Determining Agent Orange Exposure


 

The case of the Vietnam veteran's exposure to dioxin through Agent Orange presents the most complex epidemiological problem ever imagined. The test is this: How do you determine, among 2.5 million Vietnam veterans, who was exposed to Agent Orange, to what degree and extent, and what if any, is the resultant harm of that exposure?

 

Some of the difficulties encountered when confronting this problem include:
1. An estimated 2.5 million men and women served in Vietnam. During their tour or tours, they may have been highly mobile, moving about the countryside throughout an area as big as the state of California. Tracking a single individual for every day of their tour is extraordinarily difficult, tracking large numbers is almost impossible.

 

2. How can exposure be quantified with precision? "Exposure" in epidemiology means the person had the "opportunity" for contact in some manner with the chemical. But what is contact? Does this mean direct contact, such as physically being sprayed with the products, or does it include more remote opportunities, such as contact through airborne particulates, or contact through the food and water chain?

 

3. Degree of exposure: This is sometimes called the dose/response factor in science. In order to estimate the health effect of an exposure, it is useful (some say critical) to be able to estimate "how much" exposure a person may have had, in quantity, frequency, and duration as well as means of exposure.

 

4. Effect: Science looks for "cause and effect" in determining health outcomes. If is extremely difficult to accurately state that a behavior or exposure causes an outcome. For example, it is widely accepted that cigarette smoking may cause lung cancer, but this does not account for those who smoke for years and never get cancer, nor those who never smoked and get the disease.

 

5. Delay: Many diseases, including cancer, have extremely long latency periods. It is possible, therefore, for a person to be exposed to a toxin, and not have the effect of that exposure manifested for twenty years or more. During the years, however, a person may have been "insulted" with other additional exposures through the workplace or the environment. It becomes extremely difficult assessing and separating these "confounding" exposures when looking for the source of a disease.

 

Keeping these difficult criteria in mind here is what the VA considers for Vietnam Exposure!

 

What Is Considered Service In The Republic Of Vietnam For Claims Involving Exposure To Herbicide Agents?
  • 38 USC 1116(a) refers to such service "in the Republic of Vietnam" without defining it. 
  • 38 CFR 3.307(a)(6)(iii) defines service in the Republic of Vietnam as "A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, and has a disease listed at 3.309(e) shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. (Authority: 38 U.S.C. 501(a) and 1116(a)(3))
  • 38 CFR 3.313 defines on service in Vietnam as:

        (a) Service in Vietnam.  "Service in Vietnam" includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam.

        (b) Service connection based on service in Vietnam.  Service in Vietnam during the Vietnam Era together with the development of non-Hodgkin's lymphoma manifested subsequent to such service is sufficient to establish service connection for that disease.  (Authority: 38 U.S.C. 501(a))

  • M21-1, Part III, chapter 5, paragraph 5.10c.(1) defines service in Vietnam as including service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam.  There is no requirement for a specified length of service, duty or visitation in Vietnam under 38 CFR 3.313.  Even a few hours of service in Vietnam during the Vietnam era may be sufficient to service connect subsequently developed non-Hodgkin's lymphoma."
  • VA Intranet site "Frequently Asked Questions" states a  memorandum from General Counsel dated 09-13-96, advises that the interpretation of the phrase "service in the Republic of Vietnam," as used in 38 CFR 3.307(a)(6)(iii), does not include veterans who served aboard ships off the coast of Vietnam but whose service did not involve duty of visitation in Vietnam.  Thus, these veterans would not be entitled to the automatic presumption of 38 CFR 3.309(e) unless they can establish that they were actually exposed to such agents in service. 

What Evidence Can We Use To Verifying Service In The Republic Of Vietnam For Claims Involving Exposure To Herbicide Agents?

  • Quick confirmation of service in Vietnam:
      • DD 214 has an entry entitled "Foreign and/or Sea Service" under the section "Statement of Service" (usually block 22.) that sometimes will show "Vietnam."

             

      • DD 214 has a section entitled "Remarks" (usually block 30.) that sometimes will show "Vietnam or VN service:  Date to Date."

             

      • DA 20 or equivalent will shows dates of service in Vietnam.

             

      • SMRs (service medical records) will sometimes show "RVN" or a location in Vietnam for place of  medical or dental treatment received while in Vietnam.

             

      • DD 214 shows the veteran served in the Army and received the Vietnam Service Medal (usually block 24.).
  • Confirmation of service in Vietnam using the Vietnam Service Medal

        M21-1 Part III, chapter 4, paragraph 4.24g states " In the absence of contradictory evidence, "service in Vietnam" will be conceded if the records shows that the veteran received the Vietnam Service Medal except if the veteran participated in high altitude flights only."  Also, "If  a veteran who did not receive the Vietnam Service Medal claims service connection for exposure to herbicide agents, and alleges service on a ship in the waters offshore of Vietnam, review the record for evidence that the ship was in the waters off Vietnam.  If the veteran cannot produce evidence that the ship was in the waters offshore of Vietnam, request verification from the Navy:

                Naval Historical Center
                Ships' History Branch
                Washington Navy Yard
                901 M St., SE
                Washington, DC  20374-5060

      Furnish the name and number of the ship (e.g., USS Galveston (CLG 3)), and the dates that it is alleged to have been in the waters offshore of Vietnam.)"

      Service in Vietnam will be conceded, in the absence of "contradictory evidence," for Army veterans who received the Vietnam Service Medal

      Verification of service in Vietnam is required on Navy, Air Force, and Marine veterans, even if they received the Vietnam Service Medal.  "Contradictory evidence" referred to in M21-1 Part III, chapter 4, paragraph 4.24g, is not defined; however, based on the definitions and instructions on verifying service in the Republic of Vietnam for claims involving exposure to herbicide agents, we need evidence to show the veteran "set foot" in Vietnam.

  • Developing for confirmation of service in Vietnam

      If we are unable to verify service in Vietnam, M21-1, Part III, chapter 5, paragraph 5.10c.(2) requires we develop to the service department (PIES request used is "019 - PTSD data" so that we get copies of the DA 20 or equivalent) and ask the claimant to submit evidence to show Vietnam service or to obtain confirming buddy statements if the claimant alleges service in Vietnam.  The claim cannot be denied based on a lack of verification of Vietnam service until the claimant has had 60 days to respond to the request.

  • IT MUST BE STRESSED EACH CLAIM REQUIRES CASE-BY-CASE ANALYSIS.

    Attached information from the Internet explains the Vietnam Service Medal, Armed Forces Expeditionary Medal, and Republic of Vietnam Campaign Medal.  Additional information on medals, etc., can be found at: www.americal.org/awards or www.usmilitary.about.com/careers/usmilitary/cs/medalsanddecs/index.2.13 Vietnam Service Medal


    a. The Vietnam Service Medal (VSM) was established by Executive Order 11231, 8 July 1965. It is awarded to all members of the Armed Forces of the United States serving in Vietnam and contiguous waters or airspace thereover, after 3 July 1965 through 28 March 1973. Members of the Armed Forces of the United States in Thailand, Laos, or Cambodia, or the airspace thereover, during the same period and serving in direct support of operations in Vietnam are also eligible for this award.

    b. To qualify for award of the VSM an individual must meet one of the following qualifications:
    (1) Be attached to or regularly serve for 1 or more days with an organization participating in or directly supporting military operations.

    (2) Be attached to or regularly serve for 1 or more days abroad a Naval vessel directly supporting military operations.

    (3) Actually participate as a crewmember in one or more aerial flights into airspace above Vietnam and contiguous waters directly supporting military operations.

    (4) Serve on temporary duty for 30 consecutive days or 60 nonconsecutive days in Vietnam or contiguous areas, except that time limit may be waived for personnel participating in actual combat operations.

    c. No person will be entitled to more than one award of the VSM.
    d. Individuals qualified for the Armed Forces Expeditionary Medal for reason of service in Vietnam between 1 July 1958 and 3 July 1965 (inclusive) shall remain qualified for that medal. Upon request (unit personnel officer) any such individual may be awarded the VSM instead of the Armed Forces Expeditionary Medal. In such instances, the Armed Forces Expeditionary will be deleted from the list of authorized medals in personnel records. No person will be entitled to both awards for Vietnam service.

    e. Vietnam and contiguous waters, as used herein, is defined as an area which includes Vietnam and the water adjacent thereto within the following specified limits: From a point on the East Coast of Vietnam at the juncture of Vietnam with China southeastward to 21 N. latitude, 108 15E. longitude; thence, southward to 18 N. latitude, 108 15E. longitude; thence southeastward to 17 30N. latitude, 111 E. longitude; thence southward to 11 N. latitude; 111 E. longitude; thence southwestward to 7 N. latitude, 105 E. longitude; thence westward to 7 N. latitude, 103 E. longitude; thence northward to 9 30N. latitude, 103 E. longitude, thence northeastward to 10 degrees 15N. latitude, 104 27E. longitude; thence northward to a point on the West Coast of Vietnam at the juncture of Vietnam with Cambodia.

    f. The VSM may be awarded posthumously.
    g. The boundaries of the Vietnam combat zone for campaign participation credit are as defined in d above.
    h. One bronze service star is authorized for each campaign under the following conditions:
    (1) Assigned or attached to and present for duty with a unit during the period in which it participated in combat.
    (2) Under orders in the combat zone and in addition meets any of the following requirements:
    (a) Awarded a combat decoration.
    (b) Furnished a certificate by a commanding general of a corps, higher unit, or independent force that he actually participated in combat.

    (c) Served at a normal post of duty (as contrasted to occupying the status of an inspector, observer, or visitor).
    (d) Aboard a vessel other than in a passenger status and furnished a certificate by the home port commander of the vessel that he served in the combat zone.

    (3) Was an evader or escapee in the combat zone or recovered from a prisoner-of-war status in the combat zone during the time limitations of the campaign. The Vietnam campaigns are in appendix B. (Service stars are described in chap 6.)

    2.12 Armed Forces Expeditionary Medal


    a. The Armed Forces Expeditionary Medal (AFEM) was established by Executive Order 10977, dated 4 December 1961 (DA Bull. 1, 1962) and Executive Order 11231, 8 July 1965. This medal is authorized for U.S. military operations, U.S. operations in direct support of the United Nations, and U.S. operations of assistance for friendly foreign nations. Operation, area of operations, and direct support are defined in the glossary.

    b. The AFEM is awarded for service after 1 July 1958, meeting the qualifications indicated below:
    (1) Personnel must be a bona fide member of a unit and engaged in the operation, or meet one or more of the following criteria:

    (2) Not used.
    (a) Have served not less than 30 consecutive days in the area of operations.
    (b) Be engaged in direct support of the operation for 30 consecutive days or 60 nonconsecutive days, provided this support involves entering the area of operations. The qualifying criteria for non-unit direct support personnel in Grenada is 6 consecutive days or 12 nonconsecutive days.

    (c) Serve for the full period where an operation is less than 30 days duration.
    (d) Be engaged in actual combat, or duty which is equally as hazardous as combat, during the operation with armed opposition, regardless of time in the area.

    (e) Participate as a regularly assigned crewmember of an aircraft flying into, out of, within, or over the area in support of the military operation.

    (f) Be recommended, or attached to a unit recommended, by the chief of a service or the commander of unified or specified command for award of the medal, although the criteria above have not been fulfilled. Such recommendations may be made to the Joint Chiefs of Staff (JCS) for duty of such value to the operation as to warrant particular recognition.

    c. The designated U.S. military operations, areas, and dates are as follows:
    (1) Quemoy and Matsu Islands. From 23 August 1956 to 1 June 1963.
    (2) Lebanon. From 1 July 1958 to 1 November 1958.
    (3) Taiwan Straits. From 23 August 1958 to 1 January 1959.
    (4) Berlin. From 14 August 1961 to 1 June 1963.
    (5) Cuba. >From 24 October 1962 to 1 June 1963.
    (6) Congo. From 23 to 27 November 1964.
    (7) Dominican Republic. From 28 April 1965 to 21 September 1966.
    (8) Korea. >From 1 October 1966 to 30 June 1974.
    (9) Cambodia (Evacuation of Cambodia--Operation EAGLE PULL). From 11 to 13 April 1975.
    (10) Vietnam (Evacuation of Vietnam--Operation FREQUENT WIND). From 29 to 30 April 1975.
    (11) Mayaguez Operation. 15 May 1975.
    (12) Grenada--Operation URGENT FURY. From 23 October 1983 to 21 November 1983. The qualifying criteria for non-unit direct support personnel in Grenada is 6 consecutive days or 12 nonconsecutive days.

    (13) Libya--Operation ELDORADO CANYON. From 12 April 1986 to 17 April 1986.
    (14) Persian Gulf--Operation EARNEST WILL. From 24 July 1987, the date of the Bridgeton incident, to 1 August 1990. The area of operations is the area from 20 degrees north latitude northward to 30 degrees, 30 minutes, north latitude and from 46 degrees, 36 minutes, east longitude eastward to 63 degrees east longitude. These geographical limits include the Persian Gulf, Bahrain, Kuwait, the Gulf of Oman and most of Saudi Arabia.

    (15) Panama--Operation JUST CAUSE. >From 20 December 1989 to 31 January 1990.
    d. Designated U.S. operations in direct support of the United Nations: Congo. From 14 July 1960 to 1 September 1962.
    e. Designated U.S. operations of assistance for a friendly foreign nation are as follows:
    (1) Laos. From 19 April 1961 to 7 October 1962.
    (2) Vietnam. >From 1 July 1958 to 3 July 1965.
    (3) Cambodia. From 29 March 1973 to 15 August 1973.
    (4) Thailand (only those in direct support of Cambodia operations). From 29 March 1973 to 15 August 1973.
    (5) Lebanon. From 1 June 1983 to 1 December 1987.
    f. One bronze service star is worn to denote subsequent award of the AFEM. To be eligible for additional awards, service must be rendered in more than one of the designated areas and dates specified in c, d, and e above. No two awards will be made for service in the same designated area. (Service stars are described in chap 6.)

    9.19 Republic of Vietnam Campaign Medal
    The Republic of Vietnam Campaign Medal is awarded by the Government of the Republic of Vietnam to members of the United States Armed Forces and authorized by DOD 1348.33-M.

    a. To qualify for award personnel must meet one of the following requirements--
    (1) Have served in the Republic of Vietnam for 6 months during period specified in b below.
    (2) Have served outside the geographical limits of the Republic of Vietnam and contributed direct combat support to the Republic of Vietnam and Armed Forces for 6 months. Such individuals must meet the criteria established for the Armed Forces Expeditionary Medal (Vietnam) or the Vietnam Service Medal, during the period of service required to qualify for the Republic of Vietnam Campaign Medal.

    (3) Have served as in (1) or (2) above for less than 6 months and have been one of the following:
    (a) Wounded by hostile forces.
    (b) Captured by hostile forces, but later escaped, was rescued or released.
    (c) Killed in action or otherwise in line of duty.
    (4) Personnel assigned in the Republic of Vietnam on 28 January 1973 must meet one of the following:
    (a) Served a minimum of 60 days in the Republic of Vietnam as of that date.
    (b) Completed a minimum of 60 days service in the Republic of Vietnam during the period from 28 January 1973 to 28 March 1973, inclusive.

    b. Eligibility for award under authority of this paragraph is limited to the period from 1 March 1961 to 28 March 1973, inclusive. Eligibility for acceptance of this award solely by virtue of service performed prior to 1 March 1961 or subsequent to March 1973 is governed by paragraph 9-8.

    c. The Republic of Vietnam Campaign Medal with Device (1960) and the miniature medal are items of individual purchase. The Ribbon with Device (60-) will be requisitioned per paragraph 1-44 only for initial issue to eligible individuals.