VA leaving navy veterans adrift in sea of Agent Orange

The Blue Water Navy Vietnam Veterans Act of 2017 (HR 299), a bill to restore the presumption of Agent Orange exposure to those veterans who served in the bays, harbors and territorial seas of Vietnam, was introduced on Jan. 5. It was introduced by Rep. David Valadao (R-Calif.) and co-sponsored by Rep Tim Walz, D-(Minn.), Elise Stefanik (R-N.Y.), Joseph Courtney (D-Conn.), Joe Lobiondo (R-N.J.) and Dennis Ross, (R-Fla.) It picked up over 100 additional co-sponsors in less than a week.

HR 299 would correct a Veteran’s Affairs (VA) policy decision implemented in 2002, that unilaterally striped these veterans of the presumption of exposure granted by the Agent Orange Act of 1991.

{mosads}This action was based on a 1997 General Counsel’s opinion (27-97) that interpreted the phrase “service in the Republic of Vietnam” to apply only to the landmass. This opinion ignored international recognition that national sovereignty extended to the territorial seas.

The United States specifically recognized this sovereignty in the 1954 Geneva Accords and the 1973 Paris Peace Treaty that ended the Vietnam War.   

Inexplicably, the VA bureaucracy has refused to reconsider its position despite Centers for Disease Control and Prevention (CDC) studies showing a higher incidence of Non-Hodgkin Lymphoma among Navy veterans who did not serve in-country.

The Australian VA also discovered that the cancer incidence among Royal Australian Navy veterans was 22 to 26 percent above the norm, compared to an 11 to 16 percent increase above the norm in those who fought onshore.

A special committee of the Institute of Medicine (IOM) confirmed that dioxin infiltration into the bays, harbors and territorial seas of Vietnam was a “plausible pathway” of exposure.

Our Australian ally, who fought alongside us on land and sea, discovered that the ship’s evaporation distillation system, which converted saltwater to drinking water, did not remove the dioxin but enriched it.

This resulted in an enhanced level of dioxin being released into the ship’s potable water tanks, where it was used for hydration, cooking, cleaning, showering, food preparation and the ship’s laundry facility.  

Two separate committees of the Institute of Medicine (IOM) confirmed this finding. The presence of the dioxin in the estuarine waters of Vietnam has been recognized by other IOM committees.

The VA has granted the presumption of exposure to ships that entered the Vietnamese river system, in what they called “inland waters.”

In April of 2015, the Court of Appeals for Veterans Claims ruled that the VA policy of excluding bays and harbors from the definition of inland waters, presumption of exposure was irrational, arbitrary and capricious. The VA was ordered to “reevaluate its definition of inland waterways – particularly as it applies to Da Nang Harbor — and exercise its fair and considered judgment to define inland waterways in a manner consistent with the regulation’s emphasis on the probability of exposure. Instead, on Feb. 6, 2016, the VA doubled down on its original policy of exclusion. That policy is currently under review by the Court of Appeals for the Federal Circuit. Oral arguments are expected in early Spring.

Veterans argue that the dioxin was confirmed in the major harbors as a result of river discharge plumes. A study of coral deterioration in Nha Trang Harbor, conducted two decades after the war, confirmed the presence of a toxic level of the dioxin in the Kay River, which discharges into Nha Trang Harbor harbor and the harbor itself, where American ships anchored.

In Da Nang harbor, drainage ditches, overspray and contaminated river water are blamed for Agent Orange infiltration. Additionally, self-propelled water barges on loaded water from a contaminated reservoir and furnished this water to ships at anchor in Da Nang.

Still, the VA refuses to reconsider its position.

At the root of the problem is the Congressional Budget Office’s ten year cost estimate of $1.1 billion. At the end of the 114th Congress, Blue Water Navy sponsors proposed a spending offset consisting of an increase in student visa fees. Sen. Patrick Leahy (D-Vt.) rejected this offset. So despite the support of 336 Members of Congress and 47 Senators, the bill died in Committee.  

The Blue Water Navy veterans are only the tip of the spear. Other veterans were exposed to the dioxin in places like Guam, Thailand, Laos, Cambodia, Panama, Korea and even stateside bases. Veterans have been exposed to toxic chemicals at Fort McClellan, asbestos on Navy ships, radiation poisoning, mustard gas and the toxic open air burn pits in Iraq and Afghanistan. President Donald Trump needs to identify a funding source for all toxic exposures or to ask Congress to remove veterans benefits from the offset requirements of the Pay As You Go Act of 2010.

VA Secretary David Shulkin can rescue these sea service veterans with the stroke of a pen. Reversing the exclusion policy makes sense and is supported by science. Shulkin can show that he is serious about toxic exposure and start his tenure on a high note. Otherwise, he will continue to face more Congressional scrutiny and litigation.

John B. Wells is a retired Navy Commander and an attorney practicing military and veterans law. He is Executive Director of the nonprofit Military-Veterans Advocacy, Inc.

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