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

"Legal Alert Newsletter", June 2008, Weitz Morgan Law Firm, of Austin, Texas ^ | Monday, June 30, 2008 | Mark Weitz

[Right Winged American]

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.

From "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 [Bravo Zulu].

[Right Winged American]

Note: Due to the questions about a previous posting: Department of Veterans Affairs Prepares to Strip John McCain of Vietnam Veteran Title, here is a rather nice explanation of how this all came about. The blog it comes from is also an excellent resource for those of us in the Blue Water Navy to use in dealing with the Department of Veterans Affairs.

For more Blue Water Navy Vietnam Veterans/Agent Orange Info, go here:

http://bluewaternavy.org

Discussions/Forum about Blue Water Navy Vets, Here:

http://bluewaternavy.org/phpBB2/index.php

FreepMail me to join the Blue Water Navy ping list.

 

 

Blue Water Navy
Vietnam Veterans
of America

[Right Winged American]

Slinger, this may help answer some of the questions in the previous post. You may consider it pingworthy too.

[magslinger]

SONOBUOY PING!

Click on pic for past Navair pings.

Post or FReepmail me if you wish to be enlisted in or discharged from the Navair Pinglist.
This is a medium to low volume pinglist.

[Ron Jeremy]

, but by the 1980’s it was permanently disabling and killing Vietnam veterans by the tens of thousands.

Stopped reading there. What a load.

[Right Winged American]

Stopped reading there. What a load.

Don't believe the numbers? So did I. Then I tried to find out the actual figure.

Guess what? The DVA will not release those figures.

Have to protect the veterans privacy, don't'cha know...

[Tallguy]

Must be an election around the corner. We’re getting the “servicemen-as-victims” stories. Without commenting on the facts of this article, this is how liberals prove their ‘support’ for the US Fighting Man. They treat him/her as a potential customer for social services.

[Ron Jeremy]

Please...believe me when I say I have sympathy for the vietnam vets exposed.. I really do. but ten’s of thousands is simply not a credible number. I would bet that, in terms of deaths, you would be hard pressed to prove 500.

[Right Winged American]

Please...believe me when I say I have sympathy for the vietnam vets exposed.. I really do. but ten’s of thousands is simply not a credible number. I would bet that, in terms of deaths, you would be hard pressed to prove 500.

Ok, I do not have the figures of Army/Marine ground forces who have the Cancers/Lymphomas directly caused by exposure to the Dioxins in Agent Orange.

However, the figure I have for "Blue Water Navy" Vietnam Veterans with these Cancers/Lymphomas who have had their claims DENIED by this ruling is 25 to 35 THOUSAND.

Of course, that's the ones, like me, who are still ALIVE. And I am diagnosed with CLL Leukemia, which doesn't kill you quite as fast as the guys with prostate cancer; They've been dying and a somewhat higher rate.

Do you know how many kinds of cancer the National Academy of Science's Institute of Medicine count as 'presumed' to be caused by exposure to contaminates of Agent Orange?

Would you care to venture a guess as to how many veterans have died without knowing the disease that killed them was 'presumed' to be caused by AO?

It's not as if the DVA is sending out letters asking if you have this or that disease, now is it?

God, the ignorance...

[Ron Jeremy]

Ok, I do not have the figures of Army/Marine ground forces who have the Cancers/Lymphomas directly caused by exposure to the Dioxins in Agent Orange.

I've been searching.. can't find anything so far.

However, the figure I have for "Blue Water Navy" Vietnam Veterans with these Cancers/Lymphomas who have had their claims DENIED by this ruling is 25 to 35 THOUSAND.

Good. Is it really your position that everyone who served on a ship in vietnam who gets cancer should have an Agent Orange claim? People get cancer, you know. Absent agent organge, lots and lots of soldiers and sailors would have still gotten cancer. How can some guy who served on a destroyer possibly claim that Agent Orange caused his cancer? The army guys who got sick either handled the stuff or were on the ground right after its application. None of that applies to blue water navy.

Of course, that's the ones, like me, who are still ALIVE. And I am diagnosed with CLL Leukemia, which doesn't kill you quite as fast as the guys with prostate cancer; They've been dying and a somewhat higher rate.

While of course I am sorry for your condition, what makes you think Agent Orange caused it?

Do you know how many kinds of cancer the National Academy of Science's Institute of Medicine count as 'presumed' to be caused by exposure to contaminates of Agent Orange?

Nope. But I noticed googling around that people fatties with type II diabetes, a very common ailment these days, are also claiming that it was because of agent orange.

Would you care to venture a guess as to how many veterans have died without knowing the disease that killed them was 'presumed' to be caused by AO?

Sure. Less than 500.

It's not as if the DVA is sending out letters asking if you have this or that disease, now is it? God, the ignorance...

Ignorance would be assuming that everyone who served in Vietnam and has cancer got it because of Agent Orange.

[Ron Jeremy]

Will a memorial to Chunky Monkey
consumers be next?
By Steven Milloy and Michael Gough
Copyright 2000 The Washington Times
April 30, 2000

James Zumwalt’s April 25 Commentary column, “Honoring all who died,” has noble intentions but lacks a factual basis. Mr. Zumwalt urges a memorial for Vietnam veterans who died as a result of Agent Orange exposure and suicides related to post-traumatic stress disorder.

No credible scientific evidence exists that Agent Orange has caused harm to human health. The Environmental Protection Agency’s (EPA) Science Advisory Board concluded that dioxin, the substance of concern in Agent Orange, has caused no health effects except for a skin disease seen at very high exposure levels.

Tests for dioxin in U.S. ground troops serving in areas sprayed by Agent Orange indicate there were no measurable exposures. There is no excess mortality among U.S. Air Force personnel who sprayed 90 percent of the Agent Orange and definitely were exposed.

The hype surrounding dioxin is best deflated by our recent study measuring the level of dioxin in a serving of Ben & Jerry’s ice cream at about 200 times the EPA’s so-called “safe” level. Ben & Jerry’s claims, “The only safe level of dioxin exposure is no exposure at all,” but no one is rushing to build a monument to consumers of Chunky Monkey.

Finally, there is no question that suicides have been elevated in combat veterans. A monument would be better dedicated to all combat veterans whose minds were so damaged that they took their own lives.

STEVEN MILLOY
Publisher
Junkscience.com
Potomac

MICHAEL GOUGH
Bethesda
Michael Gough was chairman (1990-95) of the Department of Health and Human Services’ advisory panel to the U.S. Air Force study of the effects of Agent Orange.

[MosesKnows]

While the process removed the salt from the water, it did not filter out the toxins

If water and the process did not filter out toxins, why is that the Agent Orange I use on yard and driveway plants becomes ineffective when rained on?

[Unrepentant VN Vet]

Ten thousand comedians out of work, and WTH do you get when you try to start a serious discussion?

[Ron Jeremy]

If water and the process did not filter out toxins, why is that the Agent Orange I use on yard and driveway plants becomes ineffective when rained on?

On top of that.. sunlight breaks down agent orange in a few days. Sure some guys got exposed.. sure they should be given help even if an EXACT statistical linkage is not proven.. but that's guys that handled the stuff or were directly exposed to it. That some dude on a aircraft carrier 50 miles offshore wants to blame is type 2 diabetes on agent orange is absurd.

[Right Winged American]

If water and the process did not filter out toxins, why is that the Agent Orange I use on yard and driveway plants becomes ineffective when rained on?

On top of that.. sunlight breaks down agent orange in a few days. Sure some guys got exposed.. sure they should be given help even if an EXACT statistical linkage is not proven.. but that's guys that handled the stuff or were directly exposed to it. That some dude on a aircraft carrier 50 miles offshore wants to blame is type 2 diabetes on agent orange is absurd.

The organophosphates that constitute the active ingredient in the 'rainbow' herbicides do indeed break down in sunlight. Hence the need for reapplication. Particularly since, as you know, it rains in Vietnam.

The Dioxins, particularly TCDD, which were contaminates of the 'rainbow' herbicides DO NOT.

As I am certain that you know.

The mutagen related to AO diseases and cancers were dioxins.

You know, the stuff they tried to incinerate from the soil at Times Beach. And found that they just flew up the stack attached to ash, contaminating the soil around the incinerators.

Did you read the RAN report? You know, the biochemistry parts?

It's clear to me you've made up your mind about this years ago. Regrettably, I suspect you'll continue to hold your untenable position, regardless of the research. But hey, you sound sooo knowledgeable! Someone (cough!VAGenCouncilcough!) will believe you, I’m sure...

[Right Winged American]

I know. I could play dueling quotes with this guy till hell freezes over, and he'll never change his opinion. He's pinged me before when I post AO or BWN related stuff, and I usually waste time replying to him. I should say that all of the scientific studies (including the ones he quotes) are available on www.BlueWaterNavy.org site.

Arguing with him is like using a rubber swab handle. No matter how hard or fast you work, you don't get anywhere.

Sigh.

[Ron Jeremy]

You have nothing on your side but emotions. If you think that tens of thousands of veterans have died from agent orange, then you have not looked at this rationally. The air force guys who handled the stuff show no increase in disease than the overall population. Now, I am willing to give them the benefit of the doubt.. but you think some lard ass who served on a ship 50 miles off shore who gets diabetes should be classified as an agent orange victim. That is nuts. How about this: Instead of posting propaganda.. post a single study that backs up your claims.

[Right Winged American]

So I guess you didn’t read the Royal Australian Navy reports in re; flash steam distillers.

Ron, we’ve been here before. Address the question, and quit questioning my motives. The AirForce reports quoted were from the ‘80s, just quoted in 2000.

But you knew that, didn’t you.

[Ron Jeremy]

First, we have never discussed this, or anything else before. You have me confused with someone else. The simple fact is that there is no good evidence of health problems for people who even had direct exposure. But fine, give them the benefit of the doubt. But the idea that some guy on a destroyer 30 miles out at see has any effects is laughably absurd on its face, and it is a good thing all of your claims are being turned down.

[Unrepentant VN Vet]

I’ll be back tomorrow, RWA.

Don’t let the Professional Poster get to you.

If you started a thread talking about the Earth being a spheroid, he’d use up a terabyte claiming that it was flat just to get some attention.

[donozark]

If one accepts the total 2.7 million Americans as actually having served “In-County,” and I believe 800K (approx.-do you agree with this 800K figure?) were “Blue Water Navy Veterans” then the government has, or hopes to have about 1.9 million VN Vets to deal with. Obvious to most, they are trying to reduce the figure. Of course this number was prior to illness, car/truck deaths, work deaths,etc. taking their toll since war’s end.
Oddly, I have census figures (inexact as they are) that show 1.7 million VN Vets alive in 1995, yet only one million alive in Y2K, only 5 years later. Much confusion here.
How do we address this problem if the gov. doesn’t even know how many of us are alive today? No wonder so many “phony vets” surface! Some even drawing veterans benefits.
Methinks the gov. is trying to draw a line somewhere, but excluding (from the class) 800K recipients of the Vietnam Service Medal who received it some 40 years ago is grossly unfair. Only turns one vet against another.
Ever noted how gov. dislikes intensely the retroactive AWARDING of medals (CAB, CMB for Aviation Unit medics), Air Assault Badge,etc., yet deigns to strip the VSM (in essence) and toss 800K sailors from the ship?