Ruling Boosts Hopes of Agent Orange Claimants

David Maier believes he lost his arm in the service of his country. His country, until now, has disagreed.

The arm--a casualty of cancer, not combat--was amputated at the shoulder seven years after Maier’s discharge from the Navy.

But the Vietnam veteran, now 46 and living in Bay Village, Ohio, puts the blame for his cancer on Agent Orange, the toxic herbicide U.S. troops sprayed over the jungles of Southeast Asia. He is convinced that it was awash in the coffee-colored Mekong River water pumped aboard his ship for showers.

Like more than 34,000 other Vietnam veterans who believe they have become ill because of Agent Orange, Maier applied for government disability benefits. And, like all but five of those applicants, he was denied.

Now Maier hopes his claim will be reconsidered, thanks to a federal judge’s recent ruling in San Francisco that found the government failed to give Agent Orange claimants the benefit of the doubt.

To the surprise of many veterans, the Bush Administration decided not to appeal. Instead, Veterans Secretary Edward Derwinski announced that the Department of Veterans Affairs, the new name for the Veterans Administration, would rewrite its rules for granting disability.

Derwinski’s decision could open the door to claims from hundreds of thousands of Vietnam veterans.

34,000 Applicants

Although 34,000 have applied for disability on the basis of Agent Orange exposure, about 250,000 veterans are listed in a registry of those who believe they were exposed to the herbicide. Many never applied because they believed they did not stand a chance of getting disability.

Officials for some veterans’ organizations say they are cautiously optimistic that the VA has changed its attitude along with its name.

“It is our feeling at this point that Secretary Derwinski really does want to see some change,” said Barry Kasinitz, a spokesman for Vietnam Veterans of America, the group that brought the lawsuit in San Francisco.

Others remain skeptical, their attitude reflecting the deep bitterness that many Vietnam veterans feel toward a government that they believe used and abandoned them.

“We’ll believe it when we see it,” said James Sparrow, the executive director of Vietnam Veterans Agent Orange Victims, an advocacy group based in Stamford, Conn.

“It’s my feeling that they’ll probably do as little as they can,” said Sandra Hosty, an attorney for Swords to Plowshares, a San Francisco group that provides counseling and representation for veterans seeking benefits.

Still, Hosty added, “I would love to be surprised. I would love to be wrong.”

Agent Orange, named for the orange-striped drums in which it was stored, was developed for the military in the early 1940s. It was a 50-50 mixture of two powerful herbicides called 2,4-D and 2,4,5-T.

Stripped Away Cover

In Vietnam, U.S. troops sprayed Agent Orange from the air to strip away the enemy’s jungle cover and deplete its crops. It worked devastatingly well.

The herbicide was banned after the chemical dioxin, which is present in 2,4,5-T, was found to be the most carcinogenic substance ever tested on laboratory animals.

Veterans organizations have pointed to evidence that the herbicide may cause serious disorders, including non-Hodgkins lymphoma, soft-tissue sarcoma and a liver ailment known as PCT.

The VA, on the other hand, has maintained that Agent Orange has been scientifically linked to only one illness in humans, a severe skin rash called chloracne. And the government has insisted that veterans seeking benefits because of chloracne provide proof that they got the rash from Agent Orange, a burden that has been impossible for most to meet.

However, in what some veterans see as a partial admission of responsibility, the VA has provided free medical care to anyone who believes he or she became ill because of Agent Orange.

A Change in Guidelines

Under Derwinski’s new orders, the Department of Veterans Affairs has begun redrafting its guidelines for disability benefits, starting by changing the way in which it determines whether a “significant statistical association” exists between Agent Orange and a disease.

A scientific advisory committee is to review the proposed changes at a June 26 meeting, after which they will be published in the Federal Register. Derwinski will make a final decision on the changes, probably in October.

Once new guidelines are in place, the VA’s advisory committee will reconsider whether links exist between Agent Orange and diseases that veterans believe it has caused. Again, a final decision will be up to Derwinski.

The stakes are high, as the makers of Agent Orange can attest. After veterans filed a lawsuit against them, seven chemical companies settled out of court for $180 million in 1984.

Derwinski has said cost is irrelevant to the VA’s stance. Disability benefits, which are independent of medical benefits or Social Security, currently range from $73 a month for a veteran who is 10% disabled to $1,468 a month for a veteran who is 100% disabled.

If just 30,000 veterans were found to be 10% disabled, the cost to the government would be more than $26 million a year.

Reason for Doubt

For that reason alone, some veterans’ advocates say they doubt the VA will adopt sweeping changes.

“The VA would literally be opening the doors to tens of thousands of claims,” said Sparrow. “I just don’t see how they could do it.”

Fred Juarbe, director of the National Veterans Service program for the Veterans of Foreign Wars, commended Derwinski for taking “a step in the right direction.”

Still, Juarbe said, “I think the bottom line is, we’re still going to require legislation. . . . Given the way the VA has ruled in the past, we’re not confident that we can rely on the Department of Veterans Affairs to carry out this policy.”

One such piece of legislation was introduced in Congress earlier this month. A bill by Sens. John Kerry (D-Mass.), Alan Cranston (D-Calif.) and Tom Daschle (D-S.D.) would provide disability benefits for veterans who have non-Hodgkins lymphoma or soft-tissue sarcoma, two of the diseases associated with Agent Orange.

“It is time to end the bickering over which study shows the most connection between Agent Orange and certain illnesses and time to begin helping Vietnam veterans,” said Kerry, a former Navy lieutenant who skippered a patrol boat in the Mekong Delta.

Optimism by Plaintiff

George Claxton, a former Army sergeant who was, along with Maier, one of the original plaintiffs in the San Francisco lawsuit against the VA, said he is optimistic about prospects for change.

“I just want the satisfaction of seeing that people are treated with justice and compassion,” said Claxton, 46, of Lansing, Mich., who believes his exposure to Agent Orange caused bleeding colitis and a nervous disorder.

However, he added: “Personally, I don’t ever expect to be paid back for what Agent Orange did to me. You pay a heavy price for war.”