The Veteran' Administration and Agent Orange:
A Dilemma of Causation
Glen \.Jood
Independent Research
Professor Benson
December 6, 1985
I. INTRODUCTION
In the early morning hours of January 7, 1962, a directive
reached the commanding officer of a six-plane wing of American
Air Force C-123s at Clark Air Force Base in the
Phillipines.
1
The directive ordered the planes to proceed
immediately to South Vietnam to commence defoliation missions
in that country. The aircraft, converted cargo planes, were
specially outfitted for the aerial spraying of chemicals, and
their arrival in South Vietnam on the afternoon of January 7,
1962, triggered a controversy that haunts the veterans of the
Vietnam War and the American Government to the present day. The
original mission of the planes was to defoliate the jungles of
South Vietnam in order to deny cover and food supplies to the
Viet Cong insurgents. Operation Ranch Hand had begun. Approval
of the spraying program came from the highest levels of the
American government: Operation Ranch Hand was approved by both
President John Kennedy and then Secretary of Defense Robert S.
McNamara. 2 The government would come to regret the decision
to defoliate South Vietnam just as the American people would
come to regret America's involvement in the war itself.
Between January 7, 1962, and February 1971, Operation
Ranch Hand had sprayed approximately 19 million gallons of
3
various herbicides over the jungles of Southeast Asia.
The
•
herbicide included the notor1ous
It
agen t orange.
It
By the time
the operation was terminated, the planes had sprayed over five
2
million acres of jungle and farmlands in South Vietnam and its
neighboring countries.
4
Operation Ranch Hand used ten major
herbicides, eight of which contained the plant hormone
2,4,5-T.
5
The compound, 2,4,5-T, contained as an impurity
tetrachlorodibenzo-para-dioxin (more commonly referred to as
6
dioxin or TCDD).
2,4,5-T remains in the soil for only a
matter of weeks and had been used extensively in the United
States along highways, railroad tacks, and powerline rights of
way to control unwanted brush and vegetation. 7 High doses
.
of 2,4,5-T are necessary to produce any overt effects in man,
but considerable concern has arisen in the scientific community
about the effects of the contaminant dioxin in man and other
animals. 8 In the process of defoliating the jungles,
Operation Ranch Hand dumped an unascertainable amount of
herbicides containing these chemicals on American troops
stationed in South Vietnam. None of the chemicals used were new
or experimental, and no one dreamed that the effects of the
chemicals could extend any farther than the jungle itself.
This paper will discuss the effects of herbicide spraying
during the Vietnam War on veterans, and the Veterans
Administration's response to claims for benefits for
health-related conditions the veterans believe to be directly
related to the defoliation operations in Vietnam. More
specifically, this paper will discuss the nature of the
()f)~~
3
controversy and then superimpose the administrative procedures
of the V.A. onto the agent orange issue to determine why the
claims are not being allowed. Next, the paper will discuss the
legislative response to the controversy and its effects on the
procedures the V.A.
uses to grant or deny benefits to the
Vietnam veterans who claim eligibility based on exposure to
herbicides. Finally, the paper will offer some suggestions that
could help alleviate the controversy.
Due to the controversial nature of the agent orange issue,
it seems proper at this point to comment on the nature of the
analysis I undertake here. First, the government should
shoulder the responsibility for compensating the veterans who
were injured by their service -- in Vietnam or elsewhere.
Congress recognizes the government's responsibility to veterans
through the enactment of Title 38 of the United States Code.
Second,
I begin my analysis with the presumption that the
government acts in good faith in dealing with the agent orange
problem and other issues. I assume that the V.A. generally acts
within its statutory framework and will grant benefits if the
veteran can bring himself within the criteria necessary for
eligibility. In short, the analysis is means to be neutral and
disinterested.
{)fJ~
4
II. Effects of Dioxin Contamination
As previously noted, the contaminant dioxin is a
by-product formed during the manufacturing of
phenoxy-herbicides and chlorophenols. Dioxin levels vary
according to the particular chemical company whose products
were used. The dioxin levels ranged from a high of 47 parts per
million to a low of 1 part per mi.4ion. 9 Eight of the ten
chemicals used to defoliate the jungles of South Vietnam
contained the plant hormone 2,4,5-T, whose contaminant, dioxin,
is believed to be responsible for a wide variety of
ailments.
10
The major illnesses for which the veterans are
claiming service-connection are chloracne, porphyria tarda
cutanea, and soft tissue sarcoma. The veterans also claim that
their exposure to agent orange caused birth defects to the
veterans' children.
11
To date, only two cases of porphyria
tarda cutanea and thirteen cases of chlorane have been allowed
service-connection.
12
Service-connected status as not been
allowed for any case of soft tissue sarcoma or for any claims
of birth defects in the children of Vietnam veterans.
13
Why
has the Veterans Administration been so reluctant to grant
service-connection for these illnesses? The answer lies in the
complex nature of the problem. The veterans must first hurdle
the issue of causation. Does dioxin contamination cause
chloracne, PCT, and soft tissue sarcoma? If so, was the veteran
00?.95
5
exposed to the chemical coincidentally to his tour of service?
Although many studies have been conducted and many more
are in progress, the scientific community has failed to reach a
consensus regarding the long range effects of dioxin
contamination in man. Dioxin does not effect any two animal
.
.
species
1n
t h e same way, 14 nor does it affect any two human
beings in the same way.
15
For example, in a study of the
effects of dioxin on mice, one species of mice was particularly
susceptible to cancer when exposed to the chemical. The "naked"
species of laboratory mice contracted cancer after being
exposed to dioxin,
but another study using different strain of
mice concluded that the chemical actually inhibited the growth
of tumors. 16 High doses of .1 parts per mission of 2,4,5-T
were given to several species of animals, but only one species,
laboratory mice, showed an incidence of birth defects. However,
embryotoxicity developed in the mice, rats, hamsters, sheep,
monkeys, and rabbits that were given the chemical. In the
Rhesus monkey, no toxicity and no abortions were observed when
the pregnant mothers were given a dose of .1 microgram per
kilogram of body weight, but when the dose was increased to 5
micrograms per kilogram of body weight, three out of four
mothers spontaneously aborted and one of the mothers
died. 17 Most of the animal studies support the proposition
that the marked variation effect of dioxin contamination
{)f)?Qf)
6
between species makes the animal experience impossible to
translate to man;
thus, to determine the effects of dioxin upon
human beings, scientists must rely upon statistical studies of
these already known to have been exposed. 18
Virtually all of the medical authorities agree that
chloracne is the clinical marker for dioxin exposure in humans,
but all human beings exposed to dioxin do not necessarily
contract the skin condition. In Seveso, Italy, where an
industrial accident contaminated a whole valley and exposed
thousands to dioxins, most of those contaminated did not
contract chloracne. Most of the chloracne cases which did
surface occurred in young children within a few weeks of their
exposure, although two cases appeared approximately eight
months later. 19 Chloracne manifests itself within two to
four weeks in most cases and usually accompanies porphyria
tarda cutanea if the liver disease also afflicts the
.
.
V1Ct1m.
20
Porphyria tarda cutanea is a liver disease which is the
most common of a group of rare diseases collectively called
porphyria. 21 The disease causes compounds which have a red
or purple color to be present in the urine. Often accompanying
the disease are dramatic skin changes induced by exposure to
sunlight. PCT usually appears in older persons while other
porphyrias usually appear earlier in life. Body and head hair
(}()~~
7
loss may develop in areas of scarring, and there may be loss of
nails from the fingers and toes. The skin becomes increasingly
fragile,
darkens, and thickens due to calcium deposits in the
scarred areas. Chloracne, a skin disease characterized by
inflamed, pus-filled sores, usually accompanies the other
symptoms of PCT induced by toxic chemicals. About 70% of the
victims of PCT have alcoholic liver disease, but only about 1%
of those with alcoholic liver disease develop PCT. 22
Dioxin, 2,4-D, and 2,4,5-T have all been associated with the
d eve 1 opment o f
·
PeT 1n
man.
three of these compounds.
23
24
A gent 0 range conta1ne
.
d a 11
PCT, caused by toxic chemicals,
usually begins to appear almost immediately upon exposure to
the chemicals, but the studies on which this conclusion is
based relate to industrial workers who were exposed to very
high 1 eve 1 s o f
· 1 s.
t h e c h em1ca
25
Th e symptoms usua 11 y
subside within two years of the exposure. Essentially, the
experts agree that there is no latency period for PCT and that
anyone exposed to dioxin, 2,4-D, or 2,4,5-T in Vietnam would
have shown symptoms of the disease long before now.
26
Even
if those persons had clinical manifestations of the disease in
Vietnam, most of the victims' symptoms would have disappeared
long ago since the chemicals were last used by the governMent
in 1971. However, chloracne may persist up to 30 years after
exposure.
27
OO~R
8
The veterans who were exposed to agent orange also believe
that the chemicals cause a malignancy called soft tissue
sarcoma. Soft tissue sarcomas usually arise in muscle, fat,
fibrous connective tissues,
and
but sometimes occur in blood
vessels and nerves that surround these tissues. The tumors grow
into poorly circumscribed massed that destroy the surrounding
tissues. Most of the tumors are painless, which delays
diagnosis and treatment.
28
The veterans have some
scientific support for their belief that dioxin contamination
causes STS. The first study to associate soft tissue sarcoma
(STS) with phenoxy herbicides was the study done by Dr. Leonard
Hardell in Sweden.
29
The study began when Dr. Bardell
admitted three patients into the hospital who were suffering
from STS and who had a history of exposure to phenoxy
herbicides. As a result of further investigation, Hardell found
seven more patients who had STS and a history of exposure to
the herbicides ten to twenty years earlier. Hardell then began
a case control study to determine the relationship between
herbicide exposure and incidences of STS. Hardell found 21
living male patients with STS and 31 dead male patients that
had the cancerous tumor. Hardell then matched the "cases" with
the "control" subjects by age, place of residence, and date of
death (for the deceased). The "controls" were obtained from the
Swedish National Population Registry. Each living man and each
00~9
dead man in the study had four controls. The controls and the
cases were sent a questionnaire which requested information
about exposure to organic solvents, smoking habits, the use of
plastics, and to phenoxy herbicides and chlorophenols. The next
of kin of the deceased persons answered the questionnaires.
Employers were consulted to verify the accuracy of the answers.
Thirty-six percent of the patients and nine percent of the
controls had a history of exposure to phenoxy herbicides and/or
chlorophenols. The relative risk of developing STS was 5.7 as
compared with the mean figure of 1 for the population in
general. The relative risk to those who were exposed to phenoxy
herbicides alone was 5.3. The risk of developing STS increases
over five-fold for those who have been exposed to phenoxy
herbicides. The study definitely showed an increased risk for
those exposed to the chemicals contained in agent orange.
Hardell undertook a second study in southern Sweden which
tends to corroborate the results of the first study. The study
employed the same methodology and studied the possible effects
of chemical exposure among forestry workers. Among the 110
cases, 22.7% had been exposed to phenoxyherbicides or
chlorophenols with an exposure rate of 5.9% among the controls.
The relative risk from exposure to phenoxy herbicides was
calculated to be 6.8% and the relative risk for exposure to
chlorophenols was 3.3 The authors of the study, Drs. Hardell
00301)
10
and Axelson, concluded that exposure to phenoxy herbicides "may
constitute a risk factor in the development of soft tissue
sarcomas."
30
Bardell conducted yet another study in northern Sweden to
determine the possible connection between chemical exposure and
the development of STS. All men admitted to the oncology
department of a certain hospital for treatment of malignant
histiocytic lymphoma during the first nine months of 1978 were
questioned about their occupations and any possible exposure to
phenoxy herbicides or chlorophenols. The investigations led to
a third case-control study. The study compared 169 cases with
338 controls. Again, questionnaires and interview were used to
determine exposure to phenoxy herbicides, chlorophenols,
organic solvents, medications, occupations, hobbies, and
smoking. This study, however, dealt with Hodgkins disease and
non-Hodgkins type lymphomas. The exposure data was divided into
high and low exposure groups. Low grade exposure was considered
to be exposure for less than a week or intermittent exposure
totaling less than a month. The researchers further divided the
study by the length of time which had elapsed since the
exposure period: more than five years or less than five years.
The cases were exposed to the chemicals at a rate of 36.1%
while the controls only had an exposure rate of 9.6%. Phenoxy
herbicides resulted in a rel~tive risk factor of 4.8 with the
00301_
11
relative risk increasing for exposure over"90 days in
.
31
d urat1on.
There is some support for the Swedish conclusion that
exposure to phenoxyherbicides definitely constitutes a risk
factor in the development of STS, but there are also studies
that do not support the proposition. Among these studies which
do not support the conclusion is the followup study of the
persons who were most heavily exposed to the chemicals in South
Vietnam: the officers and enlisted men of Operation Ranch
Hand.
32
In fact,
although the men were often soaked with
the chemicals during the operations and were in constant
contact with them, followup studies indicate that the Ranch
Hand personnel are actually living longer and healthier lives
than the population in general. Among Ranch Banders, there have
been no cases of STS, no cases of chloracne, and no cases of
PCT.
The Ranch Hand study involved 5 former servicemen in the
comparison group for every former Ranch Hand member. The number
of Ranch Hand personnel involved was approximately 97% of the
men who actually flew the missions, serviced the planes, and
handled the chemicals. As of September 1, 1982, there were 67
deaths of former Ranch Hand personnel: 22 killed in action,
accidental deaths,
neoplasms,
1 homicide,
3 deaths from malignant
1 death from endocrine, nutritional and immunity
18
12
disorder, 14 deaths from diseases of the circulatory system,
and 5 deaths from diseases of the digestive system. Among the
comparison group members during the same period, there were 91
accidental deaths,
neoplasms,
12 suicides, 3 homicides, 34 malignant
2 neoplasms of uncertain behavior, 1 endocrine,
nutritional, or immunity disorder death, 68 deaths from
circulatory disease, 11 deaths from diseases of the digestive
system, 3 deaths from infectious and parasitic diseases, 2
deaths from genito-urinary system diseases, and 2 deaths from
"ill-defined" conditions. Both the Ranch Hand personnel and the
comparison group servicemen had a mortality rate significantly
less than the average white male population in 1978. This has
been attributed to the "healthy worker effect" since the
servicemen were required to be in good health before they were
inducted into the armed forces.
The scientific studies that have been conducted during the
past few years have not come up with any consistent findings
that lead to the conclusion that dioxin contamination causes
soft-tissue sarcoma. 33 The birth defects studies have also
been inconclusive. 34 But experts on dioxin contamination
and studies on the subject do document the fact that porphyria
tarda cutanea and chloracne usually appear within a few weeks
. .
b e 1.1eve
of exposure to dioxin. 35 Most me d.1ca 1 aut h or1t1es
that if a veteran were exposed to dioxin in Vietnam at levels
()():lll:l
13
sufficient to cause any of the above listed illnesses, the
veteran would have developed chloracne within a few weeks of
the exposure because chloracne is the clinical marker for
dioxin exposure. And, even if the veteran developed chloracne
and PCT during his service in Vietnam, the symptoms in most
cases would have long since disappeared. In short, most studies
which conclude that dioxin contamination causes certain
physical ailments within a specified time frame can be
countered by referring to the conclusions of conflicting
studies.
III. THE VETERANS ADMINISTRATION: POLICIES, PROCEDURES AND
CRITERIA IN ADJUDICATING CLAIMS FOR BENEFITS
A. Criteria and Proof
Congress especially created the Veterans Administration as
an independent agency to administer the veterans benefit
laws. 36 Congress delegates to the Administrator the power
to promulgate regulations and policies in order to institute
the prograrns. 37 The Administrator further delegates
authority to the Chief Benefits Director and supervisory
personnel to make findings and decisions under all the
38 Th Ad . .
·
applicable laws and regulat1ons.
e
m1n1strator
appoints the members of the Board of Veterans' Appeals and the
field officers subject to the approval of the President.
39
14
The Board of Veterans Appeal and the adjudicating officers must
conform their decisions to the policies of the
Administrator.
40
The Administrator must in turn conform the
agency-wide policies to the laws contained in title 38. 41
When a Veteran suffers from a compensable mental or
physical ailment arising out of his tour of service, he must
file a claim with the Veterans Administration. This is the only
remedy available. The Federal Tort Claims Act does not waive
the sovereign immunity of the United States government if the
injuries are sustained while the serviceman is on active
duty.
42
If the injury occurs co-incidentally to his
military service, the veteran has no cause of action in a court
of law against the United States.
Essentially, the claimant must prove that his injuries
occurred "in the line of duty" in order to be eligible for
benefits. 43 In other words,
the claimant must show that his
injuries are service-connecte d . 44
involves many factors,
s erv1ce
.
.
connection
but basically the proof must show that
the injury was incurred "co-incidentally to service in the
armed forces." 45 The V.A. must assist the claimant to
develop the facts necessary to prove his claim for
benefits. 46 This duty goes beyond the mere furnishing and
filing of the necessary forms.
47
The V.A. must assist the
veteran to assemble the veteran's service records, medical
15
records, provide a physical examination if needed, 48 and
gather all other information pertinent to the adjudication of
the claim.
49
At the outset, the veteran must show that he meets the
active duty requirements in order to be eligible for benefits.
The claimant must either have completed his entire tour of
service, must have been discharged for medical reasons, or he
must bring himself within some other "early out" provision in
.
. 1 ement ex1sts
.
or d er to qua 1 1· f y. SO B as1s
ent1t
1. f
t h e injury
or illness that caused the claimant's disability or death (in
the case of a survivor applying for benefits) was incurred "in
the line of duty"
51
and not the result of the veteran's own
misconduct. 52 Misconduct which makes the claimant's injury
non-compensable includes:
53
1) being absent without leave;
2) serving time in a civilian or military penal
institution; or
3) willful misconduct while the claimant was on duty
(such as driving while intoxicated or taking an
overdose of drugs).
If the injury occurs while the veteran is involved in any of
these activities, he is not eligible for any benefits arising
out of the incident.
The claimant must show that his injury or illness is
service-connected to be eligible for benefits. Although the
()O:lOfi
16
V.A. must assist the claimant in developing the proof necessary
to establish service-connection, the burden of proof rests with
54
t h e ve t eran.
s erv1ce-connection
.
involves many factors,
but essentially amounts to affirmative evidentiary facts
necessary to prove that the injury incurred was coincidental to
the claimant's service in the armed forces. 55 The
adjudicating officer will consider the claimant's medical
history, the history of the military unit to which he was
assigned,
the circumstances of the claimant's service, and
pertinent medical ad lay witness testimony when awarding or
56
.
.
.
d eny1ng serv1ce-connect1on.
The statutes and regulations do not make clear exactly
what quantum of proof is necessary to establish service
connection,
but the veteran probably must meet a higher burden
than that involved in ordinary civil cases.
57
The
regulations provide that when a reasonable doubt exists after
consideration of all the pertinent facts,
the claim for
benefits will be resolved in favor of the veteran.
58
A
reasonable doubt exists when a fact neither proves nor
disproves service-connection, yet the claim is within the
"range of probability as distinguished from pure speculation or
remote possibility.•• 59 Does this mean that the veteran must
only show that it is more likely than not that the injury is
service-connected,
that the injury was probably
17
service-connected, or that the injury was undoubtedly
service-connected? The regulations are not entirely clear on
the issue. The directive that decisions are to be made upon
consideration of the entire evidentiary record "with due
consideration of the Veterans Administration to administer the
law under a broad and liberal interpretation consistent with
the facts in each individual case'' (emphasis added)
60
further complicates the issue. The regulations use language
such as "reasonable doubt" as well as language which calls for
a broad and liberal interpretation which, when read together,
provides little guidance. The quantum of proof necessary to
establish a valid claim probably lies somewhere between the
"preponderance of the evidence" standard applicable in most
civil cases and the "clear and convincing evidence" standard
which applies in civil cases that involve matters of public
policy. However the quantum of proof is classified clearly the
adjudicating officer must consider the entire evidentiary
61
When there
record when granting or denying a claim.
exists any reasonable probability of entitlement, the claim
must be allowed.
62
The claimant may establish service connection in several
ways,
but the means vary according to the specific claim being
filed. The claimant may establish direct service connection by
showing that the illness or injury on which the claim is based
18
manifested itself during the veteran's tour of service. For
example, if the injury which caused the claimant's disability
occurred while he was in the service, such as a combat wound or
a documented accident, or if he can show that he contracted a
disease such as malaria during his tour of duty, he can
63 If
. h d.1rect serv1ce-connect1on.
.
·
es t a bl 1s
the claimant can
show that he suffers from some chronic disease that he
contracted during his period of service, he can also show
direct service-connection. Nevertheless, the disease must have
manifested itself within one year of the veteran's separation
date or he must have been diagnosed as having the disease
h.1s t1me
.
.
.
64
.
1n
t h e serv1ce.
d ur1ng
The regulations and statutes contain many presumptions
which aid the veteran in proving the requisite
service-connection by lowering his burden of proof.
First,
65
the veteran is presumed to have been in sound condition
when he entered the service by virtue of the physical
.
66 A
examination conducted at the entrance stat1on.
ny
illnesses or injuries that the claimant incurred during his
.
d 67
period of service are presumed to b e serv1ce-connecte .
Some chronic illnesses that manifest themselves within one year
of separation from the service are generally presumed to be
service-connected,
but the presumptive period may vary
according to the specific condition of which the veteran
{)():lO!-}
19
.
68 Hansen I s d 1sease
.
( leprosy), for example, is
comp 1 a1ns.
.
presumptively service-connected if it manifests itself within
three years. Multiple sclerosis is presumptively
service-connected if it manifests itself within seven years of
Lhe end of the veteran's tour of service. The disease need not
be diagnosed during the presumptive period; the claimant need
only have shown some of the characteristic symptoms of the
disease.
69
The chronic disease presumption applies only to
those diseases specifically enumerated in the
70 Th e presumptions are not conclusive, but
.
regu 1 at1ons.
rather, the statute expressly makes them rebuttable. 71
Closely related to the presumptions of
service-connectedness are the provisions that relate to
pre-existing conditions and the secondary results of bona fide
service-connected conditions. When a veteran claims eligibility
for benefits based upn the aggravation of a pre-service
condition,
the V.A. will deem him eligible for benefits unless
the increased disability results from the natural progression
of the condition.
72
If a secondary condition arises out of
a service-connected injury or illness, the V.A. will deem the
secondary condition part of the original condition for which
service-connection has been established.
73
Furthermore, if
a veteran complains of two or more service-connected
disabilities which alone are not disablinR to a compensable
OO:l10
20
degree, the V.A. will allow benefits if the conditions when
considered together add up to the magic number of ten percent
disability and if the conditions interfere with the veteran's
emp 1 oya b 1'l'1ty. 74
The V.A. must consider all the facts and circumstances
when adjudicating claims for benefits. The V.A. must consider
the veteran's place of service, the circumstances of the
veteran's service, the veteran's medical and service records,
and expert and lay witness testimony which relate to the
.
gran t 1ng
of
75
.
. .
.
serv1ce
connecte d status f or t h e 1nJur1es.
The nature of the inquiry is necessarily broad, and the
criteria apply both to the initial adjudication and to
severance of service connection.
B. ADJUDICATION AND APPEAL
Proceedings before the V.A. are ex parte in nature.
76
The statutory and administrative scheme does not contemplate
adversarial proceedings which pit the claimant against the
government. The V.A. must aid the claimant in developing the
facts necessary to adjudicate his claim. The veteran may,
however, elect to have an approved service organization or an
agent represent him before the V.A. if the representative
certifies that no fee will be charged for the service.
attorney may charge a de minimis ten dollar fee for
()():111.
78
An
21
representing the claimant.
The filing of a formal or informal claim initiates V.A.
proceedings.
79
A formal claim is one in which the veteran
files the necessary forms with the V.A. regional office. An
informal claim is any communication that indicates the
veteran's intention to apply for benefits, whether made by the
veteran, his personal representative, a member of Congress, or
by the claimant's next friend. 80 Upon receipt of an
informal claim, the V.A. forwards the necessary forms to the
veteran. The date on which the V.A. first received an informal
claim is the effective date of the claim, provided the claimant
returns the forms within one year from the date they were sent
to the claimant.
81 Thus the claimant will receive benefits,
if at all, from the date he first contacted the V.A.
82
The
V.A. Regional Office where the claim is filed handles the
initial adjudication. 83 The decision of the adjudicating
officer becomes the agency's final decision unless the claimant
files an appeal within one year of notification of an adverse
decision. 84 The proceedings may be formal or informal, but
the claimant retains the right to a hearing on any issue
relevant to the adjudication of his claim.
85
Most claims
for benefits take only two or three hours for initial
.
86
process1ng.
If the claimant desires to appeal a decision adverse to
his clain,
the procedures are considerable more elaborate. The
22
clai~ant must file
a notice of disagreenent within one year of
an adverse decision regarding his clain. 87 This is the
first step in the appeal process. After the notice of
disagreement has been filed,
the Case.
88
the V.A. prepares a Statement of
The Statement of the Case consists of a summary
of the evidence with which the claimant disagrees, a discussion
of the pertinent law and regulations, and the reason for the
. .
d ec1s1on
ren d ere d •
89 f
lowever,
disagreement is timely filed,
when a notice of a
the original agency has an
opportunity to develop and review the claim anew. 90 After
the field office completes its review of the case, the veteran
must file a substantive appeal.
91
The substantive appeal
should contain specific arguments which point out mistakes of
fact or law contained within the Statement of the Case.
92
The substantive appeal must be filed within 60 days of the
mailing of the Statement of the Case. If the claimant fails to
respond to the Statement of the Case
the agency which originally adjudicated the claim will close
93 The
.
t o th
the appeal wit h out f·urt h er no t 1ce
· e cla1"mant.
appeal may be re-opened, if the claimant responds to the
. d•
statement of the case within the one-year per1o
94 Th
e
Veteran must file the notice of disagreement and the
substantive appeal at the V.A. office from which he or she
received notice of the adverse decision.
95
Normally, the
notice of the decision originates from the V.A. Regional
()()!l1 :l
23
Office where the claim is filed handles the initial
.
. d"1cat1on.
a d JU
83 'l'h d
e
ecision of the adjudicating officer
becomes the agency's final decision unless the claimant files
an appeal within one year of an adverse decision. 84 The
proceedings may be formal or informal, but the claimant retains
the right to a hearing on any issue relevant to the
adjudication of his claim.
85
Most claims for benefits take
. . . 1 process1ng.
.
86
Only t w0 or th ree h ours f or 1n1t1a
If the claimant desires to appeal a decision adverse to
his claim, the procedures are considerable more elaborate. The
claimant must file a notice of disagreement within one year of
8 7 'fh .
. .
.
h 1s
.
.
.
an a d verse d ec1s1on
regar d 1ng
c 1 a1m.
1s 1s
t he
first step in the appeal process. After the notice of
disagreement has been filed,
the V.A. prepares a Statement of
the Case. 88 The Statement of the Case consists of a summary
of the evidence with which the claimant disagrees, a discussion
of the pertinent law and regulations, and the reason for the
decision rendered. 89 However, when a notice of a
disagreement is timely filed,
the original agency has an
opportunity to develop and review the claim anew.
90
the field office completes its review of the case,
must file a substantive appeal.
91
After
the veteran
The substantive appeal
should contain specific arguments which point out mistakes of
92
fact or law contained within the Statement of the Case.
(}():l14
24
The substantive appeal must be filed within 60 days of the
mailing of the Statement of the Case. If the claimant fails to
respond to the S.O.C. the agency which originally adjudicated
the claim will close the appeal without further notice to the
.
c 1 a1mant.
93 'fh
e appea 1 may b e re-opened, if the claimant
responds to the statement of the case within the one-year
period.
94
The Veteran must file the notice of disagreement
and the substantive appeal at the V.A. office from which he or
95 Norma 11 y,
.
d no t"1ce o f th e a d verse d ec1s1on.
· ·
s h e rece1ve
the notice of the decision originates from the V.A. Regional
Office where the claim is adjudicated initially.
96
The
filing of a substantive appeal is the last step the veteran
need take to perfect his appeal.
97
The appeal is heard by a section of the Board of Veterans
appeals. 98 A unanimous decision of the three-member section
is fina1. 99 If the section members' votes are split, the
Chairman of the Board can either concur with the majority or
the decision may be referred to two or QOre of the three-nan
100 I
.
1 d ec1s1on.
· ·
panels who render the f 1na
n th e appe 11 a t e
process, as in the initial adjudication, the clainant has a
101
right to a hearing on any of the issues being appealed.
Here again,
the proceedings are non-adversarial in
nature, 102 The appellant may question all witnesses who
appear before the board,
.
h
103
but may not cross-exam1ne t em.
25
The appeal is heard either by a traveling section of the board
of veterans appeals or a section of the board sitting in
Washington D.c.
104
ionizing radiation,
If the decision involves agent orange or
the appeal must be signed by the Boar
embers who specialize in these complex issues.lOS
During the course of the appeal, the Board is not limited
to the evidence presented at the initial adjudication, but nay
consider any new evidence the appellant presents, expert
medical testimony heard and the testimony of any witnesses that
Iilay be called • 106 The government may not pay· any expenses
the claimant may incur in attending a hearing, including travel
expenses and counsel fees.
107
The claimant must prove that his illness is
service-connected before he is eligible for benefits. There is
no conclusive evidence that a veteran's exposure to dioxin in
Vietnam could cause systems of that exposure to appear several
years later. 108 The burden of proof is on the claimant to
prove service-connection, not on the Veteran's AdQinistration
to disprove it. The veteran may point to the fact that the
chemicals were widely used in the United States before they
were used in Vietnam; thus the statistical studies are fatally
flawed.
However, even this observation would tend to cast doubt
on service-connection, for the veteran could theoretically have
been exposed to the chemicals almost anywhere. The claimant
26
must show that his injury or illness occurred coincidentally to
his service in Vietnam. There is no reasonable doubt to be
found in the causation issue given the present state of
knowledge about the effects of dioxin on man. Unless the
claimant can show that his service caused or at least
coritributed to the veteran's physical ailment, he cannot make
it past the initial adjudication. Any appeal would be equally
fruitless.
IV. LEGISLATIVE RESPONSE
The House of Representatives and the Senate have been
holding hearings for at least five years on the subject of
agent orange. The hearings will surely continue as the
scientific studies unearth more facts about the effects of
dioxin contamination on man. Three separate bills were
introduced in the Senate in 1983
109
which would eventually
emerge as part of the Veterans' Dioxin and Radiation Exposure
Compensation Act of 19U4.
110
Senate bill 374 would have
provided a new addition to 38 U.S.C.
312. The new subsection
would have allowed compensation for herbicide related diseases
that caused a disability of 20% or more. The bill would have
directed the Administrator of the V.A. to determine which
diseases could be caused by exposure to phenoxy herbicides and
the conditions of service that would be necessary that would be
()(}:l1 ~·
27
necessary that would be sufficient to establish exposure to the
chemicals. The bill also provided for the establishment of a
presumption of exposure to the herbicides if there is a
reasonable possibility that the veteran was exposed to the
chemicals.
Senate bill 786 and its counterpart in the House of
Representatives, House bill 1961, would have established a
presumption of service connection for chloracne, PCT, and soft
tissue sarcoma. The bills would have required that a
comprehensive analysis of the studies relating to dioxin
exposure be undertaken by the V.A. Both the House and Senate
versions of the bill contained a reference to birth defects
which the exposed veterans suspect to be a result of herbicide
exposure. Senate bill 991 would have required that the
Administrator establish guidelines, standards, and criteria for
exposure to dioxin in Vietnam in accordance with the formal
rulemaking procedures enumerated in the Administrative
Procedural Act together with a provision for limited judicial
review of the rulemaking procedures.
The bills were attacked from all sides of the controversy
in the committee hearings. The American Legion, speaking
through Mr. John F. Sommer, Jr., objected to the provision in
the legislation that vests discretion in the V.A. to establish
guidelines, criteria, and rules for awarding service connection
28
to claims based on herbicide exposure.
111
.
The Amer1can
Legion criticized the notion of vesting such broad discretion
in the agency that has had "an inflexible attitude on the
issue'' in the past. Indeed, Mr. Sommers cited an instance where
the V.A. had cited a review of the Swedish studies for the
proposition that the association between dioxin exposure and
STS is inconclusive. The V.A. cited the paper in its statement
before the Subcommittee on Compensation, Pension and Insurance
of the House Committee on Veterans' Affairs, but failed to
mention the fact that the paper states that the Swedish studies
were "credible if not conclusive" (emphasis added). The V.A. on
the other hand, opposed the same provision in the bill on the
basis that the directive was unnecessary.
112
The necessary
implication of the V.A.'s position is that the V.A. has been
basing its adjudications on credible medical opinions, but the
agency has decided that the Swedish studies are not credible.
The V.A. 's position on the agent orange issue and the proposed
legislation was that the current statutory scheme is
sufficient. According to the V.A., when "scientific
investigation results in new findings regarding the cause or a
contributing cause of a particular disability,
[the] current
authorities enable [the V.A.] to grant service
.
"113 G.1ven t h e con fl"1ct1ng
.
. 1 og1ca
.
1 s t u d"1es,
connect1on.
et1o
there may be some justification for the V.A.'s reluctance.
29
.
However, if the V.A. were to read the etiological studies in
light of the remedial purpose f the veteran's legislation, the
studies that currently support the decision not to grant
service connection could be used as authority to grant service
connection.
Senate bill 786 would have established a presumption of
service connection for chloracne, PCT, and STS. The V.A.
opposed the presumptions on two grounds. 114 With respect to
PCT and chloracne, the V.A. believed the statutory scheme
adequate to deal with the issue. The V.A. reasoned that since
"reputable studies have concluded that dioxin exposure may
result within a relatively short period, in chloracne" and that
since "PCT resulting from exposure also appears within a few
weeks" that there was no need for the establishment of a
.
115 Lr·
presumption rc 1 ating to t h ese d 1seases.
"1t h respect to
STS, however, the V.A. pointed to the fact that all soft tissue
sarcomas do not have the same cause. In effect, the position of
the Veterans' Administration is that no benefits should be
allowed until the scientific community unearths the origin of
soft tissue sarcoma. The overriding concern of the V.A. seems
to be the Administration's position in government as a
116
Dorot h y L • S t ar b uc k ,
"guardian of the public trust. "
1\1 s.
Chief Benefits Director of the Veterans' Administration states
explicitly that the V.A. must attune its conpensation prograo
()():120
30
to "justifiable conclusions about the connection between Agent
orange exposure and disorders possibly arising from that
exposure."
117
Of course there must be scientific evidence
to support the awarding of benefits, but the V.A. does not read
the scientific evidence currently available in light of the
purpose of the Administration itself: to provide compensation
for injuries coincident to service in the armed forces where
there is no other remedy.
118
Further, Congress has set up
an administrative scheme that is "non-adversary" in nature, but
the chief stumbling block between the veteran and the gaining
of service connected status seems to be the concern of the V.A.
for the public fisc.
119
The V.A. could read the Swedish
studies and those that support the connection to soft tissue
sarcoma in the light most favorable to the veteran. Indeed, Hs.
Starbuck admits that "the vital question is, therefore, the
. .
[ .
weight to be given the aut h or1t1es
c1te d] • ,120
There is support for the V.A. position regarding the
presumption which relates to PCT and chloracne. There exists
evidence that chloracne and PCT usually occur within a few
weeks of exposure to herbicides or other chemicals which
contain dioxin. There exists also evidence which tends to
support the proposition that PCT, chloracne, and STS occur if
at all only in persons who have been heavily exposed to the
.
1 s. 1 2 1 II owever, there exists little evidence
chem1ca
()0:l?1
31
regarding the exposure levels among servicemen in Vietnam.
Although Operation Ranch Hand sprayed the Jungles of Southeast
asia at spray rate of only three gallons per acre 122 using
chemical mixtures that contained dioxin concentrated at
anywhere from 1 part per million to 47 parts per
m1"11"1on, 123 t h e exposure data could not possible account
for the future effects on the servicemen in the field who ate
their food and slept in contaminated areas. No statistics will
ever be available regarding the dose of dioxin the servicemen
ingested when they drank contaminated water in Sough Vietnaw.
There is no way to calculate the actual exposure to dioxin
among the ground troops that spent days or weeks in the field
. h out san1tary
.
.
124
w1t
or s h ower f ac1. 1.1t1es.
The V.A. also opposed Senate bill 991 which would have
required the V.A. 's ruled relating to herbicide exposure be
promulgated in accordance with the formal rulemaking
requirements of the Administrative Procedure Act. Additionally,
the bill would have allowed limited judicial review of the
rules thus promulgated. To require that formal rulernaking
proceedings be instituted would probably result in wasted
administrative resources as the V.A. contends, but Senate bill
991 illustrates,
the position of the V.A. with respect to the
judiciary. The decisions of the Veteran's Administration
regarding its rules, procedures, and the final decisions of the
OO:l?~
Administrator regarding specific claims are absolutely
unreviewable by the judicial branch of the federal
government.
125
The Veterans' Administration currently
operates without any judicial supervision at all. Were Congress
to give the courts jurisdiction to review any action by the
V.A., the agency's power would inevitably erode.
The Veterans' Dioxin and Radiation Exposure Compensation
Act of 1984 was passed in substantially altered form. The Act
provides in pertinent part:
1) that the Veterans' Administration must promulgate
regulations that establish guidelines, standards,
and criteria for the resot~~ion of claims based on
exposure to agent orange;
.
2) the rules promulgated must be
bar2~
on sound
scientific and medical evidence;
3) the act provides for interim benefits for
servicemen ~go suffer from PCT or
1
chloracne;
and
4) that the V.A. may not require the claimant to
produce evidence to substantiate his claim if his
service and medi§Bl records are not inconsistent
with the claim.
Congress deleted the provisions which would have given a
presumption of service connection for soft tissue sarcoma and
PCT entirely. The act does, however, officially recognize the
association of herbicide exposure and the incidence of soft
tissue sarcoma and PCT. 131 The act effectively orders the
V.A. to continue its investigation into the agent orange issue
33
and to provide benefits regarding chloracne, porphyria tarda
cutanea, and soft tissue sarcoma when the scientific community
provides more information regarding the causal connection
between the disorders and service in Vietnam.
The Vietnaw's Dioxin and Radiation Exposure Cowpensation
Act also has the effect of altering some of the procedures
involved in processing a claim based upon agent orange
exposure. The V.A. cannot require the veteran to prove up his
claim for interim or permanent benefits if the claimant's
records are not inconsistent with exposure. With respect to
interim benefits, the serviceman need only show service in
Vietnam and the actual disorder he suffers. There is no need to
show service connection at least until the interim benefits
section of the act is repealed.
Perhaps the most important provision in the act is the
provision which requires the V.A. to promulgate rules based
upon sound scientific evidence. The V.A. could, were it so
inclined, read the provision as a grant of authority to allow
benefits and base the decisions on those studies which support
the premise that dioxin exposure at least constitutes a risk
factor in the development o f
so f t
.
t1ssue
sarcomas. 131 1'h.l·s
provision of the act when read together with the provisions of
the regulations that grant benefits when a reasonable doubt
exists 132 would justify awarding benefits to those veterans
()f):l~~
34
who suffer from STS. The V.A. has not done so. The Veterans'
Administration has instead concluded that dioxin has not been
shown to be a human carcinogen; thus there is no scientific
basis for a causal association between dioxin exposure and soft
.
t1ssue
sarcomas. 133 'fh e
v .A.
concedes that service
connection may still be established if the condition occurs
within he normal presumptive period of one year. 134 The net
effect of the V.A. 's position is to grant service connection
for STS which with the exception of career servicemen, could
not possibly have been caused by the veteran's service. The
sound medical and scientific evidence to which the
Administration should refer has stated emphatically that STS
develops over a period of several years.
135
In addition,
even with the best medical treatment and early detection, 35%
of the STS victims die within five years.
136
The proposed
regulations do little to alleviate the suffering and hardships
that the veterans of Vietnam
~ust
endure.
V. DUE PROCESS CONSIDERATIONS
The procedures involved in prosecuting a claim for
benefits and the substantive criteria for eligibility are very
complex. 137 Veterans' claims, especially claims based on
agent orange or ionizing radiation exposure, may involve
complex issues of causation of which the veteran will probably
()():l~fl
35
be unaware.
138
Although the V.A. must by statutory mandate,
assist the claimant to assemble the proof necessary to
establish his claim, the average time the claios examiners
spend developing the claim averages a mere 2.84 hours. 139
Indeed, the V.A. rates its eQployees in part on basis of the
speed with which they develop the claims. 140 In addition,
the V.A. does not always make the necessary effort to obtain
relevant information even \vhere the information lies within the
control of the a3ency.
141
The claimant has a right to a
hearing at any staged in the proceedings, but the V.A. actively
discourages the veteran from requesting a hearing at the
14 2 Th V A '
. . . 1 p h ase o f· t h e a d JU
. d 1cat1on.
.
.
1n1t1a
e
• • s own
statistics show that a hearing at the early stages of the
adjudication would increase the veteran's chances of
success. 143 The veteran may choose to have a service
organization or a qualified agent represent him, but there is
no requirement that the representative have even a college
education. The veteran may choose to have an attorney represent
him,
but a lawyer may not charge a fee in excess of ten dollars
per claim. 144 ~o lawyer can afford to handle many veterans'
claims even if the claimant can find a lawyer who would be
willing to handle the first claim. There exists no reason for
att~rneys
to develop expertise in the field which, in effect,
leaves the claimant with no guarantee of having a trained and
()():l')fl
3u
skilled representative to present his claim.
The Veterans' Administration continues to be one of the
nost powerful
ad~inistrative
bodies in the United States
government, for no decision of the V.A. will be subject to
judicial scrutiny. The decisions of the Administrator are
absolutely final, and the statutory proscription on judicial
review applies to the decisions that are arbitrary and
capricious as well as to those decisions that are rationally
based.
145 Veterans'
.
th e na t ure o f
1n
benefits, according to the courts, are
. .
gratu1t1es.
146
c ongress
.
g1ves
t h e veterans
the right to compensation benefits and Congress can limit the
claimant's right of review to the administrative scheme.
However,
147
the limitation on attorney fees and the
non-reviewability of the Administrator's decisions combine to
effectively eliminate the claimant's right to counsel. The
V.A.'s policy of pushing benefit claims through the initial
adjudication process without encouraging initial hearings, and
the V.A. 's reluctance to provide the claimant with the
information necessary to prove up his claim, when combined with
the limitation on attorney fees and the preclusion of judicial
review, effectively deny many claiMants due process of law.
Certainly, the veterans who have been denied conpensation do
not view the process as "non-adversary." Surprisingly, the
courts h~ve refused to hold the procedures unconstitutional. Xo
{}f):l97
37
court has declared the preclusion of judicial review
unconstitutional, and only one court in the history of the
attorney fee limitation statute has ventured so far afield as
to declare the statute unconstitutiona1. 148 That decision
will probably be overturned on appeal.
VI. CONCLUSION
The veterans who suffer from physical ailments due to
agent orange contamination will find service connection
extremely difficult to establish. The claimant will have to
show that his service in Vietnam caused the disability of which
he complains,
but causation in cases of toxic chemical exposure
can only be supported by statistical studies. Statistics do not
constitute proof of causation, however.
149
Unless Congress
modifies the system, few veterans will be able to show service
connection. The burden of proof is on the claimant and the
representation the system accords veterans is inadequate. The
V.A. adjudication procedures purport to be non-adversarial,
in reality,
but
the agency itself constitutes the major stumbling
block between the claimant and veterans' disability benefits.
The system is patently unfair, for the persons who decide the
claims must give due consideration to the interest of the
government. 150 V.A.
personnel are not neutral and dis-
interested, for their own jobs may depend upon how they resolve
()():l'}~
3J
f or b ene f.1ts. 151
.
c 1 a1ms
veterans deserve a neutral from in
which to petition the government for redress. Th e
v • A • ' as it
currently operates, is not a neutral forum.
Congress need not abandon the present system altogether in
order to provide a neutral forum in which veterans can present
their claims. The system needs to be overhauled if the
government sincerely wishes to deal with complex issues like
agent orange contamination. First, Congress should expressly
provide that the procedures for adjudicating veterans' claims
be adversarial. American justice is traditionally adversarial,
and although the V.A. purports to provide non-adversarial
proceedings, veterans already view the agency as an opponent
rather than a neutral body. The statutes and regulations should
reflect actual agency procedures.
Second, Congress should either provide for de novo review
before a neutral administrative law judge or provide for
judicial review after the V.A. initially processes the claim.
If Congress elects to employ administrative law judges for
reviewing claims, the Board of Veterans' Appeals should be
remove from the Veterans' Administration in order to provide a
neutral appellate body to review the claims. Additionally, the
decisions of the Board should have precedential effect to
ensure even-handed administration of the veterans' laws.
Decisions of the Board currently do not have precedential
effect. Essentially, Congress should create a new syste~ of
administrative courts to hear veterans' appeals.
Third, Congress should provide veterans the right to be
represented by a licensed attorney. The legislature could
accomplish this by either creating a separate governmental
bureau charged with representing claimants before veterans'
tribunals or by oerely lifting the cap on attorney fees under
the current law. In any case, veterans deserve to have
competent and experienced counsel guide them through the
intricate issues involved in prosecuting veterans' claims
before the government. Congress imposed the linitation on
attorney fees to protect veterans from being exploited for the
mere filing of claims. The fee limitation, as it currently
exists, effectively eliminated the right to competent
representation.
Complex issues such as agent orange contamination in
Vietnam point out the defects in the Veterans' Administration
procedures for
clai~s
adjudication. The administrative
syste~
the government currently employs was instituted long before
modern technology spawned the chemicals which gave risk to the
controversy. 152 The system cannot deal adequately with
complex issues that inevitably accompany advancing technology.
The government must adapt itself to cope with scientific
advances in today's modern world. The research into the effects
~0
of agent orange must continue, for the effects on dioxin
contamination must be determined. Those veterans who were
exposed to toxic and potentially fatal chemicals deserve to
know that the government supports them in their plights.
Perhaps the Qost important step the government could take
toward providing veterans the answers they deserve is to
normalize relations with Vietnam in order to study the effects
of agent orange there. Vietnam is a living laboratory. 153
Nowhere else in the world were herbicides so widely and
indiscriminately used. Since science must rely on statistics to
show the effects of dioxin contamination in nan, scientists
need the opportunity to broaden the study population. Nowhere
else in the world will scientists find as many persons who have
been exposed to dioxin than in Vietnal1.
American veterans deserve answers, and the American
government must place the last vestiges of the Vietnam
experience where it belongs: in the pages of the history books.
The Vietnam War is over for the American people. The government
should do what it can to end the war for th~ people who
actually fought it: the Vietnan veteran. The wounds of war ~ust
heal, and the American government should change its r1ethods of
compensating veterans for their losses that resulted from our
involvement in the war. Congress must change the method of
adjudicating claios to deal effectively with the complexities
(}()il~l.1~
41·
of the issues caused by modern technology.
()();l!l?,
1 • S e e \vi 11 i am A• B u c k i n g ham , J r • , 0 p e r a t i o n Ra n c h II an d : T h e
Air Force and Herbicides in Southeast Asia 1961-1971, 31
(1982) [hereinafter cited as Buckingham].
2. Id.
3. See Buckingham, Appendix 2, 199-200.
4. Id.
5. Buckingham, Appendix 1, at 196; see also American Medical
Ass'n, The Effects of "Agent Orange" and Polychlorinated
Dioxin Contaminants: An Update 1984, 2 [hereinafter cited as
A.M.A. Update 1984).
6. Buckingham, Appendix 1, 196.
7. Id.;
see also A.M.A. Update 1982, 2.
8. Buckingham, at 196.
9. A.H.A. Update, 2; but see
In re "Agent Orange" Products
Liability Litigation, 217 MDL No. 381 (E.D.N.Y. 1985)
(dioxin levels ranged only between 1 and 10 parts per
million).
10. See generally
Veterans' Exposure to Agent Orange: Hearings
Before the Senate Committee on Veterans' Affairs, 98 Cong.,
1st Sess. (1983); Agent Orange Update: Hearings Before the
Senate Committee on Veterans' Affairs, 96th Cong., 2d Sess.
(1980).
11. Id.
1 2 • In re "Agent Orange" Products Liability Litigation, r:DL
381, 340 (E. D. N.Y. 1985); Veterans' Exposure to Agent
\.
,, 0.
43
Orange: Hearings Before the Senate Committee on Veterans'
Affairs, 98th Cong., 1st Sess., 485-489 (1983).
13. In re ''Agent Orange" Products Liability Litigation, MDL ;~o.
381, 340 (1985); Veterans' Exposure to Agent Orange:
Hearings Before the Senate Committee on Veterans' Affairs,
98th Cong., 1st Sess. (1983), at 488 (no service connection
awarded for S.T.S.), at 108 (Center for Disease Control is
conducting studies on possible birth defects).
14. A.M.A. Update 1984, 10-16.
15. Id.;
£iL
Veterans' Exposure to Agent Orange: Hearings
Before the Senate Committee on Veterans' Affairs, 98th
Cong., 1st Sess., 389-395 (1983) (response of Dr. A. Betty
Fischmann to written questions).
16. A.H.A. Update 1984, 14.
17. Id. at 15-16.
18. A.M.A. Update 19d4, 1.
19. Veterans' Exposure to Agent Orange: Hearings Before the
Senate Committee on Veterans' Affairs, 98th Cong., 1st
Sess., 389-392 (1983) [hereinafter cited as Veterans'
Exposure to Agent Orange].
20.
~Veterans'
Exposure to Agent Orange, 396 (1983)
(Response of Dr. Hyman J. Zimmerman, M.D.).
21. Id.
22. Veterans' Exposure to Agent Orange, 396
(1Y~3).
23. Id.
24. Veterans' Exposure to Agent Orange, 397 (1983).
25. Id.
26. Veterans' Exposure to Agent Orange, 378 (1983).
27. Id. at 389 (written response of Dr. A. Better Fischmann,
M.D.).
28. See Veterans' Exposure to Agent Orange, 216-220 (1983)
(prepared statement of Dr. Franz M. Einzinger, M.D.).
29. Id. at 609-629 (report of Dr. Lawrence B. Hobson, ;.1. D.).
Some of the original study reports may be found in English
translation in Agent Orange Update: Hearings Before the
Senate Committee on Veterans Affairs, 96th Cong., 2d Sess.,
(1980).
30. See L. Hardell, Nalignant Lymphoma and Exposure to Chemical
Substances, Especially Organic Solvents, Chlorophenols, and
Phenoxy Acids (1979); reprinted in Agent Orange Update:
Hearings Before the Senate Committee on Veterans' Affairs,
96th Cong., 2d Sess. 729, 746 (1980); see also Veterans'
Exposure to Agent Orange, 614 (1983) (report of Dr.
Law r en c e l3 • II o b son ,
~·I • D•
)•
31. Veterans' Exposure to Agent Orange, 615 (1983).
32. Id. at 132 {prepared statement of Gen. Murphy A. Chesney).
33. The most favorable studies state that exposure to phenoxy
herbicides only constitutes a risk factor in contracting
S.T.S.
34. See A.M.A. Update 1984, 29.
35. Id. at 5; cf Veterans' Exposure to Agent Orange, 398 (1983)
(PCT is ~ marker of dioxin contamination only if persons
are known to have been exposed).
36. 38
37. 38
38. 38
39. 38
40. 38
41 . Cf
u.s.c.
201 (1982).
u.s.c.
210 (1982).
u.s.c.
212(a) (1982); 38 C.F.R.
u.s.c.
4001 (1982).
u.s.c. 4004(c) (1982); 38 C.F.R.
38 u.s.c.
210 (c)(1) (1982).
3.101 (1985).
19.103(a) (1985).
42. reres v. United States, 340 U.S. 135 (1950); £iL Lynch v.
United States, 392 U.S. 571 (1934) (United States is under
no obligation to provide remedy through the courts for
enforcement of rights it creates).
43. 38
u.s.c.
310 (1982).
44. See 38 U.S.C.
4 5 • 3 8 C • F • 1~ •
310, 101(16) (1982).
3.303 (1985).
46. National Ass'n of Radiation Survivors v. Walters, 589 F.
Supp. 1302, 1320 (N.D. Calif. 1984), temp. stay vacated,
U.A.
, 105 S. Ct. 11 (1984);38 C.F.R.
103(a)(c)
(1985).
47. 38
u.s.c.
3002 (1982); 38 C.F.R.
3~
C.F.R.
3.326 (1985).
48.
3.150 (1985).
4 t)
4'J. Cf 38 C.F.R.
3.103(c) (1985).
SO. 38 C.F.R.
3.12(a) (1985); see also 38 C.F.R.
3.6
(1985).
51. 38
u.s.c.
52. 38
u.s.c.
105 (1985);38 C.F.R.
53. 38
u.s.c.
105(b) (1985).
54. 38 C.F.R.
3.102 (1985).
55. 38 C.F.R.
3.303 (1985).
3.301 (1985).
56. Id.
57. See Veterans' Exposure to Agent Orange, 280-281 (1983)
(prepared statement of Sen. Arlen Specter).
58. 38 C.F.R.
3.102 (1985).
59. Id.
60. 38 C.F.R.
3.102 (1985); see also 38 C.F.R.
(l9t$5)
(the V.A. must provide clear and unmistakable proof to
support severance of service connection).
61. 38 C.F.R.
3.303 (1985).
62. 38 C.F.R.
3.102 (1985).
63. See 38 C.F.R.
64. 38
u.s.c.
3.303, 3.305 (1985).
310, 331 (1982); 38 C.F.R.
3.303-3.305
(1985).
65. See 38
u.s.c.
311 ' 312, 333, 337 (1982); 38 C.F.R.
3.304(b), 3.305(b), 3.307, 3.309 (1985).
66. 38
u.s.c.
311 ' 332 (1982); 38 C.F.R.
3.304(b),
47
3.305(b) (1985).
67. Id.
61).
38
u.s.c.
312, 333 (1982), 38 C.F.R.
3.307, 3.308,
3.309 (1985).
69. 38 C.F.R.
3.307(c) (1985).
70. 38 C.F.R.
3.307(a) (1985).
71. 38
u.s.c.
313 (1982) {specifically applies only to the
presumptions in
312, but probably extends to other
presumptions as well. 38
u.s.c.
353 and 38 C.F.R.
3.306
exemplify language that approached conclusiveness of
presumptions).
72. 38 C.F.R.
3.306 (1985).
73. 38 C.F.R.
3.310 (1985).
74. 38 C.F.R.
3.324 (1985).
75. 38
u.s.c.
76. 38 C.F.R.
354(a) (1982); 38
c. F. r~.
3.303 (1985).
3.103 (1985).
3402 (1982).
u.s.c.
3403 (1982).
38 u.s.c.
3001 (1982);
See 38 u.s.c.
77. 38
78.
79.
38 C.F.R.
3.151, 3.152
(1985).
80. 38 C.F.R.
3.155 (1985).
81 . I d.
82. See 38
u.s.c.
83. See 38 C.F.R.
3010 (1982); 38 C.F.R.
3.155 (1985).
3.103(c) (1985) (claims are decided at the
V.A. Regional Office with adjudicatory functions nearest
the claimant's home).
84. 38 C.F.R.
85. 38
u.s.c.
3.104, 19.129 (1985).
4005(a) (1982); 38 C.F.R.
3.103(c), 19.157
(1985).
86. See National Ass'n of Radiation Survivors v. Walters, 589
F. Supp. 1302, 1320 (1984).
87. 38
88. 38
u.s.c.
u.s.c.
4005(b)(1) (1982); 38 C.F.R.
19.129 (1985).
4005(d)(l) (1982); 38 C.F.R.
19.119(b)
(1985).
89. 38
u.s.c.
4005(d)(l) (1982); 38 C.F.R.
1 9 • 1 2 0 ( 1 9 •') 5 ) •
90. 38
u.s.c.
4005(d)(1) (1982); 38 C.F.R.
19.119 (1985).
91. 38
u.s.c.
4005(d)(3) (1982); 38 C.F.R.
19.129 (1985).
92. 38
u.s.c.
u.s.c.
4005(d)(3) (1982); 38 C.F.R.
19.137
4005(d)(3) (1982); 38 C.F.R.
19.124 (1985).
93. 38
94. 38 C.F.R.
19.124 (1985).
95. 38 C.F.R.
19.127 (1985).
96. 38
u.s.c.
97. 38 C.F.R.
4005(d)(1); 38 C.F.R.
100. 38 U.S.C.
101. 38
u.s.c.
102. 38 C.F.I<.
19.120 (1985).
19.123 (1985).
98. See *4004 (1982); 38 C.F.R.
99. 38 U.S.C.
(19~5).
19.111 (1985).
4003(a) (1982); 38 C.F.R.
4003(b) (1982); 38 C.F.R.
4002 (1982); 38 C.F.R.
19.157{c) (1985).
19.1H1(a) (1985).
19.181(a) (1985).
19.157(a) (1985).
49
103. Id.
104. 38
u.s.c.
4002 (1982); 38 C.F.R.
105. 38 C.F.R.
19.160 (1985).
106. 38 C.F.R.
19.173-19.178 (1985).
107. 38 C.F.R.
19.166 (1985).
19.160 (1985).
108. See generally Veterans' Exposure to Agent Orange (1983);
A.M.A. Update 1984.
109. 5.374, 5.784,
991, 98th Cong., 1st Sess. (1983).
110. P.L. 98-542, 98 Stat. 2727 (1984), amending, 38 U.S.C.
352.
I l l . Veterans'
Exposure to Agent Orange (1983) (prepared
statement of John F. Somer. Jr.).
112. Id. at 437-460 (prepared statement of Dorothy Starbuck,
Chief Benefits Director of the V.A.).
113. Veterans' Exposure to Agent Orange, 447 (1983).
114. Id. at 442.
115. Id.
116. Veterans Exposure to Agent Orange, 439 (1983).
117. Id.
118. CF Feres v. United States, 340 U.S. 135 (1950).
119. Cf National Ass'n of Radiation Survivors v. Walters, 58~
F. Supp. 1302,
1321 (1984); compare Veterans' Exposure to
Agent Orange, 439 (1983).
120. Veterans' Exposure to Agent Orange, 439 (1983).
so
121. Id. at 391 (l-lritten response of Dr. A. Better Fischmann).
122. See Buckingham,
123. A.N.A. Update
145 (1982).
19~4,
2; In re "Agent Orange" Products
Liability Litigation, MDL No. 381 (E.D.N.Y. 1985).
124. See, e.g., H.R. 1961 --Vietnam Veterans' Agent Orange
Relief Act: Hearing Before the House Subcommittee on
Compensation, Pension and Insurance, 98th Cong., 1st
Sess., 34 (1983) (statement of Sammy Davis, Congressional
Nedal of Honor winner).
125. 38
u.s.c.
211 (1982).
126. P.L. 98-542, 98 Stat. 2727
5 (1984).
127. P.L. 98-542, 98 Stat. 2727
5(b){l)(A) {the guidelines
must take into account whether the results of the studies
are statistically significant, are capable of replication,
and withstand peer review).
128. P.L. 98-542, 98 Stat. 2727
9 (1984).
129. P.L. 98-542, 98 Stat. 2727
5{b)(2){B) (1984).
130. P.L. 98-542, 98 Stat. 2727
2(5) (1984).
131 • Id.
132. 38 C.F.R.
3.102 (1985).
133. See Proposed Rules
3.3lla, 50 Fed. Reg. 15849-15850
(1985).
134. Id. at 15850.
135. See Veterans' Exposure to Agent Orange, 218 (1983).
51
136. Id.
137. National Ass'n of Radiation Survivors v. Walters, 589 F.
Supp. 1302, 1319 (1984).
138. 589 F. Supp. at 1320.
139. Id.
140. 589 F. Supp. at 1320.
141. 589
F. Supp. at 1321.
142. Id.
143. 589 F. Supp. at 1321.
144. 38 U.S.C.
3404 (1982). See also 38 U.S.C.
3405 (1982).
145. But see Staub v. Rodenbush, 519 F.2d 298 (D.C. Cir. 1975)
(constitutional issues are reviewable despite the
statutory proscription of judicial review of veterans'
claims).
146. See DeRoulfa v. United States, 461 F.2d 1240, 1255 (D.C.
Cir. 1972), cert. denied, 409 U.S. 949 (1972).
147. 461 F.2d at 1256.
148. See Walters v. National Ass'n of Radiation Survivors,
U.S.
, 105 S. Ct. 11, 12 (1984).
149. In re "Agent Orange" Products Liability Litigation, HDL
No. 381, 146 (1985).
150. 38 C.F.R.
3.103 (1985).
151. CF National Ass'n of Radiation Survivors v. Walters, 589
F. Supp.
1302, 1320 (1984).
152. 589 F. Supp. at 1323 (historical discussion in footnote
20).
153. See Agent Orange in Vietnam: Report on Mission to Vietnan
to the House Committee on Veterans' Affairs,
2d Sess.
(1984).
{)f). !lt1.~.
98th Cong.,