Commentary on the VA's Notice of Proposed Rule Making

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VA Law

Running Scared: A Conspiracy Theory

The Department of Veterans Affairs (DVA or VA, used interchangeably), on November 27, published a Notice of Proposed Rule Making in the Federal Register. The DVA asks for public comment on the matter of changing the M21-1 Manual so that receipt of the Vietnam Service Medal (VSM) cannot, by itself, indicate a presumption of exposure to herbicides used in Vietnam. Nor, in fact, can it even be conclusive evidence of service in Vietnam.

Up until this point, we thought this whole issue was only about the exposure of off shore personnel to dioxin that escaped the shore line. But it's a bit more subtle than that. And it has some much more far-reaching implications and complications.

The procedure for agencies of the US Government to change the guidelines which they operate under involves a Federal Register announcement. It is a system whereby, on a daily basis, hundreds of notifications appear in small print in a single vehicle that satisfies the requirement for "public notification."

Following publication in the Federal Register, the public has a certain amount of time to respond, in support or opposition, to the announced change. These written submissions are received by the agency posting the change notification and initially all must be accepted. Ostensibly, all are reviewed. Ultimately, few, if any, are acted on. In this instance, what is the likelihood that the VA has any intention of actually being open to public comment?

The DVA very clearly states what the notice of proposed change is going to do; what the DVA will definitively do. They tell us how and why. They don't ask a thing.

They explain quite clearly that the changes they propose "will enable and ensure that its interpretation of the governing statutory provision set forth in its regulations" will be defined exactly as the VA and by extension the U.S. Government wants it to be defined, which I believe is this:

Imperative One
"Under no circumstances can the VA, or any other US Government agency, admit that any Agent Orange ever left the shoreline or internal boundary of Vietnam. This includes not even the modicum of possibility that there can even be a presumption of exposure at any point beyond any boundary of the Vietnamese landmass, in any way, shape or form."

In essence, they are saying the entire existence of Agent Orange was confined to the landmass of Vietnam by divine intervention, because it certainly wasn't confined by the laws of physics. This is clearly a question of scientific fact, and yet, nothing scientific or factual has been brought under consideration. How can the VA deal with issues of science without science? How can they assume we are stupid enough to think that any comments, however long a response period is given, will even be considered?

The VA continues their linguistic antics when they state that ".....receipt of the VSM does not require or permit VA to ignore other evidence" .... "that a veteran did not serve in the Republic of Vietnam."

The point at issue is now "service in Vietnam," not presumptive exposure to herbicides as was the focus of the court arguments. Wait, now. Somebody just switched the tables on us again. We're back to a game of semantics played for the lives of our servicemen. Slick, isn't it!

But "ignoring evidence" is in fact what the VA does best, especially via the IOM, who ignored well grounded research, probably on orders from the VA, and did not even present those important findings to the VA. ( This allowed the VA to present the face of ignorance on well-established fact that only the IOM refuses to acknowledge. What more could you expect from a well paid contract worker?.

And this, my friends, is why they are running scared... why they are putting so much effort to remove acknowledgment of Agent Orange contamination to those who stood even 10 feet off shore or sailed 20 miles up a Vietnamese river. Once they make any acknowledgement, they open themselves up to Global Liability. It's a great conspiracy theory. The problem is, it might just hold water. Let's see how it unfolds.

Who it the Enemy? OR Why pick on us?
The Department of Veterans Affairs couldn't care less if they were dealing with the Blue Water Navy or the Girl Scouts. They have a mission, clearly stated in Imperative One. They simply can't let this happen. It doesn't matter how much scientific data is put on the table or if you don't put any on the table at all (or so we are erroneously led to believe). It doesn't matter whether a class of veteran is discriminated against without reason or proof or the acknowledgment of reason or proof. "The enemy" is anyone who just happens to challenge this illogical belief and break the attempt to maintain the rule of Imperative One.

When the VA was finally taken to task for an irrational, ungrounded and illegal change to their procedures manual allowing the probable spread of dioxin contaminants into the coastal waters off Vietnam, very few guessed the extent to which they would fight this.

Remember, this is all about where an herbicide ends up after it is sprayed... or at least, that is the underlying question. It deals directly with a statement of scientific fact. That is a point not lost on them. It is the reason for them to be running scared.

Enter Jonathan Haas
Commander Jonathan Haas (USN Ret.), a Blue Water Navy veteran now disabled with diseases attributed to dioxin contamination, was successful in having his challenge to the Board of Veteran Appeals brought before the Court of Appeals for Veterans Claims (CAVC). Blue Water Navy (BWN) is a term that has come to represent Navy, Coast Guard and Marine contingents who provided vital support to land-based troops yet were in large enough vessels that they could port out of places like Japan, Okinawa or the Philippines and were therefore never required to disembark onto the Vietnamese mainland.

Although they never had "boots on the ground" in Vietnam, a disproportionate number of these sea-going men, who were very often in close proximity to the shore, became disabled with diseases that have been attributed to dioxin contamination. In many instances, the percentage of men showing symptoms of, and eventually dying from, such diseases was unmistakably high; they had to have been exposed to the demon component of Agent Orange, dioxin. (See Further Research at (

After decades of studies giving evidence that certain specific diseases were more likely than not caused by Agent Orange, the US Government allowed the Department of Veteran Affairs to draw up a list of a few of these conditions. ( This list comprised the diseases for which the VA can provide compensation in the form of medical care and financial assistance to the thousands of Vietnam veterans suffering from those diseases. And there are many more that have never been put on the VA's list.

Since the VA, or anyone else, could not prove absolute exposure of the veterans to Agent Orange dioxin, a procedure was put into place whereby all veterans who served in Vietnam, on water or on land, were simply presumed to have been exposed. This relieved the impossible burden of each veteran needing to correlate their presence in Vietnam with an incident of Agent Orange application to the jungles of Vietnam.

This process of "presumptive exposure" compensation was never a smooth and straight forward operation, but it did help thousands of veterans to be treated for their disabilities and compensated for money lost to unemployability and money spent in reconstructing their lives and their physical homes to accommodate for their physical disabilities and for the years of sickness and pain they experienced.

This presumption of exposure was initially applied to all veterans who served in the Vietnam War, either in combat or combat-support roles, whether they served in areas absolutely known to be many miles away from any areas that were sprayed with Agent Orange, or whether service was performed by land, sea or air. In February of 2002, the VA announced that any veteran who had not stepped on the ground of Vietnam, regardless of how close to that ground the veteran might have been, and regardless of their current or future medical condition, was ineligible for presumptive exposure and the benefits provided by that. The case of Commander Haas was appealed to the Federal Circuit Court by the VA itself after the Veteran's court (CAVC) ruled in Haas' favor. This court case is now under deliberation, and it challenges the VA on this "class exclusion."

The VA was ruled against by its own Court, the Court of Appeals for Veterans Claims. These people actually work for the VA. But they didn't actually rule in favor of the veteran; they ruled against the VA's initial attempt at establishing a bullet proof regulation to support Imperative One. In fact, the CAVC ruling contained the precise recipe for going back and changing the manner in which the wording was set forth as legal VA regulation. The VA then appealed this ruling to the Federal Circuit Court. That delayed things nearly a year, and the actual presentation of the case on its face, as a stand-alone legal performance, was a somewhat pathetic performance. But it accomplished exactly what the VA set out to do: set the stage for the implementation of regulations to support and defend Imperative One.

The DVA began hedging its bets early on, greasing the skids, calling in favors. They were running scared and they jumped through hoops. While the written briefs were being reviewed by the Federal Judges, prior to the oral arguments, a curious thing happened. The White House submitted legislation to the Senate Veteran Affairs Committee Chairman Daniel Akaka which would make, by act of Congress, the exclusion of the Blue Water Navy a Federal Law, ending the argument that still sat in review on the Federal Bench.

Here pops up a note from the White House accompanying a fully written legislation right into the hands of a long time supporter of veteran causes, being a WWII veteran himself. But rather than stick to his well founded record of veteran support, Senator Akaka caved in. Under Pressure? Or offered a carrot? It really doesn't matter. The deed was done. A Bill was sponsored that would not only cut off benefits to disabled American veterans, but would also open the door for other more sinister actions by the Department of Veteran Affairs.

Is there anything that Senator Akaka can do at this point in time to redeem himself? Well, we won't take final responsibility for passing judgment on the man's soul. But he can regain a large bit of veterans' respect and continued support by sponsoring "The Vietnam Veterans Fair Compensation Act," ( a Bill written and submitted by the Blue Water Navy Vietnam Veterans Association and sent to him and to every other member of the Senate Veterans Affairs Committee via fax a dozen times over in the past several weeks. He can "extend a courtesy" to patriotic Americans and fellow veterans by standing up for them when they need him the most. That might even bring him a damn sight closer to his ultimate redemption. That torch hasn't gone out yet. It is sitting on his desk. He can still grace the Senate floor by doing the right thing. He still has time, but it is slipping away fast.

Now, while the Haas Case is still in deliberation by Judges of the Federal Court, DVA made their latest desperate move. They announcement in the Federal Register that they were going to fiddle with the rules so that, win or loose with Haas, they would still be able to absolutely limit presumptive exposure to the geographic outline of the country of Vietnam. If they had confidence that their case was strong, this wouldn't be necessary. But we can surely take it as a sign that the DVA themselves realize the weaknesses of their arguments and the poor presentation of it in Briefs and Oral Arguments as they prosecuted the case.

The announcement in the Federal Register and the public response period is a total sham for several reasons as mentioned earlier, although admittedly it is used by many government departments in similar ways for similar purposes. They have requested public comment during a specific period of time. They are not doing this out of the goodness of their hearts. They are doing it because Federal Law requires it. But what possibly can come out of this?

If they "accept" any argument and eventual action contrary to what they have argued in the Federal Circuit Court, they find themselves in the untenable position of being self contradictory. They also can't take any recommendation that counters the position that is still in deliberation by the Federal Judges because that would negate, by logic and possibly by law, the entire procedure that they've just been through in appealing the ruling of the CAVC. It wouldn't do to have the court rule in their favor on an issue they no longer espouse.

So why all the fuss? Is the Blue Water Navy some special enemy to them and is this their way of getting even or fighting back? I think not. In fact, I think the Blue Water Navy was doing a superb job in the wrong place at the wrong time.

In some of their discussions, the VA has thrown out the number of Blue Water sailors who served in the offshore waters during the Vietnam War as approximately 800,000. Then they continue by lamenting that the financial burden of compensating 800,000 more veterans with monetary and medical compensation could break the bank. But you know and I know, and the DVA damned sure knows that, of that population, only a small percentage will claim disability. So don't be fooled by the numbers and this shoddy slight of hand. They are simply running scared in an effort to plug up every hole in their pseudo-science supported contention that the spraying effects of dioxin never left the shoreline or crossed any Vietnamese boarder, just as if an invisible wall sprang up along the land boarders of Vietnam to stop the spread of dioxin dead in its tracks. How absurd!

What have we learned so far?
By Imperative One, we know there cannot be an admission in spite of all evidence that Agent Orange has the capability of traveling beyond the precise boundaries of where it was used. If this were to take place, every military base in every foreign country, plus most of the bases in the United States, would have grounds to investigate the tremendous damage our military activities have caused throughout the world. The Global Liability we are talking about here is measured in the hundreds of millions of lives. There will be new questions by and about new victims everywhere the US Military has ever built a quonset hut. We already have documentation on Laos, Cambodia, Thailand, Japan, Okinawa, and Guam. The Philippines would logically fall into this grouping, but how many others?

A veteran win of the Haas Case would strengthen the few cases where exposure has been acknowledged in other places than Vietnam. If it "got out of Vietnam," where else might it have gotten out of? This would open up a new and messier can of worms for such places as Guam, which the US Government has turned into a toxic waste land, and has consistently lied about the magnitude of this devastation. There is precise data available on Guam and its toxin measurements (") to address any doubts in these facts.

A lot of information is being uncovered and revealed regarding previously unknown facts, or at least little known to the general population, about storage facilities and even test spray areas where Agent Orange and the entire rainbow panoply of pesticides (which includes herbicides) were recklessly and irresponsibly used. These are located in the US, Canada, Thailand, New Zealand, and several more places. It is a pretty firmly established fact that dioxin traveled from all locations where it was ever known to be used. But it may come as a shock to many of our citizens that the U.S. Government has put its own population at risk, to say nothing of the foreigners. And some of those compromised foreigners are as close as our good neighbors to the north, Canada.

Previously, the Department of Defense (DoD) and the Veterans Administration (VA) have denied any knowledge of these facts. The DoD maintains their innocence in not only the use of, but actually to the contents of, Agent Orange that was produced for them by a rogue Chemical Industry that allegedly threw this stuff together without telling them what was in it. This is absolutely improbable and even untenable, and we can fairly quickly put an end to those types of rumors.

In the Winters v. Diamond Chemical case (1998), there is a good example of how innocent and unknowing the DoD actually was during the 1960s and before, and how they had the wool pulled over their eyes in this regard. The strong testimony still stands that not only did the DoD "issue[d] detailed and direct supply a certain product" and that the chemical companies "...were compelled to deliver Agent Orange to the government under threat of criminal sanctions." To read further from that case, "The Government required that Agent Orange: be produced to its specifications set forth in the contracts .... [to] consist of a 50-50% mixture by volume of the n-butyl esters of 2,4,-D and 2,4,5-T...No warnings were placed on the containers, and none was permitted by the contract specifications." (See

On Guam, the entire ecosystem of the small group of islands is not just damaged, but permanently, irreversibly and totally destroyed. ( The legislature of Guam is currently under the impression that it can negotiate with the US Government on the issue of working its way into the Civilian Agent Orange Act of 2007, when it hasn't been able to deal in good faith on any issue with the U.S. Government since we took control of their island in the early 1940s and began contaminating their island as well as their entire population. The US Government is not willing to give up such a strategic military base. It will continue to kill off the native population, as well as its own personnel, to achieve that goal. In the end, Guam will loose mightily. But Imperative One will be upheld and remain intact.

Scientific Proof
In the last write-up for the VA of the "Veterans and Agent Orange: Update 2006," the Institute of Medicine (IOM) conspicuously omitted several reports from Australian and New Zealand sources. (See Despite IOM claims that the published research papers were not peer reviewed, the research seemed to be convincing enough that the Australian Veterans Affairs Department (and, to some extent, their counterpart in New Zealand) based the recent changes in their veteran compensation packages on those reports. And that includes paying out very real money in compensation to veterans of the Vietnam War who never set foot on Vietnamese soil, but who are suffering and dying from the identical diseases as those veterans who did have "boots on the ground." The IOM, in the traditional head-in-the-sand position, very rightly concluded that they themselves could not provide a "peer review" of this work, because the Australian researchers have such glowing credentials and extensive lab time as to put the IOM to shame. So much for the IOM's dropping the ball in their mandated role of providing the VA with all available information related to Agent Orange, Vietnam and the American veteran. Did they drop the ball or was it intentional grounding?

Since neither the VA nor the IOM base much of their belief system in legitimate science, both have missed the glaring fact that the VA, regardless of it's stance on principles of law and the placement of commas in legislative documents, has absolutely no evidence to suggest that Agent Orange never moves from its pre-defined geographical area of application. They come to the table empty handed and with very bad logic when addressing the issue of spray drift, surface run-off, and particulate suspension. The thing that should embarrass all Americans is they do this in the face of scientific evidence to the contrary.

But, in the final analysis, these bunglings may not be relevant at all. What is occurring now, at the end of the Twentieth Century and the beginning of the Twenty-first Century, is a growing global awareness of how this planet has been sprayed in so many locations by a substance of hideous toxicity -- some say the worst that has ever been developed.

Running Scared
As soon as the IOM and the DVA face up to the fact that there are no natural barriers to restrict Agent Orange within the geographical boundaries of the land mass of Vietnam, they will be putting the US Government at risk in the deadliest conspiracy Planet Earth has yet seen. Agent Orange, 2,4,5-D and 2,4-T, indeed does travel on the winds and in the waters. And the stuff has had a presence on nearly every US Military base around the world. How many foreign countries are host to US Military bases? How much of the stored dioxin barrels have leached out into the surrounding environment and soaked in enough to contaminate the ground water? I suggest everybody take a quick check. In addition to this being in very bad form for how you treat your friends, it is suicidal and maniacal, and leaves a hideous legacy that may be inherited by far fewer generations than might otherwise survive to enjoy this Earth. And you wonder why the VA is running scared, scampering to do anything in its power to shut down the growing proof positive that Agent Orange just flat won't stay put once you spread it around?.

Ultimately, the US Government will be caught in its diabolical game. But what our courageous officials are scampering to do is ensure that it doesn't happen in their lifetimes. And right now, the Blue Water Navy of the Vietnam War just by chance happens to be the blameless victims who must be silenced. They are doomed to suffer and die only to save face for a group of selfish individuals and the national check book.

Despite prior contentions, our Department of Defense and agencies within its controlling tentacles very well did realize what they were doing when they authorized the manufacture and distribution of Agent Orange. They realized that they were employing a devastating chemical in warfare - they just didn't realize that the effects would end up being so widespread for so long. We have previously heard arguments that the reason the VA and other resources of the US Government are in frantic mode is because they intend to spare their very generous political allies, the American Chemical Companies, from further disastrous embarrassment and lawsuits. But the scale of this is way beyond this level. They are running scared because the global community may be ready to string up Lady Liberty.

Divide and Conquer
One other very serious potential that could arise from a VA win of the Haas Case, or a VA that can change the intent of Congress by the results of a mere Notice of Proposed Rule Making, is the concept of Divide And Conquer. If they are allowed to successfully classify the Blue Water Navy as a "new category" of veteran, they will be able to use that as precedent to pick and choose which veterans of the future get which types of benefits. They will be able to exclude any veteran from receiving full medical and compensation benefits simply by creating another sub-class of veteran, as they are attempting to do here.

Let's take a future war (or military action) as an example. In this Future War X, veterans serving on active duty, either in direct combat or in combat support, would all assume they would receive medical treatment and compensation for injuries sustained in the Future War X. But after Future War X is over and all the body bags have been shipped home, the Department of Veteran Affairs could proclaim that any veteran of the Future War X who served further than 12 miles from some arbitrary geographical point is not eligible for full veteran benefits, even though the enemy could and did detonate weapons up to 20 miles from the arbitrary point. Those veterans who were injured by those "out of bounds" detonations will be denied medical care and monetary compensation for any injuries sustained while on active duty during Future War X. Is this how you want your children and perhaps their children to be treated by your government? Does that sound preposterous? That is exactly what is happening to the Blue Water Navy veterans of the Vietnam War. They are not being given the same medical care and compensation as the troops they supported, fought along side of, and died with. This is what the heart of the Haas Case is all about.

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