November 01, 2021

Credit: Dayton Daily News, Thomas Gnau

Vietnam War-era veterans who served in Thailand say they’re still fighting.

Veterans who served in Thailand have long contended they face a higher bar in winning Veterans Administration (VA) disability benefits claims, having to clearly demonstrate they were exposed to Agent Orange or other harmful herbicides while their fellow veterans enjoy a presumption that they were exposed.

Several bills in Congress purport to take aim at the problem. Among them: The Veterans Agent Orange Exposure Equity Act, the Cost of War Act, and others, including the Fairly Assessing Service-related Exposure Residual (FASTER) Presumptions Act, also dubbed the “FASTER” Act.

A Maryland Democrat, David Trone, a member of the House Veterans Affairs Committee, has introduced the latter piece of legislation.

“We’re going to try to right a wrong,” Trone said.

‘We’re old news to them.’

As some Thailand veterans see it, the VA places an undue burden of proof on them to demonstrate they were harmed by Agent Orange, in some cases asking for photographs or other evidence of physical proximity to harmful herbicides.

It’s not a burden shared by veterans who served in Vietnam or in the Navy.

“If you set foot on a land mass (in Vietnam), you’re entitled to a presumption” that you have been exposed to herbicides, Rhode Island attorney Robert Chisholm said in an interview. That presumption has been expanded to blue-water Navy veterans.

But not to veterans in Thailand — at least, not yet.

In October 2020, the VA denied Xenia resident and Thailand veteran Paul Skinner compensation for what Skinner believed was Agent Orange exposure, with the VA informing Skinner in a letter: “Your personnel records still fail to show that during your duties you were exposed to Agent Orange or tactical herbicides while performing daily duty assignments at Udom (Royal Thai Air Force Base).”

Skinner acknowledges that he can get health care from the VA. But he sought (and seeks) compensation for pain and suffering. Skinner, who has fought prostate cancer since 2018, has gone through 44 treatments of radiation therapy. He has to apply and use a catheter twice a day, something he expects to do for the rest of his life.

“We’re old news to them,” Skinner said of the VA.

Arnie Harmon, a Columbus-area veteran who served in Thailand, filed for compensation or a monthly stipend some 15 years ago at the urging of one of his physicians. “I’m spending out of pocket about $6,000 to $6,500 a year in medications,” he said.

“You submit a claim,” Harmon said. “They (the VA) will grant it, (or) they’ll grant it partially, (or) they’ll deny it, which is probably about 80 to 90% of the Thailand veterans, they have been denied. Some have won on appeal.”

This letter rejecting Skinner’s claim cited an Aug. 2015 memo from the Air Force Historical Research Agency (AFHRA), a memo that veteran Robert McHenry, a friend to Skinner and others, fought for years.

Centerville resident McHenry died in July 2021 at the age of 74. McHenry worked for years to correct what he argued was an error in that memo, which held there was no evidence of tactical herbicides having been used at American bases in Thailand.

The AFHRA memo said that although use of commercial herbicides is documented, the Air Force archivists found no mention of the transportation, payment for or use of any tactical herbicide to control vegetation on Air Force installations in Thailand.

“Bob has been fighting this letter since it came out,” Skinner said.

“They used that letter repeatedly to deny claims,” Mary Flodder, McHenry’s widow, said in an interview.

Skinner said the denial was frustrating. But he trusted McHenry to make the historical case for him and veterans like him.

“He (McHenry) was a walking encyclopedia of information,” Skinner said. “He did so much research on this letter (the Aug. 2015 memo).”

“These men are now in many cases in their 80s,” Trone said. “They deserve quick adjudication for their claim … and we cannot put the burden on the veterans who served their country.”

Trone’s bill would force these to be adjudicated this quicker, presuming that they were exposed to harmful herbicides.

But the prospects for those bills is uncertain at this point.

In the ‘spray zone’

“Everyone that was on the bases would have been in the spray zone” for the herbicides, Flodder said. “Bob was trying to get that letter rescinded at the time he died.”

Typically, the VA looks for evidence of duty near base perimeters or fence lines to establish herbicide exposure. Often fence lines were sprayed to kill vegetation that may have hid the presence of enemy soldiers.

In an interview, Skinner recalled that he was an aircraft mechanic on F4 Phantom jets while serving in Thailand. He said he worked in areas close to base fencelines and perimeters, sometimes chaining down jets to run the engines, “which would actually kick up dust and dirt everywhere around the aircraft.”

His living quarters were also close to a base perimeter, he recalled. The herbicides were in the very air, he believes.

“I guess the VA doesn’t believe the wind blows,” Skinner said.

“They (the VA) don’t give you a definition of what the perimeter is,” Harmon said. “Is it two feet from the perimeter? Or is it 500 feet? Because all the perimeters were sprayed with various types of herbicides with dioxin in it. Agent Orange is just a euphemism for many different types of herbicides. But they were all sprayed.”

A spokeswoman for the Department of Veterans Affairs declined an interview but offered to answer questions in writing.

“Unlike veterans who served in Vietnam and certain areas of Korea, veterans who served in Thailand are not entitled by law to a presumption of exposure to tactical herbicides,” the spokeswoman said. “Lack of a presumption of herbicide exposure does not prevent veterans from demonstrating through competent evidence that they were exposed to herbicidal agents and that such exposure is sufficiently related to a current disability to warrant disability compensation.”

Currently, Skinner hopes to make a case before a VA judge in perhaps a year, maybe longer.

A spokeswoman for the Air Force said neither the author of the AFHRA memo nor anyone else was available for an interview.

‘These bills have a chance’

A solution by Congress may be the best approach, some attorneys and veterans advocates say.

“My sense is these bills have a chance, but I just don’t know how good a chance,” attorney Chisholm said.

Sen. Rob Portman is listed as a co-sponsor of Senate Bill 657, which would modify the presumption of a service connection for veterans who were exposed to herbicides while serving in Thailand. The bill was last referred to the Subcommittee on Disability Assistance and Memorial Affairs in June.

A VA spokeswoman said If enacted, S.657 would expand universal eligibility for veterans who served in Thailand.

Sen. Sherrod Brown supports the Thailand Veterans Toxic Exposure Act, a version of which was included in the Senate Veterans’ Affairs Committee’s toxic exposure bill reported out of committee in May.

“Time is running out for these veterans,” Brown said in an email. “I will continue the fight to get benefits for all veterans who were exposed to Agent Orange — and other toxic chemicals — regardless of where they served.”

Questions sent to the offices of Portman and U.S. Rep. Mike Turner, R-Dayton. Turner has supported similar legislation in the past.

Harmon said his sense is that once attorneys are involved, claims from veterans who served in Thailand can be settled in as quickly as six months.

Chisholm said he and like-minded attorneys representing veterans who served in Thailand are winning these cases one at a time, but with detailed evidence, detailed arguments, detailed affidavits.

Poway, Calif. attorney Amanda Mineer recalled working on one case in which she and her team had to introduce into evidence a photo of a sailor taking a photographic selfie of himself on a ship as that ship crossed the equator, with barrels of Agent Orange nearby, visible in the photo.

The photo helped her win the case.

“That’s what we do; we get creative,” Mineer said. “That’s our job.”

“It’s still essentially a case-by-case basis,” Chisholm said. “You have to prove it.”

But proving it isn’t always possible, others say.

“Let’s be real, this was 60 years ago,” Trone said.