Matthew Hill and Gregg Maxon, Attorneys at Law

Southeast Asia Other Than Vietnam February 28, 1961 – May 7, 1975 (note

the beginning date is different than the Vietnam period)

800,000 military personnel serve in SEA other than Vietnam

Thailand, Cambodia, Laos 1969 – more airmen in Thailand than

Vietnam

Herbicide Related Claims Substantial Literature

Vietnam Veterans of America – “Self Help guide to Service Connected Disability Compensation for Exposure to Agent Orange

VVA Website (www.vva.org/agent_orange.html)

VA website (www.publichealth.va.gov/exposures/agentorange/index.asp)

HERBICIDE USE Vietnam – Tactical use to expose enemy

activity. (Aerial spraying of wide area) Thailand – Defensive use to clear

vegetation on installation perimeter Thailand Rules of Engagement – could

defoliate only within base perimeters Applied directly on US installations

How Proof of Necessary Evidence Established Three steps to Service Connection

Event in Service

Current Disability

Medical nexus between the two

MEETING EVIDENTIARY REQUIREMENTS Vietnam – presumption of exposure if

boots on ground 1/9/62 – 5/7/75 Thailand – No Broad Presumption

VA concedes some veterans were exposed to herbicides

Special consideration for vets with duties near or on the base perimeter.

Proving Exposure for Airmen Serving at following RTAFBs

U-Tapao Ubon Nakhon Phanon Udorn Takhli Korat Don Muang*

AND

Air Force Agent Orange Exposure AND

as an Air Force: security policeman security patrol dog

handler member of the security

police squadron, or

• Otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence?

Army Serving at AF Bases The VA M21R, used to adjudicate

claims,used to state:

Must affirmatively state had duties near air base perimeters.

But only if there is additional credible evidence supporting statement.

Vets serving on Army Installations Members of military police units, OR Who held MP MOS, AND Who affirmatively state duties placed

them at or near base perimeter. statement showing involvement w/

fenced-in perimeter security duty, and additional credible evidence supporting

this statement

VA’s Confusion Between Presumption and Direct Evidence Frequently VA will find lack of evidence

to apply the presumption and deny.

Unavailability of presumption cannot result in per se denial.

Veteran has the opportunity to prove exposure through Direct Evidence.

Presumption v. Direct Evidence Presumption requires “positive

association.” 38 U.S.C. §1116(b)(3) Direct Evidence requires “as likely as

not” test. 38 U.S.C. §5107(b) Stefl (21 Vet. App. 120 (2007)

availability of presumption for some conditions cannot preclude direct connection of others.

Legal Foundation for Your Argument Review available VA Legal Resources

Comp & Pen Service Bulletin May 2010VA Fast Letter 09-20M21-1MR, Part IV, Subpart ii, Chapter 1,

Section H 5: (http://www.benefits.va.gov/warms/topic-compensation-pension.asp)

BVA decisions – not precedential but can be persuasive if fact patterns similar. See: 38 C.F.R. §20.1303 (http://www.index.va.gov/search/va/bva.jsp)

Case law What is the veteran competent to tell

VA:Jandreau, 492 F.3d 1372, 1376-77 (Fed.

Cir. 2007)Buchanan, 451 F.3d 1331, 1337 (Fed. Cir.

2006)McLendon, 20 Vet. App. 79, 84 (2006)

Thailand Specific References

CHECO Report – Base Defense in Thailand

Three Ring Defense Exterior perimeter Middle/secondary Close in

Page 58 - mentions herbicide use

Page 64 – mentions rapid jungle growth

Page 67 – herbicides could only be used within perimeter.

Army Field Manual 3-3Tactical Use of Herbicides (December 1971)

Paragraph 5-2: Ground Dissemination Systems

Sub-Paragraph 5-2 (d) states: “A 500 meter buffer distance should be maintained to avoid damage to desirable vegetation near the target.”

This is measured from the point spraying stopped.

How about “desirable personnel” near the target?

Current Policy Flawed Limits covered personnel by duty

location and military specialty. Focuses on duties “near” the perimeter.

Term not defined. Ignores many other reasons to be “near”

perimeter. Some small bases, everywhere is “near”

the perimeter.

Proving Your Case Issue is not about presence in Thailand

Issue is not about use of herbicides

Issue IS about exposure, i.e. being near the perimeter.

Evidence to gather Prepare specific

statement of Veterans Duties and Locations

Buddy statements (Statements of other credible evidence)

Photos maps

You are your own historian Every service member in SEA bought:

A Seiko watchA StereoAnd a CAMERA

Go through old photos Have buddies go through old photos Search base/unit web pages Google a particular base

What to Look For Photos near the Perimeter Athletic/recreational areas. Many were

located on the outer edges of installations.

Evidence about off duty activities. Many jogged on perimeter roads because it was a good running path. (And no one told us not to)

Korat Example Veteran served in

Korat from 74-75 He was a food

services supervisor Lived near perimeter Coached softball to

the local children

RAMASUN STATION

RAMASUN DIAGRAM

RAMASUN Safe Zone

RAMASUN STATION

Downstream issues Rating

Scale from 0-100% Effective Dates

Date from which VA starts paying the claim

Ratings The rating system is designed to

compensate a veteran based on how much time the veteran lost work due to his disability

38 CFR 4.1 states that a rating is correct when it reflects the “loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.”

Effective Date Rule: only go back to date that current

claim was filed In this situation, you can go back to the

date of the earliest claim filed for these benefits

VA admits that Checo report was not available to veterans that previously had filed clailms