Sunday, December 08, 2013

HR 543, HR 1494, The IOM, The VA, and the House of Representatives


Let’s take a look at how the IOM report [click here to read the previous post about the IOM report] fits with what the House of Representatives has been doing. 

You are, of course, familiar with the US House of Representatives, aren’t you?  For the past two years it has been Republican led, which means as a body, they abhor spending and waste, and the House does all in its power to avoid as much spending as possible.  Keep that in mind as you read on. 

The IOM report essentially says it cannot find scientific or documentary evidence one way or another, to prove or disprove whether herbicides used in Vietnam did or did not poison the now-Veterans of the US Blue Water Navy. 

“Although serum TCDD measurements in only a small portion of Vietnam-era veterans are available, the observed distributions of these most reliable measures of exposure make it clear that they cannot be used as a standard for partitioning veterans into discrete exposure groups, such as service on Vietnamese soil, service in the Blue Water Navy, and service elsewhere in Southeast Asia. For example, many TCDD values observed in the comparison group from the AFHS exceeded US background concentrations and overlapped considerably with those of the Ranch Hand subjects.”


“In recent years, there has been concern about dioxin exposure among personnel who served offshore but within the territorial limits of the Republic of Vietnam. It has been hypothesized that in addition to possibly experiencing drift from herbicide spray missions, personnel on these ships that converted seawater by distillation may have been exposed via drinking water. Those concerns were heightened by findings from an Australian study (Muller et al., 2002) that showed that TCDD could be enriched in a simulation of the potable-water distillation process that was used on the US Navy and Royal Australian Navy ships during the Vietnam War era. The National Academies convened the Blue Water Navy Vietnam Veterans and Agent Orange Exposure Committee to address that specific issue; its report (IOM, 2011) found that information to determine the extent of exposure experienced by Blue Water Navy personnel was inadequate, but that there were possible routes of exposure.”

By law [you can find it in Title 38 United States Code, in several significant Veterans Court cases, and in tons of Bureau of Veterans Appeals rulings] when the VA is presented with a situation that can be neither proven nor disproven, it MUST decide in favor of the Veteran. 

By this ruling, then, the VA MUST decide in favor of the Blue Water Navy Veterans who have filed claims for presumptive exposure to herbicides during service in the Vietnam War. 

The Blue Water Navy Veterans have never been studied as a class, and compared to other classes who served in-country, and still other classes who did not serve in the war at all.  We made a formal request of the IOM to ask Congress to authorize and fund such a study when the IOM’s Committee on Veterans and Agent Orange had their first meeting in D.C. in June of 2012. 

Nor has the VA ever provided one shred of proof, scientific or documentary, that Blue Water Navy Veterans were not exposed to herbicides during service in the Vietnam War, particularly in a fashion demonstrated by the Australian government in its scientific study of its own Blue Water Navy Veterans, which found them to likely be contaminated via the ships’ desalinization process which uses heat to desalinize and then superheat to decontaminate and further demineralize the water used on board Navy ships for cooking, cleaning, drinking, bathing, shaving, brushing teeth, etc. 

Therefore, in the absence of proof one way or the other, the DVA MUST rule in favor of the Veteran.  Right? 

Wrong.  The DVA claims the right to unilaterally and without any basis in science or in fact, redefine the meaning of “service in Vietnam” in order to exclude the Blue Water Navy, the Blue Sky Air Force, and those poor souls who served on Okinawa, Johnston Island, and other locations where tactical herbicides were stored, used, or shipped through, that were outside the Combat Zone/Theater of Vietnam.  The US Federal Court of Appeals for the Federal Circuit has told us so [Haas vs. Peake, 2007-7037, October 09, 2008].

So what does the House of Representatives, that august body of legislators assembled to make laws, appropriate money, have to do with all of this?

There are two bills in Congress, HR 543, the Blue Water Navy AO Act, and HR 1494, a bill authorizing the Department of Defense to research which US Naval commissioned vessels were ever inside the waters defined at the time of the war as Territorial Waters of the Republic of Vietnam [South Vietnam], and details dates and locations and durations of the vessel’s stay inside those territorial waters.  Then the DoD is to provide that information to the Secretary of Veterans Affairs, ostensibly to provide easy verification of eligibility for claims processors in the VA system once HR 543 is passed. 

Ummm, can you imagine what that research project will cost, and how long it will take to track and chart those roughly 550 ships to determine when and for how long, and where they were inside the RVN Territorial Waters? 

Having seen a number of ships “Deck Logs” [smooth logs rewritten with salient entries from those green canvas covered log books you remember from the pilot house and the quarterdeck] the information is not all there.  

It is, however, in those green canvas log books.  Every course change, speed change, maneuver, incident, accident, evolution, event, or happenstance that occurred throughout each day is in those green canvas covered logs.  Every navigational sighting is recorded, as were landmarks.  In some cases targets were noted, and records of expended ammo recorded. And more…much more.  

Who wrote those logs?  Every officer and enlisted man on watch duty charged with making entries.  Indeed, that would include, the Officer of the Deck, Junior Officer of the Deck, Executive Officer, Commanding Officer, Navigator, quartermasters, boatswainsmates of the watch and even, on some ships, the lowly messenger of the watch, and on occasion, others who wrote in those books, in port and underway.

Those books were full of coffee stains, cigarette burns, cross-outs, misspellings, chicken scrawl, and on special occasions, even some poetry!  Pages were sometimes, against orders, ripped out and started over.  Sometimes, the books would get soaked on the quarterdeck in port due to heavy rain. 

Why would the House of Representatives appropriate money for this project, and risk excluding Veterans who could not provide proof of being in a ship’s billet at the date and time of that ship’s entry inside the Territorial Limits of the Republic of Vietnam?  Even now we get news of Veterans who’s ship has been added to the VA’s list of ships approved for presumptive exposure eligibility,being forced by the VA to provide buddy statements verifying that they were indeed on board said ship while it was on said mission up a river! 

Why waste the taxpayer’s money on such a research project that will open the research up to failures, and not be an essentially trustworthy source of verification. 

For the same or less money, the VA can serve a lot more Veterans by simply reverting to its former policy of granting presumption to those who received the Vietnam Service Medal, or the Armed Forces Expeditionary Medal for Service in Vietnam.  Think of the time and money saved by those claims processors in the VA.  The administrative savings alone should cover the cost of the additional granted claims, and the DoD research would not be necessary.  We have advocated this since the first introduction of a bill requiring presence inside territorial waters.  The administrative costs of this HR 1494 approach are sky  high, and will result in many Veterans not getting benefits who may be entitled.  Using the VSM as the qualifier will grant benefits to some not legitimately eligible, but will ensure that all who are eligible will receive benefits. 

Here is what the Father of the Agent Orange Act of 1991, Admiral Elmo Zumwalt said in his 1990 report that was eventually used by Congress to create that bill:


“Alternative 1:
Any Vietnam Veteran, or Vietnam Veteran’s child who has a birth defect, should be presumed to have a service—connected health effect if that person suffers from the type of health effects consistent with dioxin exposure and the Veteran’ s health or service record establishes 1) abnormally high TCDD in blood tests; or 2) the veteran’s presence within 20 kilometers and 30 days of a known sprayed area (as shown by HERBs tapes and corresponding company records); or 3) the Veteran’ s presence at fire base perimeters or brown water operations where there is reason believe Agent Orange have- occurred.

“Under this alternative compensation would not be provided for those veterans whose exposure came from TCDD by way of the food chain; silt runoff from sprayed areas into unsprayed waterways; some unrecorded U.S. or allied Agent Orange sprayings; inaccurately recorded sprayings; or sprayings whose wind drift was greater than 20 kilometers. Predictably, problems generated by the foregoing oversights, the mass of data to be analyzed as claims were filed, and the known loss of many service records would invalidate many veterans’ legitimate claims

“Alternative 2:
Any Vietnam Veteran or child of a Vietnam Veteran who experiences a TCDD—like health effect shall be presumed to have a service—connected disability. This alternative is admittedly broader than the first, and would provide benefits for some veterans who were not exposed to Agent Orange and whose disabilities are not presumably truly service-connected.  Nevertheless, it is the only alternative that will not unfairly preclude receipt of benefits by a TCDD exposed Vietnam Veteran.

“Furthermore, this alternative is consistent with the Secretary’s decision regarding the Service-connection of non-Hodgkin’s lymphoma, as well as legal precedent with respect to other diseases presumed by the Department of Veterans Affairs to be connected to one or more factors related to military service (i.e. veterans exposed to atomic radiation and POW’s with spastic colon).”
As you can plainly see from the above, we believe Admiral Zumwalt’s intent here to be the fairest, but most importantly, the most inclusive…it covers any Vietnam Veteran for benefits. 

And, in the absence of proof to the contrary, the VA MUST NOT say the Blue Water Navy Veterans were NOT exposed. 

Contact your Representative, and your Senators [both] and tell them to drop the territorial waters requirement and the wasteful, error laden DoD project of ship location validation.  Tell them to use the money to avert the furtherance of errors in judgment by the Veterans Administration and Department of Veterans Affairs, and the US Congress and create a revision to the Agent Orange Act that leaves no one behind. 



”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 Obama 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

"It follows then as certain as that night succeeds the day, that without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious."--President George Washington

Copyright © 2005-2013: VNVets Blog -- Now in our Ninth Year of Service to Veterans; All Rights Reserved. Reprinting or copying of the contents of this blog without the express permission of the author is unlawful.