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vietnam_war_vet

"boots-on-the-ground" Vietnam In-country Dva Policy/requirement For Ao Claims

Question

Last spring, I was rejected/denied for the 4th time by the DVA for my AO claim (I have chloracne and DMII diabetes). In 1990, the Boise VAMC took tissue samples from me during an AO screening and their doctors did find dioxin/AO in my fat tissue. I was then placed on the DVA's official Agent Orange registry, but in the same 1990 notification letter...the DVA refused to acknowledge or treat my chloracne -- even though the skin sores/lesions started during my second tour in 1972-73. The Boise VAMC doctors labeled it as a form of folliculitis (<--- spelling?) and not caused by AO exposure.

I served at Nankon Phanom Air Base (NKP) in northeasternmost Thailand (across the Mekong River from Laos). As required on occasion per Task Force Alpha, I went on interdiction missions into Laos along the Ho Chi Minh trail. The HCM trail was frequently/heavily defoliated with AO, plus the perimeter of NKP was AO defoliated. I watched the C-123s spray and knew enlisted personnel on the flightline who loaded the AO onto those planes. At our commander's meetings, we "enlisted" were told it was pesticide that was being sprayed around the base perimeter for mosquito control. How stupid did our officers think we were? After those sprayings, the mosquitoes continued to thrive, while all the plantlife died.

Back to my most recent denial: for this claim attempt - I had the DAV as my representative/service officer. The resulting DVA denial letter informed me that a review of my service records showed that I had not put "boots-on-the-ground" in-country Vietnam, therefore I was not eligible for my AO DMII claim or any other AO-related claim. My state DAV service officer then told me that I could appeal, but I would be wasting my time and everyone elses since I had not been within the borders of Vietnam proper.

I did a Google search plus a search on this forum's search engine and really didn't get any definitive insight on this "boots-on-the-ground" in-country service policy requirement for AO comp claims.

For my NKP/TFA tour, I was awarded the VSM, RVCR, and the AFCM.

On the Yahoo AO "Spring-Into-Action" forum, one of the moderators told me that former DVA Secretary Principi was responsible to this "boots-on-the-ground" in-country Vietnam policy and it was done to eliminate AO-exposed veterans like myself who served in Laos, Cambodia, and Thailand from qualifying for compensation claims....strictly a beancounting measure by Principi to reduce the number of compensated claims/awards. Is this true??

Any insight or feedback would be appreciated. -- Michael

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Guest Berta

Michael- Welcome aboard here and thank you for your service-

Veterans have had success in AO claims without Vietnam "visitation" , as the regs state.

This case is one of them:

http://www.va.gov/vetapp98/files1/9800877.txt

The veteran served on Okinawa-

He had prostrate cancer on the AO list.

He successfully proved to the BVA that he had been exposed to AO on Okinawa and was awarded AO VA comp.

Do you have a copy of the dioxin tests results you mentioned?

I realised today- pulling up this claim- that Congressman Lane Evans

had written to Rumsfield years ago- as to whether or not AO was there- on Okinawa where Evans had served-with no answer I know of , yet this vet proved it was there.

This isn't going to be easy- but you said you have a dioxin test that shows it was in your system.

In the denials you got has VA acknowledged that and given any

explanation as to how they think it got there?

Do you have all of your SMRs?

If not I suggest you go to :

http://www.archives.gov/

then click on Military service records- you can fill out the SF 180 on line or print it off-

If you do it on line they will have a bar coded thing for you to print off ,sign, and mail to them to assofiate with your request.

I would ask for- if I were you- all Service medical records, and any service personnel records showing your destinations and arrivals-anything they have-

Your unit might well have a web site where you could possibly find someone who could verify the AO being used there-

This vet- AO from Thailand- almost lost his comp but got it back:

http://www.va.gov/vetapp04/files2/0418252.txt

There are some key issues in the claim that all vets should take note of-

the VA did not come up with any evidence to the contrary as to his actual exposure-

I mean the part about the Hayes :

"It is not disputed that the veteran served in Ubon, Thailand,

and worked on the Hayes Dispenser weapons system on B57

aircraft. It is not disputed that the Hayes Dispenser

weapons system and B57 aircraft were used in the Operation

Ranch Hand defoliation program. It is not disputed that the

defoliation program continued during the time period the

veteran worked on the Hayes Dispenser weapons system. It is

not disputed that the veteran developed a lympho histiocytic

type of malignant lymphoma shortly after his discharge from

active service.

On the other hand, it could not be verified that B-57G

aircraft were used to spray herbicides during 1970 and 1971,

and it could not be confirmed that Ranch Hand aircraft flew

missions out of Ubon, Thailand. "

The VA tried to CUE itself to sever his SC comp but they could not succeed.

There was too much 'more than likely' as to the Hayes aircraft and that they were likely contaminated with AO.

Another point- since you were found with dioxin in your system-

that would certainly support a good IMO-Independent Medical Opinion-

these are costly and it should come from an environmental medical specialist but it could be well worth the money-

I feel you should certainly appeal this decision, and make sure you send the VA copies of anything they dont have- as listed on the evidence page of the decision-

There has been much pressure on the VA about the Blue Water regs- regs which deny service connection to Navy vets who were-in my mind-certainly exposed to AO in many cases- in Vietnam's offshore waters

and have AO disabilities but did not step on Vietnam soil.

You are not alone in having AO disabilities that the VA does not want to recognise yet you can see from above claims- that persistence and evidence can pay off.

Berta

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On the Yahoo AO "Spring-Into-Action" forum, one of the moderators told me that former DVA Secretary Principi was responsible to this "boots-on-the-ground" in-country Vietnam policy and it was done to eliminate AO-exposed veterans like myself who served in Laos, Cambodia, and Thailand from qualifying for compensation claims....strictly a beancounting measure by Principi to reduce the number of compensated claims/awards. Is this true??

No, actually it's not true. None of it. There is no such thing as a requirement for "boots-on-the-ground" in Vietnam to be eligible for consideration under AO presumption. It isn't written anywhere in statute, regulation or OGC Precedent Opinion. The defining document is VAOPGCPREC 27-97

This is an opinion by the VA's Office of General Council and it is binding on all VA employee's. The OGC is the Veteran's Administration's in house lawyers. In the 90's there was a lot of confusion as to the definition of "in the Republic of Vietnam" which is the delimiting phrase used in US Code governing AO Presumption. The Secretary of the DVA asked the OGC to examine the statutes, the Congressional Record and the Federal Register to determine what Congress intended when they wrote the legislation. The result was VAOPGCPREC 27-97. Now, OGC 27-97 isn't law or regulation but it is binding on all VA employee's until such time as a court of law says otherwise or Congress passes additional legislation to modify the statutes.

OGC 27-97 was the 27th opinion rendered in 1997, long before Principi became Secretary. Jesse Brown was Secretary from 93-97 when he was replaced by Togo West in 12/97. So you can see it had nothing to do with Anthony J. Principi and for what it's worth, there is no supporting evidence it was a "bean counter" driven change.

I haven't seen the decision on your claim and you haven't told us the wording under "Reasons and Bases" so I can only guess as to what happened. If you have been denied 4 times you need to change something. Resubmitting the same old evidence isn't working. Read what it says under Reasons and Bases and provide the evidence they want.

There are two types of claims:

Direct

Presumptive

A successful direct claim will include 3 elements:

1. A diagnosis of a compensable condition

2. Military service

3. And a connection or nexus between the previous two.

In your case you need to prove Agent Orange was used where you served in Thailand & that you were exposed to it. You also need to show a diagnosis for each condition claimed.

In order to be successful in a presumptive AO claim you must satisfy the first two elements above and prove you served in The Republic of Vietnam. If you can prove that, you will be presumed to have been exposed to AO and that it caused the conditions claimed provided they are one of the eleven accepted conditions.

Unless you can prove service in country, you are left with a direct claim. Service anywhere other than Vietnam or Korea on the DMZ doesn't qualify for AO presumption.

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Michael- Welcome aboard here and thank you for your service-

Veterans have had success in AO claims without Vietnam "visitation" , as the regs state.

This case is one of them:

http://www.va.gov/vetapp98/files1/9800877.txt

The veteran served on Okinawa-

He had prostrate cancer on the AO list.

**Muchas gracias for this case link and the other one (Thailand related) on your other note. I have checked them both out. Definitely interesting and most likely useful for my case.

He successfully proved to the BVA that he had been exposed to AO on Okinawa and was awarded AO VA comp.

Do you have a copy of the dioxin tests results you mentioned?

**No....just the letter from 1990 DVA letter stating that due to the findings from my Boise VAMC AO screening/diagnostic tests, I had been added to the official DVA AO Registry.

I realised today- pulling up this claim- that Congressman Lane Evans

had written to Rumsfield years ago- as to whether or not AO was there- on Okinawa where Evans had served-with no answer I know of , yet this vet proved it was there.

This isn't going to be easy- but you said you have a dioxin test that shows it was in your system.

In the denials you got has VA acknowledged that and given any

explanation as to how they think it got there?

Do you have all of your SMRs?

If not I suggest you go to :

http://www.archives.gov/

**SMR = Service Medical Records? If yes, then I don't have them. I'll follow your instructions and do & submit the SF 180.

then click on Military service records- you can fill out the SF 180 on line or print it off-

If you do it on line they will have a bar coded thing for you to print off ,sign, and mail to them to assofiate with your request.

I would ask for- if I were you- all Service medical records, and any service personnel records showing your destinations and arrivals-anything they have-

Your unit might well have a web site where you could possibly find someone who could verify the AO being used there-

**Someone else suggested this and I tried Google for my unit....nothing. Any other suggestions besides a Google search?

This vet- AO from Thailand- almost lost his comp but got it back:

http://www.va.gov/vetapp04/files2/0418252.txt

There are some key issues in the claim that all vets should take note of-

the VA did not come up with any evidence to the contrary as to his actual exposure-

I mean the part about the Hayes :

"It is not disputed that the veteran served in Ubon, Thailand,

and worked on the Hayes Dispenser weapons system on B57

aircraft. It is not disputed that the Hayes Dispenser

weapons system and B57 aircraft were used in the Operation

Ranch Hand defoliation program. It is not disputed that the

defoliation program continued during the time period the

veteran worked on the Hayes Dispenser weapons system. It is

not disputed that the veteran developed a lympho histiocytic

type of malignant lymphoma shortly after his discharge from

active service.

On the other hand, it could not be verified that B-57G

aircraft were used to spray herbicides during 1970 and 1971,

and it could not be confirmed that Ranch Hand aircraft flew

missions out of Ubon, Thailand. "

The VA tried to CUE itself to sever his SC comp but they could not succeed.

There was too much 'more than likely' as to the Hayes aircraft and that they were likely contaminated with AO.

Another point- since you were found with dioxin in your system-

that would certainly support a good IMO-Independent Medical Opinion-

these are costly and it should come from an environmental medical specialist but it could be well worth the money-

**My wife (M.D. in audiology and Ph.D in deaf education) thought this was a good suggestion and encouraged me to do it. I have double insurance (hers through the university and my Medicare) so maybe I can limit the cost some? Worth a try.

I feel you should certainly appeal this decision, and make sure you send the VA copies of anything they dont have- as listed on the evidence page of the decision-

** Again, exactly what my wife has been encouraging me to do. Not excuses, but this past year has been more insane, stressful, and time-demanding than any time previously in my life. In addition to my job and my wife's and my ongoing physical health issues, both of my parents have been and remain in critical health. My Dad has been in-and-out of hospital ICUs 3 times so far this year. My Mom was diagnosed with stage 3 ovarian cancer last February. She had surgery, then radiation, and then 6 chemo treatments. It sadly didn't stop that damned cancer from metastasizing. She's now terminal and on hospice. Two weeks ago, I just returned back to New Mexico from a 3 week visit with them (Dad's in an Ohio continuing care nursing facility and Mom is in central Florida). That was my 3rd trip so far this year.

There has been much pressure on the VA about the Blue Water regs- regs which deny service connection to Navy vets who were-in my mind-certainly exposed to AO in many cases- in Vietnam's offshore waters

and have AO disabilities but did not step on Vietnam soil.

You are not alone in having AO disabilities that the VA does not want to recognise yet you can see from above claims- that persistence and evidence can pay off.

**I don't want to give up, but my plate has been and remains overly full. Reading that appeals decision about that other Nankon Phanom veteran who was finally approved for his AO-related claim....and that other veteran from Ubon Air Base just down river from NKP....how the hell does the DVA get away with dissing my virtually identical claim??? It makes no sense and reeks of illegalities and immoral/unethical treatment. Muchas gracias, Berta. Please also read my reply to TinCup Man for more specifics about my denial. -- Michael

Berta

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No, actually it's not true. None of it. There is no such thing as a requirement for "boots-on-the-ground" in Vietnam to be eligible for consideration under AO presumption. It isn't written anywhere in statute, regulation or OGC Precedent Opinion. The defining document is VAOPGCPREC 27-97

This is an opinion by the VA's Office of General Council and it is binding on all VA employee's. The OGC is the Veteran's Administration's in house lawyers. In the 90's there was a lot of confusion as to the definition of "in the Republic of Vietnam" which is the delimiting phrase used in US Code governing AO Presumption. The Secretary of the DVA asked the OGC to examine the statutes, the Congressional Record and the Federal Register to determine what Congress intended when they wrote the legislation. The result was VAOPGCPREC 27-97. Now, OGC 27-97 isn't law or regulation but it is binding on all VA employee's until such time as a court of law says otherwise or Congress passes additional legislation to modify the statutes.

**TinCupMan: from the DVA's 6/30/05 Notice of Disagreement (in iresponse to my filing that disagreement) and also so stated on the original 11/22/04 DVA decision (denial):

"We determined that the following condition was not related to your military service, so service connection couldn't be granted. Medical Description: Diabetes mellitus, type II associated with herbicide exposure is denied because you did not serve in the Republic of Vietnam during the Vietnam Era."

Also: "You contend that although you had service in Thailand and Laos (not confirmed by military personnel records), you were exposed to Agent Orange as a result of aerial spraying at Nakhon Phanom Air Base in Thailand. For informational purposes, the VA presumes that any veteran who served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, was exposed to an herbicide agent during such service. In the Republic of Vietnam means that you must have been in-country on land. Your service records showed overseas service in Thailand only from September 1969 to September 1970. Your service records did not confirm any possible exposure to Agent Orange."

The "interesting" thing about the DVA's comment ("not confirmed by military personnel records") is along with this most recent claim - I had submitted my DD-214 that clearly displays both of my SEA tours -- my first tour (Don Muang Air Base, Thailand 9/69 - 9/70) and my second tour at Nakhon Phanom Air Base from 9/72 - 9/73. I also presented a copy of my AFCM that was awarded to me due to my radio operator and interdiction missions service while I was at Nakhon Phanom Air Base 9/72 - 9/73. I presented a copy of the DVA's 1990 letter notifying me that due to the results of my AO medical exam at the Boise VAMC, I had been added to the DVA's official AO Registry. I'm still on that registry (I confirmed recently) and since then, I have received and still receive mailings of the DVA's "Agent Orange Review.

But neither the 11/04 DVA denial nor the 6/05 Notice of Disagreement mentioned any of those records/documents....and both DVA missives state that I only served one tour (the 9/69 - 9/70 one) in Thailand....despite both of my tours clearly documented on my DD-214, etc..

Also from the 2nd quoted passage above, "In the Republic of Vietnam means that you must have been in-country on land," my state DAV service officer informed me that this was the DVA's way to explain how the the "boots-on-the-ground Vietnam in-country" policy had impacted me/my denial.

I hope that this addresses some of your questions, TinCupMan. I've been dissed by the DVA....yet again. -- Michael

OGC 27-97 was the 27th opinion rendered in 1997, long before Principi became Secretary. Jesse Brown was Secretary from 93-97 when he was replaced by Togo West in 12/97. So you can see it had nothing to do with Anthony J. Principi and for what it's worth, there is no supporting evidence it was a "bean counter" driven change.

I haven't seen the decision on your claim and you haven't told us the wording under "Reasons and Bases" so I can only guess as to what happened. If you have been denied 4 times you need to change something. Resubmitting the same old evidence isn't working. Read what it says under Reasons and Bases and provide the evidence they want.

There are two types of claims:

Direct

Presumptive

A successful direct claim will include 3 elements:

1. A diagnosis of a compensable condition

2. Military service

3. And a connection or nexus between the previous two.

In your case you need to prove Agent Orange was used where you served in Thailand & that you were exposed to it. You also need to show a diagnosis for each condition claimed.

In order to be successful in a presumptive AO claim you must satisfy the first two elements above and prove you served in The Republic of Vietnam. If you can prove that, you will be presumed to have been exposed to AO and that it caused the conditions claimed provided they are one of the eleven accepted conditions.

Unless you can prove service in country, you are left with a direct claim. Service anywhere other than Vietnam or Korea on the DMZ doesn't qualify for AO presumption.

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