many others, that the DVA’s failure to act appropriately and honestly to consider all of the “factual circumstances” that was part of the War, is a sign of disrespect, dishonesty and Yes, it is being directed at us Naval Veterans who volunteered our services to our country, we had a choice, as we were not drafted.

The statements contained in your letter indicates one of two things to me, either you are not really familiar with the actual facts of the operations during the war, or you are dishonestly attempting to portray the facts in a skewed manner.

Let me demonstrate what I mean, in your letter you said that there were no herbicides used over open waters, yet numerous records have been found that prove that it was a common practice for the “Ranch Hand” fixed-wing aircraft landing at Da Nang airbase to jettison their remaining chemicals over open water, some were jettisoning several thousand gallons at a time, due to having to make emergency landings. Flight records also show that these fixed wing aircraft used a flight path over the open water in its approach to and departure from Da Nang airbase; recovered maintenance records indicates that the release valves on most these aircraft were leaking these “tactical herbicides”, therefore being disbursed over open water. What all this means is that it appears that the fairness of your assessment does not consider all of the “factual circumstances” surrounding “tactical herbicides” and open water.

In your letter you also indicated that the only run off into the South China Sea might have occurred in the Mekong River Delta Area and you also say that was a “unique and limited” environment. But sir, records that are in the herbs tapes indicate that there was heavy spraying of “tactical herbicides” in the Quang Tri, Ashau Valley areas from the eastern border with Laos, all the way to the coast as well as south of Da Nang., as well as most areas in South Vietnam. All of the rivers and inland waterways of South Vietnam emptied into the South China Sea. That means that the runoff from this area was directly deposited into the areas, as you admitted, our ships were operating within. Also, keep in mind that the herb tapes did not record the dispensing of “tactical herbicides” by hand, boat or helicopter which other records unmistakably indicates that these methods of dispensing of “tactical herbicides” were largely used in the coastal and inland waterway areas. So once again it appears that the fairness of your assessment does not consider all of the “factual circumstances” surrounding the use of “tactical herbicides” and its runoff into all of the areas that our ships were operating.

I also wanted to remind you that the Dixie Station operating area was actually within the runoff area of the Mekong River and other inland waterway of Southern South Vietnam. So that would put the BWN that was operating in the area, by your admission, within the contaminated areas of the South China Sea. So once again the fairness of your assessment does not consider all of the “factual circumstances” surrounding the use of “tactical herbicides”

You also stated in your letter that the vast majority of BWN Veterans were stationed on aircraft carriers that were over 100 miles off shore. Yet records have consistently shown that these ships did not stay that distance away from the coast. As a matter of fact, most everyone knows that when these ships were conducting flight ops they had to steam into the wind. Metrological records, from the time period in question and location, indicated that the prevailing winds were from the North West. Therefore these ships were always steaming toward the coast while conducting flight ops. Now common sense should tell anyone that conducting twelve hours of flight ops, with at least six or more of those hours in the wind, launching and recovering aircraft while steaming at 25+ knots, would clearly put these ships in close proximity to the coast. I specifically remember there were times that we were within sight of the coast and we watched the CRUDES gunships fire on land based positions, they were normally within thousand yards of the coast when firing, which was an amazing light show at night. So, once again, it appears that the fairness of your assumptions do not consider all of the “factual circumstances” of the operations of the ships off the coast of South Vietnam.

You said that your “factual circumstances” do not support the general conclusion that BWN Veterans were exposed to “tactical herbicides” in the same manner as Veterans who served on the ground and on the inland waterways of Vietnam. You are right, but again that is not the BWN’s contention, it is the BWN’s contention that there is more than one way to be exposed to those “tactical herbicides” and it is the contention of the BWN Veterans that it appears the fairness of your assumptions do not consider all of the “factual circumstances” or methods of that exposure to the “tactical herbicides” that were used throughout South Vietnam.

So when I look at the manner in which the “factual circumstances” are used or rather misused by the DVA to exclude these Veterans from the benefits that were earned and provided before 2002, I do believe that truly does show a high degree of disrespect directed toward these BWN Veterans. Also, when you say that we only “supported the war effort” or refer to us as only “Vietnam Era Veterans”, I and many others do consider those actions and statements, when used by those at the DVA, to be very insulting and disrespectful toward all of us who volunteered our services to our country, not to mention the denigrating affect on the BWN that didn’t come home, these Naval Veterans of the Vietnam War were in a war, they were not just supporting one and the Naval Veterans are war veterans not “era” veterans.

In your letter you went on to say that the IOM’s statements were “speculative and academic.” Let me remind you that when the IOM was contracted by the DVA under the direction of Congress, the purpose of that contract was create a non-biased, non-governmental controlled method to review all the scientific and medical evidence currently available that pertains to the effects of the herbicides and the Veterans of the Vietnam War, which by the way, did include the BWN at that time.

Purpose.--The purpose of this section is to provide for the National Academy of Sciences, an independent nonprofit scientific organization with appropriate expertise which is not part of the Federal Government, to review and evaluate the available scientific evidence regarding associations between diseases and exposure to dioxin and other chemical compounds in herbicides.

What the above means to most people is that the IOM is to determine if there is an association that exists between “tactical herbicides” and diseases within the population of Vietnam War Veterans, thus the finding of an association between “tactical herbicides” usage and the diseases it causes within the population of BWN is well within that stated purpose.

So therefore, based on that highly educated and comprehensive review of all of the materials available, they reported their findings and opinions to the Secretary of the DVA in the form of recommendations, in this instance it is their recommendation that due to all of the scientific and medical evidence available, there is an established link or association to the use of “tactical herbicides” and the BWN’s illnesses. However, because those recommendations appear to be contrary to the DVA’s non-scientific and non-medically based politically motivated decision that contends that there is no link or association between the BWN and use of “tactical herbicides” then the IOM’s recommendation must be “speculative and academic.”

Sir, I submit that their findings are not outside the bounds of their purview, it is what they were required to do, just because their assessment does not portray the evidence in the manner that the DVA wanted it to, it is your conclusion that it means nothing and therefore they overstepped their bounds. You see, that is exactly what I am saying. If the DVA doesn’t like the result of something, they just ignore it or say it is “speculative or academic”, thus lending more creditably to the belief that the DVA’s actions do express a disrespectful attitude toward the Vietnam War BWN Veterans.

You don’t suppose that the decision to exclude the BWN from this coverage, which was based only on an opinion that was developed from a speculative assessment of the intent of Congress by a DVA employed Attorney, would be any different do you? If the DVA is using a legal opinion, as publicly stated and sworn to in a court of law, from your employed attorney to base the removal of these Vietnam War Veterans from coverage, then why do you state in your letter that the “this decision was based on to the factual circumstances of tactical herbicides use in Vietnam?” You see, speaking out of both sides of your mouth is the very reason that many believe, and rightly so, that this decision was nothing more than a politically motivated pronouncement that cannot be backed up by science or any other honestly presented evidence.

As another example, let me ask this, can you or anyone there tell me why NHL is linked to exposure to “tactical herbicides” for “in-country” forces, yet it is not linked to exposure to “tactical herbicides” for the BWN. Do not tell me that its origin in the BWN could not be determined; as its link was found during the same CDC study that linked NHL in “in-country” forces to the use of “tactical herbicides.” The only difference being is it was at a higher rate of occurrence in BWN than it was for the “in-country” forces, kind of like some of these other illnesses that have not been attributed to exposure to “tactical herbicides” in BWN but they are attributed to exposure to “tactical herbicides” within the ranks of “in-country” forces. So once again the fairness of your assessment does not consider all of the “factual circumstances” surrounding the use of “tactical herbicides”

Now let’s look at this from what is possibly a vicarious liability standpoint, if the DVA knows that NHL and these other illnesses that the BWN has contracted at a higher rate than the civilian population were not caused by these “tactical herbicides”, and for the last 35 years have done nothing to find out what did cause these service connected illnesses, then they have failed to do the job given them by Congress. In reality, the “factual circumstance” is either one of two things, either they were caused by the use of “tactical herbicides”, and the DVA is knowingly, intentionally and negligently derelict in their duty by denying these war time Veterans their rightfully earned benefits, or the DVA knows these illnesses were not caused by “tactical herbicides” but some other service related issue, similar to what the DVA claims to have caused NHL in BWN, then the DVA has been knowingly, intentionally and negligently derelict in their duty to determine the cause of these illnesses and then provide the appropriate care and benefits for these veterans.

In either case it is plain to see that the DVA has been knowingly, intentionally and negligently derelict, therefore, something should be done immediately to correct this matter, first of all, those responsible for this continuing catastrophic breakdown of required duties, should be held accountable and it should not take another study or 35 more years to be completed. Yes, this is just another example of why I and a lot of others consider the actions of the DVA, in this matter, to be disrespectful and shameful and it is being directed toward the Naval Veterans of the Vietnam War.

Another point that demonstrates this disrespectful and shameful conduct is shown when shortly after the announcement of the release of the IOM’s update, someone at the DVA put out a statement that the IOM recommended that more studies be conducted in the area of BWN and exposure to “tactical herbicides”. Sir, I respectfully submit that they did not recommend anything of the such, they clearly said that there was obvious and direct evidence that indicates that the BWN was at risk to exposure to the “tactical herbicides” used in Vietnam. This is just another example of how the “factual circumstances” are being misconstrued by the DVA in order to protect the ones that should be held accountable for this disgraceful dereliction of duty directed at these Vietnam War Veterans.

Think about this, the DVA releases a projection that if this proposed change in direction were to take place, it would provide over 800,000 additional Veterans coverage under the presumption of exposure. Thus it would cost some 27 billion dollars a year to pay for this change. Now I don’t mind telling you that is a little outrageous and it borders on ridiculous. DOD numbers indicated that there were only 514,000 offshore veterans at the end of the war. I am pretty sure some of them have died in the interim. I do think that if the death rates stayed the same since the last census then that 800,000 would probably be the total number of Vietnam War Veterans alive, not the ones affected by this proposed change. That number would most likely be closer to 100,000 or less. For someone at the DVA to make such a projection as erroneous as these numbers appear to be, just demonstrates even further what I and many others have been saying all along. These and similar actions of those at the DVA obviously projects an attitude of disrespect and in this case it is being directed towards the Naval Veterans of the Vietnam War.

So in closing, I once again, implore you to correct these appalling failures on the DVA’s part and not procrastinate any longer. These honorable men and women are dying at a very high rate and your failure to act appropriately and promptly in this matter will continue to be perceived as a demonstration of an extremely disrespectful and shameful attitude, which is unquestionably being directed at the Naval Veterans of the Vietnam War.

Respectfully submitted,

Joe L. Covington, USN
Veteran of the Vietnam War,
1971 to 1973

Cc: Eric Shineski, Secretary of DVA
Patrick Dunne, Deputy Secretary of DVA
Senator Daniel Akaka, Chairman, Senate Veterans’ Affairs
Congressman Bob Filner, Chairman, House Veteran’s Affairs
Thomas “Chet” Edwards, United States Representative
John Cornyn, United States Senator
John Wells, Attorney-at-law, Veterans Advocate

We advise you to follow Joe's blog, A Citizen's Reflection, regularly. As you can see from above, it will be well worth your while.


”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

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  1. noli Capitulo00:48

    This is truly a very remarkable letter, It is passionatrly well written. Thank you very much for this letter, I am very proud that you are on our side. Again, thank you.

  2. Anonymous17:56

    The DVA and all the other readers this letter targets will have to really plug their ears to keep from hearing what this letter is saying. Hope and pray that the truth hurts enough to bring about action and victories for my brave shipmates.

  3. Anonymous10:26

    I know that this has probably been covered before, most likely addresses as well, why is it that we as servicemen/women, why can't we sue the DVA? Is it because they are the government? I'm not to sure what the law is on that, but this affects so many people, you would think that have of us baby boomers would have a heck of an impact in a court of law...I was just curious, and I am sorry if this has already been covered. This would definately be in the relms of a "classical, class action suit" of the most astounding magnatude....Sincerely, Gary W. Halsey Sr.

  4. Mr. Halsey,

    The best short answer I can provide is from a document that I retrieved from Nolo's Plain English Law Dictionary [url below].

    In short here is what it says:

    U.S. Supreme Court
    FERES v. UNITED STATES, 340 U.S. 135 (1950)
    340 U.S. 135
    Argued October 12, 1950.
    Decided December 4, 1950.

    The United States is not liable under the Federal Tort Claims Act for injuries to members of the armed forces sustained while on active duty and not on furlough and resulting from the negligence of others in the armed forces. Pp. 136-146.

    (a) The Tort Claims Act should be construed to fit, so far as will comport with its words, into the entire statutory system of remedies against the Government to make a workable, consistent and equitable whole. P. 139.

    I recommend that you visit the site and read the entire decision. Justice Jackson delivered the decision for the majority.

    Hope this helps.



  5. I would add one point:

    The Feres doctrine does not cover criminal complaints, such as malfeasance, gross negligence and so on.

    Keep that in mind as it is a very real possibility and has been discussed in some circles.