Vietnam veterans of 'Blue Water Navy' fight for VA aid
By KIM GEIGER | Chicago Tribune | Published: August 9, 2013
CHICAGO — If Greg Fuller had ever, even for just a few minutes, set foot on Vietnamese soil during the time he spent serving in the Vietnam War, he'd be eligible to collect thousands of dollars each year in disability payments.
Diagnosed in 2005 with prostate cancer, Fuller is among the untold number of Vietnam veterans who have illnesses that have been linked to Agent Orange, an herbicide that the U.S. military sprayed over the Vietnamese jungle to expose enemy forces and destroy food crops.
But as a member of the so-called Blue Water Navy — sailors who served aboard ships that operated off the shore of Vietnam — Fuller has received only denial letters from the Department of Veterans Affairs, which maintains that the cancer is not connected to his service in the war because his boots never touched land.
The VA says Blue Water Navy veterans aren't eligible because the herbicide was sprayed over land. Veterans and their advocates say the herbicide ran off into the South China Sea, contaminating the water that the Navy distilled for drinking and powering the ships' boilers.
All but convinced that he'll never see a penny from the disability fund, Fuller filed the letters away at his Lake in the Hills home and gave up the fight years ago. What bothers him still is the feeling that wounded veterans have been cast aside on a technicality.
"I'm not greedy," Fuller said. "It wouldn't bother me if I never got it … but I might deserve it. If it's true that we drank water that was processed that had Agent Orange in it, it's only fair that (we) get it."
Other veterans and their advocates have refused to back down, waging a nearly decadelong legal and legislative battle to change the policy.
Two nonprofit organizations that represent Blue Water Navy veterans filed a lawsuit last week in federal court, charging that the VA has ignored evidence that the sailors were exposed to the herbicide while serving at sea. Meanwhile, a law that would require the VA to grant benefits to Blue Water sailors is making its way through Congress. Similar proposals failed in recent years to gain the required votes.
Named for the orange-striped barrels that were used to transport it, Agent Orange contained the dioxin TCDD, which is believed to cause a number of deadly and disfiguring illnesses among people who were exposed to it and the children of those exposed.
The Agent Orange Act of 1991 created a "presumption of service connection" for illnesses related to Agent Orange, meaning that veterans who served in "active military, naval, or air service … in the Republic of Vietnam during the Vietnam era" who develop specific diseases can qualify for disability and VA health care. The VA has identified 14 "presumptive diseases," including prostate cancer and Type 2 diabetes. Veterans who served on land or inland waterways are automatically eligible for VA benefits if they have any of those diseases because the VA assumes that they were exposed to Agent Orange. Many soldiers fought in jungles where it was sprayed.
Sailors who served aboard naval ships that operated in the territorial seas of Vietnam were also eligible until the VA changed the rules in 2002, limiting coverage for Blue Water Navy veterans only to those who went ashore or ventured into inland waterways — and can prove it. The VA defends the policy by pointing to a 2011 report by the independent Institute of Medicine, or IOM, which concluded that "there was not enough information for the IOM to determine whether Blue Water Navy personnel were or were not exposed to Agent Orange."
That report also stated that it was impossible to quantify the exposure of veterans who served on land and inland waterways, and that there wasn't consistent evidence to suggest that Blue Water Navy veterans were any more or less at risk for illnesses related to Agent Orange.
The IOM also determined that there were several ways that Blue Water Navy personnel could have been exposed: inhalation and skin contact from spraying operations near the coast; contact with marine water; and use of water that was distilled from contaminated seawater.
Meagan Lutz, a spokeswoman for the VA, acknowledged that the IOM committee wasn't able to scientifically justify the presumption that some veterans were exposed to Agent Orange and others were not.
"However, the fact remains that Agent Orange was sprayed over land and not over open coastal waters and that duty or visitation within the country of Vietnam, or on its inland waterways, is required by VA regulations to receive the presumption of exposure," Lutz said.
Veterans advocates, led by the Blue Water Navy Association, say the VA has ignored evidence that the herbicide ran off from rivers and streams, contaminating the South China Sea, where Navy ships distilled seawater into drinking water.
"The VA, they seem to think there's this invisible magic filter that only catches Agent Orange on land and rivers and streams," said John Wells, a veteran and lead lawyer on the association's lawsuit against the VA.
A study published in 2004 in the Russian Journal of Marine Biology concluded that it is "very likely" that defoliants ran off from rivers and into the South China Sea. The authors assessed the condition of habitats on the bottom of Nha Trang Bay and concluded that dioxin from herbicides was likely to blame for degradation of the bay's coral reefs.
A 2002 study commissioned by the Australian government concluded that it's possible that the dioxin made its way into drinking water aboard the ships. The water distillation system used by naval ships "does not remove but rather enriches certain contaminants such as dioxins in drinking water," according to the study.
Steven Hawthorne, a senior research manager at the University of North Dakota's Energy & Environmental Research Center, reviewed the Australian study for the Institute of Medicine.
"There's no doubt in my mind" that dioxin was present in the seawater off the coast of Vietnam, Hawthorne said in an interview.
"Based on the physical chemistry that controls these processes, I fully support the conclusions of their experiments," Hawthorne said he told the IOM, which then backed the study in a 2009 report to the VA.
But the VA, Lutz said, believes the IOM found the Australian study to be inconclusive.
Additionally, from the VA's perspective, the matter has already been settled by courts. A federal appeals court in 2008 overrode a 2006 ruling that Navy sailors were entitled to benefits even if they did not set foot on land. Veterans advocates tried unsuccessfully to appeal that ruling to the Supreme Court; the justices decided in 2009 not to hear the case.
The denials aren't limited to veterans who served exclusively on ships. Sailors who say they went ashore at some point during their service need proof that backs up their claim. If records don't exist or can't be found, the VA can deny the claim.
"It's been a fight from day one," said Jim McKinney, a veteran who first applied for benefits in 2004 and whose case is before a federal appeals court.
McKinney, 66, of Pawnee, Ill., has Type 2 diabetes, a condition that led to the amputation of his right foot. He served aboard the USS Pickaway from 1966 until 1970 and remembers leaving the ship to help offload supplies at Danang Harbor, less than a mile from an air base that remains one of the most contaminated areas of Vietnam today.
But deck logs name only the ship's captain among the crew that left the ship.
"I was on the ship, the ship was there. They can't deny all this stuff," McKinney said. "Why do you pull in there if you're not going to offload supplies and onload supplies back on? They were not required to list (on deck logs) the names of the people that left. But the VA didn't want to recognize that."
Fuller was a second-class electronics technician aboard the USS Basilone in 1972 when his ship provided gunfire support off the coast of Vietnam. He remembers spending days and nights floating close enough to land that his unit was able to shoot at suspected Viet Cong and once leveled an entire village.
It wasn't until years after his diagnosis that Fuller learned that the cancer could have been caused by exposure to Agent Orange.
"I looked it up and I went, 'Oh my gosh, that's true,' " he said.
Fuller's initial claim was denied in 2009, just months after the Supreme Court rejected the pending court case. He appealed his denial and was again rebuffed.
"You submitted medical evidence that you have prostate cancer and submitted evidence you were exposed to sea water offshore of Vietnam that was contaminated by Agent Orange," the VA wrote in the denial letter. "…There is no evidence you served on the ground in Vietnam and thus, no evidence of exposure to herbicides."
Fuller watched over the next few years as Congress failed repeatedly to pass legislation that would have required the VA to approve his claim.
Despite having to undergo surgery to treat his cancer, Fuller, 66, said he is otherwise in good health and his illness has done little to affect his quality of life.
Still, he said, "I would have liked to have been recognized."
Fuller let the issue go, but others feel more strongly.
"The way they've treated the people that were exposed to Agent Orange, I think that is just unconscionable," McKinney said
McKinney said he researched his family's medical history going back three generations and found no history of diabetes. He sent copies of relatives' death certificates to VA claims administrators. The VA was not convinced.
If McKinney's claim is ever approved, he could be entitled to benefits going back to when he first filed the claim, according to his lawyer, Wells.
John Rossie, executive director of the Blue Water veterans group, said his organization has heard from more than 1,000 veterans who've been denied disability for Agent Orange-related illnesses. He's been able to help some veterans win benefits and has spent years trying to change the VA's policy.
"We're up against something that's lived through five or six different presidencies," Rossie said, noting that the government has a long history of reluctance when it comes to acknowledging the damage that was caused by the military's herbicide spraying.
"My guess is that if they admit that dioxin was in the water, then they're going to find themselves liable for damages to the fishing industry in all the surrounding nations since the 1960s," he said.
A 2009 bill garnered 261 co-sponsors in the House of Representatives but never made it to the floor for a vote. This year's bill has 132 co-sponsors, including three from Illinois: Reps. Luis Gutierrez, Bobby Rush and Cheri Bustos. It awaits subcommittee action. The VA has not taken a position on the bill.
"VA's policies related to Blue Water Navy veterans are based on the laws currently in effect," Lutz said. "If Congress passes legislation, VA will implement that legislation."
Rossie estimates that there are about 100,000 Blue Water Navy veterans who are still alive, but nobody knows how many might have Agent Orange-related illnesses. The VA doesn't know how many Blue Water veterans have already applied and been denied, Lutz said.
A preliminary estimate by the Congressional Budget Office projects that giving Blue Water veterans presumptive coverage would cost the federal government about $2.74 billion over 10 years. Rossie expects that figure will be lowered if the CBO can determine how many veterans would be eligible to submit claims.
But the 10-year estimate is a Washington budgeting tool that overlooks an unfortunate reality, Rossie said.
"If anybody's sick with Agent Orange, they won't be around for 10 years," Rossie said.