Disability Fight Over Agent Orange Revisited

Federal appeals court will weigh in on the rule that only Vietnam veterans who served on the ground or aboard ships are eligible for disability benefits because of presumed Agent Orange exposure
by Laura Parker, USA TODAY

Jonathan Haas says that he often saw large, billowing clouds of the defoliant Agent Orange drift from the shore and engulf his ship, the USS Mount Katmai, in 1968.

He served in the Vietnam War as the navigator on an ammunition ship that resupplied ammunition, food and fuel to smaller boats patrolling the Vietnam coast.

Twelve years later, the former lieutenant commander was diagnosed with type 2 diabetes, an illness that has been linked to the toxic defoliant. Because Haas never set foot in Vietnam, serving on a ship offshore, the Department of Veterans Affairs denied his claim for medical benefits…

Now a federal appeals court will weigh in on the agency's rule that only Vietnam veterans who served on the ground or aboard ships patrolling inland waterways are automatically eligible for disability benefits because of presumed Agent Orange exposure. In arguments today, the U.S. Court of Appeals for the District of Columbia Circuit will hear the government's appeal of a lower court decision ordering the agency to grant Haas coverage. If Haas, now 70, prevails again, the decision could affect thousands of Navy veterans who served on ships and whose disability claims have been denied.

David Houppert, an attorney and director of benefits for the Vietnam Veterans of America, says it's unclear how many of the Navy's so-called "blue water" veterans were exposed to Agent Orange, or how many are ill. In court papers, the VA says the case could affect more than 800,000 Navy veterans who served off the Vietnam coast.

"This case is significant because Agent Orange is a highly toxic chemical, and the rules are different for individuals who might have served a quarter-mile away from each other," Houppert says. "One group gets covered; one group doesn't get covered."
VA spokesman Jim Benson says the agency does not keep data on how many "blue water veterans" wereexposed. If all of them were entitled to automatic benefits, he says, it could cost the VA $3.3 billion in benefits over 10 years.

In court papers, the VA disputes Haas' claim that he was exposed to Agent Orange. Other court papers note that Haas has a family history of diabetes and was overweight. Neither Haas nor the VA submitted the ship's logs, which could have verified or contradicted his claim that his ship sailed close to shore and was enveloped by an Agent Orange cloud.

The legal case revolves around the court's interpretation of the VA regulation that grants automatic benefits to veterans. Haas contends that he is a member of that group, and therefore was not required to prove his exposure.

Some 20 million gallons of Agent Orange were sprayed over Vietnam between 1962 and 1971 to kill the jungle canopy, according to the VA.

The Haas case is only the latest round in a 30-year legal battle veterans have waged on several fronts to win disability payments resulting from their exposure. Earlier court victories, as well as legislation passed by Congress in 1984 and 1991 in support of veterans' claims, expanded benefits.

Between 1991 and 2002, the VA essentially compensated any veteran who had earned a Vietnam service medal — as Haas did — and suffered from illnesses, such as diabetes and cancer, attributable to Agent Orange, says Bart Stichman of the National Veterans Legal Services Program.

In 2002, Stichman says, the agency changed a key Agent Orange regulation and provided automatic compensation only to those who served on the ground or aboard ships that patrolled inland waterways.

"They are saying that somebody who served on a ship during the years Agent Orange was actually sprayed was less likely to be exposed than a soldier who landed in the Saigon airport for one day in 1975 four years after Agent Orange spraying stopped," he says. "That's irrational."

Haas applied for medical benefits in 2001. His claim was denied in 2002. His case worked its way through various administrative appeals to the U.S. Court of Appeals for Veterans Claims. In August 2006, a three-judge panel on the court rejected the VA's policy and ordered the agency to cover Haas.

"Veterans serving on vessels in close proximity to land would have … an even greater risk than that borne by those veterans who may have visited and set foot on the land of the Republic of Vietnam only briefly," wrote Judge William Moorman.

In its appeal of that decision to the federal panel in Washington, the VA argues that its policy is valid. The VA contends that no scientific evidence exists to show that the "blue water" veterans were subject to the same risk of exposure as those who served on land.

As the case plays out, the Bush administration is pushing legislation in Congress that will codify its overturned policy and deny most benefits to "blue water" veterans who could not prove exposure.

Sen. Daniel Akaka, D-Hawaii, chairman of the Senate Committee on Veterans' Affairs, introduced the measure in September "at the request of the White House," says Jesse Broder Van Dyke, Akaka's spokesman. "But he doesn't support the legislation and doesn't plan to pursue moving it forward. He wanted to honor the president's request to introduce the legislation." No hearings on the bill are scheduled.

While Haas waits for the outcome of both his case and the proposed law, he is getting sicker. His eyesight is deteriorating. He suffers from nerve damage. Any day now, he says, he will begin kidney dialysis.

"At times, we would come down the coast 100 feet from the beach to resupply small boats," he says. "If the wind was blowing offshore, Agent Orange would blow offshore." Haas, who lives in Phoenix, wrote many of his own briefs for his administrative appeals, and perseveres, he says, out of sheer stubbornness.

"I never thought the VA would turn me down," he says. "I had 41 years in the naval reserves and seven-and-a-half years of active duty.

"I put in a lot of time for my country."

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