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agent orange exposure low level flights

So we know that VA will move heaven and earth to ignore the realities of chemistry and physics and military operations if it will help them deny an Agent Orange exposure claim.

The VA has long denied that Navy Veterans were exposed to Agent Orange, unless they went into the inland waterways of the RVN.

Until 5 years ago, the VA denied – for over 35 years –  that Agent Orange and herbicides were used on Royal Thai Airbases in Thailand during the Vietnam War….even today, they only grant benefits for MP’s, dog-handlers, and those that can prove that they were exposed on the perimeter of the base (which is every soldier that entered or exited the base, or should be anyway).

The VA will fight veterans that were exposed to Agent Orange on the Korean DMZ tooth and nail – even though we know it was used on the DMZ between North and South Korea for many years. (And, we also know that Agent Orange was stored on Camp Carroll in Korea after the war).

Most recently, the VA’s lawyers insulted Veterans by saying that the service-members that flew the C-123s that sprayed Agent Orange after the war weren’t entitled to Agent Orange presumptions….not because they weren’t exposed to Agent Orange, but because “they weren’t Veterans”.

Day in and day out, we Veterans have to prove to the VA how things in the military work.

And day in and day out, more and more Veterans are having big success showing the VA how the military – and combat – really works.

Agent Orange Exposure and the Reality of Military Operations

Take the case of Navy Veteran Dennis Davis.

He served on the U.S.S. Bennington off the cost of the Republic of Vietnam from 1962 to 1966.

Part of his job involved over 300 hours of operational and training flights, including 19 low-level patrol flights (of 6-7 hours in duration) over the RVN.

They looked for downed aircraft, flew over wooden ships in the inland waterways with a magnetometer to see if the boats carried guns, He testified that on at least 2 occasions, he flew the spray of C-123 “Provider” aircraft that were spraying Agent Orange (or a herbicide that he smelled).  On the aircraft, he sat right by the vents, and there were no cabin air filters.

In other words, Mr. Davis flew through the spraying of herbicides, and it was blown right into his face while working on very low-level flights.

Does any one of you doubt that he was exposed to Agent Orange?

Probably not.

But then, you are not the VA.  The VA loves to make life hard on Vietnam era Veterans.

The BVA’s Unimpressive Decision that ignored key facts alleging Agent Orange Exposure

In this case, the VA and the BVA looked to a JSRRC memorandum that essentially said that shipboard Navy Veterans couldn’t be exposed to tactical herbicides.

Apparently, the BVA judge did not really “get” that service-men in low-level aircraft flying through the Agent Orange spray paths are very different from service-men that stayed on the ships.

Additionally, the BVA found that Mr. Davis was not an expert on chemicals and was not a competent or credible witness to testify that he flew through herbicides or Agent Orange.

Ummm, yeah.

That makes a ton of sense, doesn’t it?

Many of you remember the smell of herbicides.

I remember vividly what certain chemicals we used in the military smelled like…you could almost taste it in the back of your throat. Even when those chemicals were in 50-gallon unlabeled drums, I knew what they were.

Here is an analogy of what the Board told the Veteran:

You’re not a petroleum expert, so you don’t REALLY know the liquid that was spilling out of the gas pump into your car was gasoline.

Seriously, VA?  That’s the best you got?

What amazes me is that the VAs attorneys at the Office of General Counsel wasted taxpayer dollars defending this nonsense.

Seriously, OGC….can you be a bit more discerning in the cases you make Veterans fight over?

Thankfully, the Veterans Court saw through this nonsense, and remanded the case to the BVA to “[E]xpressly consider the possibility that Mr. Davis was exposed to herbicide agents when he flew low-flying aircraft over the jungles and coastline of Viet Nam, reportedly through chemical mist left behind by UC-123 aircraft.”

Be Sure to Consider These Factors Before Making your Agent Orange Exposure Argument at the BVA

I point out this decision to get you all thinking about the different ways that you were exposed to Agent Orange – if you did not have Boots on the Ground in the RVN.

  1. Low level air missions?
  2. Ship-based helicopters that flew NOE (nap-of-the-earth) target recon or Search-and-Rescue missions?
  3. Cleaning the uniforms of service-members exposed to the chemical?
  4. Did you bury it after the war?
  5. Were you on one of the test plots on a state-side base?
  6. Any of the other ways that, through the realities of combat, a Navy Veteran might have come in contact with the herbicide?

Be aware, though, that there are several facts that were significant reasons that the Veteran received a remand and not a denial from the Court:

  1. He had credible and competent testimomy that had him flying NOE or low-level enough that he was in the spray zone above the ground (routine bombing flights, high-altitude recon missions, planes with sufficient ventilation and air-cleaning filters are not going to expose the aircrew to the chemical in the same way as Mr. Davis)
  2. He took care to provide solid and thorough lay evidence – and hired an attorney to represent him at the BVA to make sure that the case was properly proved up to withstand scrutiny on appeal.
  3. He did not hesitate to appeal a CAVC decision by an Acting Veterans Law Judge – I’m not even sure that decisions by Acting VLJs are constitutional – a recent 9th Circuit Court of Appeals decision finding that certain SEC Administrative Law Judges had no constitutional authority to make certain decisions has some very interesting parallels to the use of Acting VLJs.  (My law firm is actively looking at Acting ALJ decisions by the BVA to find a fact pattern where we can raise this constitutional challenge to their authority….contact my firm if you have an adverse BVA decision by an Acting VLJ so my team can take a look and talk to you about it).




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