Agent Orange is the name of a blend of herbicides that the U.S. military sprayed in the Republic of Vietnam and surrounding areas during the Vietnam War. It is the combination of two herbicides, the chlorinated phenoxy acids of 2,4-D and 2,4,5-T. For an explanation of the chemical make-up of Agent Orange see the post on Agent Orange, Herbicides, and TCDD Explained. Agent Orange was a part of the herbicidal warfare program Operation Ranch Hand. Agent Orange was sprayed from 1961 to 1971 to remove trees and vegetation in order to reduce areas for enemy hiding and cover. The name Agent Orange comes from the orange colored identifying label on the large, 55-gallon storage drums. Over 19 million gallons of herbicides were sprayed during the Vietnam War without the knowledge of the debilitating health risks and effects.
During the Vietnam War, over 9 million Americans served on active duty with nearly 3 million serving in the Republic of Vietnam. Many Veterans who served during this time were exposed to these toxic chemicals leading to the development of various diseases. Beginning in 1990, the Veterans Administration (VA) recognized that certain cancers and other serious health issues developed by these veterans were associated with Agent Orange and other herbicide exposure during military service in the sprayed areas. Under the Agent Orange Act of 1991, the VA must provide presumed service connection for diseases the Institute of Medicine found as positively associated with Agent Orange.
The VA lists the illnesses and diseases that are assumed to be related to a Veteran’s military service during the Vietnam War, which are presumptive diseases. This means that service connection for the disease/illness is presumed to be due to the in-service event of exposure to Agent Orange. By law, Veterans that set foot in the Republic of Vietnam or served on its inland waterways (Brown Water) during the Vietnam War, and are currently suffering from one of the listed diseases are presumed to be exposed to Agent Orange and therefore, in most cases, leads to VA Disability benefits for the disease.
This means that the Veteran may be eligible for benefits by proving that they: (1) have a current disability of one of the Agent Orange connected diseases and they (2) served in an area where the VA recognizes that Agent Orange exposure occurred. It is important to note that the Veteran must prove that he or she has a current disability or residual effects from an in-service disease. Your exposure must have produced a disease or residuals of a disease due to the exposure. Evidence of service and medical conditions can be developed from your military service records, service medical records (SMR's), private medical records, and expert medical opinions. For some of the non-cancer conditions connected with Agent Orange a third requirement is necessary for service connection. This third requirement is that the disease developed within one year of the last day of exposure to Agent Orange.
A large area of dispute in connection with exposure to Agent Orange is in regard to the veterans who served aboard ships offshore of the Republic of Vietnam without setting foot on land, known as “Blue Water” Vietnam veterans. Under current law, Blue Water Vietnam veterans are not guaranteed presumptive service connection and must prove exposure. This is unlike “Brown Water” Vietnam veterans whom service connection is presumed due to their service on vessels in inland waterways of the Republic of Vietnam. While it is difficult to prove a factual connection between your medial condition and direct exposure to Agent Orange, thousands of Blue Water Vietnam Veterans are being denied benefits they deserve from serving their country. For updated information on "Blue Water Veterans" click HERE.
This is currently only 1 way that a "Blue Water Veteran" can easily get VA Disability Benefits based on a "presumption". This would be if the veteran has Non-Hodgkin's Lymphoma. You can click on the following link to learn more about Non-Hodgkin's Lymphoma and its relation to Agent Orange.
TCDD is 2,3,7,8-Tetrachlorodibenzodioxin, a chemical in a group of compounds named dioxins. It is what makes Agent Orange as notorious as it is, and is arguably the most toxic of all the dioxins, which is saying a lot, as dioxins are notoriously toxic.
TCDD wasn’t purposely part of Agent Orange, it’s a by-product of the process by which creates organochloride herbicides. Agent orange was intended to be a mixture of 2,4,5-Trichlorophenoxyacetic acid (2,4,5, T) and 2,4-Dichlorophenoxyacetic acid, (2,4-D) which were commonly used herbicides. There was already some controversy related to the health effects of these herbicides (particularly 2,4,5-T,) but it was the contamination of Agent Orange somewhere during the manufacturing process with TCDD that really made it so deadly.
Often, I hear people talk about illnesses related to Agent Orange as cause by “herbicide.” TCDD isn’t an herbicide, and wasn’t placed in there to kill plants, it was simply an accident, likely caused by Monsanto overheating the mixture during manufacture. (It’s interesting to note that other manufacturers, and even published, peer-reviewed studies had already warned that TCDD could be a contaminant when high temperature processes were used, but Monsanto used this method anyway, perhaps because it was cheaper or quicker.)
Even if the batch hadn’t become contaminated with TCDD, it would likely be the case that vets and civilians would have become ill, just due to the health problems associated with the herbicides, and the crazy amount they were spraying overhead. But TCDD is nasty, nasty stuff, even in small amounts.
Basically, TCDD activates proteins in our bodies called aryl hydrocarbon receptors, which help us protect ourselves from naturally-occurring toxic chemicals like benzene. These receptors trigger the production of enzymes called Cytochrome P450 to break down these hydrocarbons to protect our cells from the damage they cause. This is actually a GOOD thing, and we actually see with miniscule doses, LESS cancer and LESS diabetes in TCDD-exposed rats. However, as soon as you’re exposed to a decent dose for a period of time, everything goes haywire. The body can’t produce more P450 enzymes, so we are unable to break down toxins, and you see huge increases of cancer and the whole mess of health problems that we associate with Agent Orange.
It’s actually a very similar to the way heroin/morphine work and cause withdrawal. Heroin is an opiate receptor agonist, and TCDD is an aryl hydrocarbon agonist. When you take away the morphine, you get withdrawal symptoms because your brain stops making dopamine, since the heroin has been clogging up all the opiate receptors. With TCDD, instead of dopamine, you stop producing P450, whose job it is to break down all these cancer-causing hydrocarbons. It’s like letting loose a cancer free-for-all.
An important part of VA Disability law provides relief if a veteran suffers an injury or dies as the result of “negligent” VA health care, VA vocational rehabilitation, or the VA compensated work therapy (CWP) program. The Statute allowing these benefits is 38 USC § 1151, better known simply as an 1151 claim. A claim under Section 1151 is similar to a medical malpractice claim against the VA, but there are some very important differences.
In order to file an 1151 claim, a veteran or family member has to write the VA indicating that he/she believes that a permanent injury/disability, or death has occurred as the result of an action, or failure to act, of the VA. You MUST be able to show “intent”, in order to apply for 1151 benefits or VA disability benefits. Once this is done, the claims process should be triggered.
In order to win an 1151 claim involving medical care, the veteran or his family must prove: (1) that the disability or death was not the result of willful misconduct, and (2) the “proximate cause” was due to a VA medical provider’s carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault; or (3) that the outcome was not reasonably foreseeable. If the 1151 claim is due to voc-rehab, or the CWT program, then the rules are different and the veteran or his family member only has to prove “proximate cause”, but not negligence or fault. The VA defines “proximate cause” to mean that the action or event must directly cause the disability or death. In simple terms, it must be the actual cause of the injuries or death.
If a claimant is successful in the 1151 action, then the VA regulations require that the disability or death be treated in the same manner “as if” it were a service-connected injury. This means claims approved under Section 1151 allow veterans or survivors to receive VA Disability Benefits or Dependency and Indemnity Compensation (DIC), as applicable.
Most 1151 claims are very difficult to win because the “standard of proof” is pretty high, and always will require the opinion of a medical expert. Not surprisingly, the VA often fights these claims by saying that the medical providers use proper judgment and provided adequate care. They say the consequences of a medical procedure were foreseeable, or that the patient gave informed consent. This is where the medical expert employed by the veteran or his family comes into play by providing an opinion as to whether or not there was carelessness, negligence, lack of proper skill, etc..
Finally, it is important to know that there are other remedies beyond a Section 1151 claim that may be available in VA malpractice situations; for example, filing suit under the Federal Tort Claims Act (FTCA). The intricacies of filing an FTCA claim are beyond the scope of this blog; however, it is important to have an awareness that alternative remedies exist, and to discuss all options with an attorney that has experience with FTCA claims. At Hale Law Office, attorney Roger B. Hale has the experience to properly evaluate an 1151 or FTCA claim, and to fight for your benefits if a veteran has been injured, or dies due to the negligence of a VA Medical Provider, VA Voc-Rehab provider or a CWT program.