DVA facing lawsuit over refusal to rule herbicide exposure in US territories

June 14, 2020

  

The Military-Veterans Advocacy, a Louisiana-based nonprofit organization, is preparing to sue the Department of Veterans Affairs over its refusal to extend the presumption of herbicide exposure to veterans who served on Guam, Johnston Island and American Samoa between 1962 and 1980.

 

John B. Wells , a retired Navy commander and litigation director for MVA, said DVA can preempt the impending lawsuit by reversing the May 12 decision issued by Veterans Affairs Undersecretary Paul Lawrence, who maintained that  the department "will continue to consider claims of exposure on an individual, case-by-case basis." 

 

 

MVA is set to  file the lawsuit around July 13 to challenge Lawrence's denial of the group's petition for a blanket rule to compensate all veterans exposed to herbicides while deployed in the U.S. territories.

 

"I invite you to withdraw your denial and agree to issue rules prior to or after we file suit,"  Wells said in a letter to Veterans Affairs Secretary Robert Wilkie. 

 

In his letter to Wells on May 12, Lawrence said the DVA's review of the veterans' Agent Orange-related disability claims are based on the Department of Defense's "information regarding the presence or absence of tactical herbicides" in locations outside of Vietnam.

 

"In order to constitute a location where tactical  herbicides were used, stored, tested or transported, the VA/DoD joint criteria required the existence of an official record, to include government reports, unit histories, shipping logs, contracts, scientific reports or photographs," Lawrence wrote. "The location must have been a DoD installation, land under DoD jurisdiction or a non-DoD location where service members were present during testing, application, transportation or storage of tactical herbicides."

 

Lawrence said DoD's review of records concerning the use, testing, storage and transportation of tactical herbicides found no evidence of Agent Orange or other tactical herbicides on Guam and American Samoa.

 

Quoting from the Government Accountability Office's 2018 report, Lawrence said trace levels of chemicals found on Guam were components of commercial herbicides that were commonly used on foreign and stateside military bases for standard vegetation and weed control.

 

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 In Johnson Island, Lawrence said civilian contractors, not military personnel, were responsible for site monitoring of activities involving drums of Agent Orange.

 

"Drum leakage did occur, due to degradation of the metal drums under the environmental conditions of the island, but, on a daily basis, civilian contractors screened the entire inventory for leaks," Lawrence said. "The floor of the Johnston Island storage site was comprised of densely compacted coral. Because of the composition and properties of coral, any leaked herbicide was bound to the coral, providing little opportunity for the herbicide to become airborne."

 

Lawrence added that due to the storage location and wind patterns, any airborne herbicide would rapidly be dispersed away from Johnston Island and into the open Pacific Ocean.

 

"Overall, although contemporaneous independent monitors found concentrations of 2,4-D and 2,4,5-T in ambient air and water samples on Johnston Island, they concluded that any exposure was well below permissible levels,"he added.

 

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Wells disputed Lawrence's arguments. 

 

“Lawrence’s dismissal of herbicides as commercial rather than tactical is a distinction without a difference.  The Government Accounting Office (GAO) noted in a 2018 report that both commercial and tactical herbicides contain the chemicals 2,4,5_T and 2,4-D which combine to make the deadly dioxin 2,3,7,8-TCDD,” he said in a press statement.

 

"It is not the label assigned, but the chemical composition of the herbicide that wrecks havoc on the human body.  Veterans exposed to that herbicide tho have manifested a covered disease or disability should be covered.”

 

 

Wells also dismissed as "ludicrous" Lawrence's arguments on Johnston Island. While admitting  that leaking barrels of Agent Orange herbicide were stored on Johnston Island, Lawrence  claimed that coverage should be denied because civilian contractors rather than military personnel maintained the leaking drums.

 

 In his letter to Wilkie,Wells wrote that “civilians and military shared common areas including latrine and shower facilities, recreational facilities, a common laundry, dining ball, chapel etc. In these close quarters cross-contamination between civilian and military would have been rampant.” 

 

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