September 12th, 2015
by Charles Ornstein, Terry Parris, Jr. and Mike Hixenbaugh, ProPublica
This story was co-published with The Virginian-Pilot.
To the best of his knowledge, Jim Smith never saw or handled Agent Orange on the Navy ship he served on during the Vietnam War.
Smith, 65, who lives in Virginia Beach, said:
"I never sprayed the stuff, never touched the stuff. I knew later, vets started getting sick from it, but I didn't think it had any impact on me."
It turns out, he might have been drinking it.
The realization came in 2011 — almost 40 years after his one-year tour aboard the ammunition ship Butte — when Smith was diagnosed with prostate cancer and started doing some research.
He learned that he and other so-called Blue Water Navy veterans may have been exposed to Agent Orange and other herbicides even though most of them never set foot in Vietnam, where the spraying took place.
That's because the chemicals, used to kill vegetation and deny enemy cover, could have washed into rivers and out to sea, where patrolling Navy vessels sucked in potentially contaminated water and distilled it for use aboard the ships—a process that would have only concentrated the toxin. Every member of the crew would have been exposed: Distilled water was used in showers, to wash laundry and to prepare food. It was used to make coffee, as well as a sugary beverage known as "bug juice," which flowed from fountains in the enlisted mess.
"Of all the hazards we faced at sea, I don't think the drinking water registered on anyone's list"
who's among thousands of former sailors now seeking compensation from the U.S. Department of Veterans Affairs for their ailments, which the Institute of Medicine says could plausibly be related to Agent Orange exposure, though there's no proving it.
"I was there. Agent Orange was there. Would I have gotten cancer anyway? Maybe. But maybe not."
Jim Smith of Virginia Beach says he was exposed to Agent Orange aboard the ammunition ship Butte during the Vietnam War, but the Department of Veterans Affairs doesn't compensate ailing vets who didn't set foot in country.
(Stephen M. Katz/The Virginian-Pilot)
Agent Orange contained the toxic chemical commonly known as dioxin, which has had harmful effects on Vietnam veterans. The VA presumes any vet who served on land in Vietnam or on boats in its inland waters was exposed to the herbicide, and it compensates them for a litany of associated illnesses, including diabetes, various cancers, Parkinson's Disease, peripheral neuropathy and a type of heart disease. But the agency has repeatedly argued there's no scientific justification or legal requirement for covering veterans who served off the coast.
The group of Blue Water vets — so named to set the sailors apart from their Brown Water Navy counterparts, who patrolled the murky rivers of South Vietnam — has been fighting the VA for more than 10 years. They were initially deemed eligible for compensation under the Agent Orange Act of 1991, only to have the VA change its interpretation a decade later.
The VA said it is once again considering its policy on Blue Water vets after an appeals court ordered it to do so in April. There is no timetable for a decision, spokesman Randal Noller said.
In the meantime, vets are pursuing legislation in Congress that would force the VA's hand.
"We've got the momentum on our side. And the science, too."
Smith is among more than 2,700 Vietnam veterans and family members from across the country who've shared Agent Orange-exposure stories with ProPublica and The Virginian-Pilot in recent months. A few dozen have identified themselves as Blue Water veterans.
Smith's experience during the war was typical among Navy vets: He was the personnel officer aboard the Butte, a ship that steamed up and down the southern coast of Vietnam, resupplying destroyers. They usually stayed within a few miles of land but rarely saw the shore, where tens of thousands of Americans waged a ground war.
Since being diagnosed with prostate cancer, Smith pays extra attention to staying fit.
(Stephen M. Katz/The Virginian-Pilot)
Smith, who spent another seven years in the Navy before going to work as a military analyst, had assumed Agent Orange was a problem only for the soldiers who came in direct contact with the chemical on land or those who sprayed it along river banks — "the guys who were in the thick of it," he said at his kitchen table last month.
Smith said before crooning in a baritone:
"But like the King himself, Elvis Presley, sang, ‘Like a river flows, surely to the sea ….'
"Of course our ships came in contact with Agent Orange out there. Where else was it going to go?"
The story of Blue Water veterans' exclusion from Agent Orange benefits is long and complicated, with the fight still playing out in Congress and in federal courts.
But at the most basic level, it has come down to the inconsistent placement of a comma.
One section of VA regulation broadly 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."
That definition entitles Blue Water veterans to compensation for Non-Hodgkin lymphoma, a relatively rare cancer that the VA associates with service in Vietnam and surrounding waters — although it's not made clear what specifically about service in those areas heightens a veteran's risk.
In a separate section of VA regulation — the chapter that describes who's presumed to have been exposed to Agent Orange — service in Vietnam is defined as including
"service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam."
It's nearly the same sentence, but because there's no comma after "offshore" in the second definition, a federal appeals court in 2008 upheld the VA's 2002 policy decision to exclude Blue Water veterans from Agent Orange compensation unless they can prove they set foot in Vietnam.
In a letter to the Senate Committee on Veterans' Affairs this year, VA Secretary Robert McDonald wrote that the
"VA is obligated to assess the factual and scientific basis for granting disability compensation for all claims, including those associated with Agent Orange exposure. For Veterans who served in the offshore territorial seas of the Republic of Vietnam, there is insufficient evidence to establish a presumption that they were exposed to Agent Orange, which was used over the Vietnam land mass to destroy enemy food crops and reveal enemy activity hidden by jungle foliage."
The inconsistency in VA policy is "maddening," said John Wells, a Louisiana lawyer who's spent more than a decade advocating for Blue Water veterans.
"The VA has a way of making simple things complicated. To me, it's simple: Agent Orange was mixed with petroleum and sprayed in the rivers. Diesel fuel floats. The rivers lead to the bays, and bays lead to the sea, and seawater was pulled into ships and turned into drinking water."
A 2011 Institute of Medicine report seems to support that description, at least in theory. The committee report said there was no way to prove Blue Water vets were exposed to the chemicals, but it identified plausible routes that Agent Orange could have traveled out to sea and into a ship's distillation system. Although military policy at the time recommended against distilling water closer than 10 miles to shore — where the chemical concentration would have been highest — veterans said doing so was often unavoidable, and their commanding officers routinely ordered it.
The Institute of Medicine used a theoretical model to assess the desalination process from the 1960s, which used a high-heat flash to evaporate saltwater and collect the salt-free condensation. The researchers found that the process wouldn't have removed dioxin from the water, but instead would have enriched it by a factor of 10.
The institute also couldn't rule out the possibility that some amount of Agent Orange sprayed from airplanes over Vietnam wafted out to sea. Since 1994, the Institute of Medicine, an arm of the congressionally chartered National Academies of Sciences, Engineering and Medicine, has reviewed evidence on the long-term health effects of Agent Orange and advised the VA.
Both Blue Water veterans and the VA have cited the Institute of Medicine report. On one hand, advocates point out, the report says it's possible Navy vets were exposed; on the other, VA officials note, the authors say it's possible they weren't.
Due to a lack of physical evidence, the researchers conceded that they "could not state with certainty" that any Vietnam veteran was exposed to Agent Orange. "Indeed," the authors wrote:
"the committee believes that given the lack of measurements taken during the war and the almost 40 years since the war, this will never be a matter of science but instead a matter of policy."
Based on a similar study conducted a decade earlier, which actually replicated the shipboard distillation process, the Australian Department of Veterans' Affairs made a different policy decision: It presumes its navy veterans were exposed to Agent Orange off the coast of Vietnam and compensates them for associated ailments.
Advocates estimate as many as 90,000 potentially exposed Blue Water veterans were cut off from compensation as a result of the 2002 policy change. Any veterans who had received benefits before were supposed to be grandfathered in, but at least one Blue Water veteran reported losing compensation that had been given to him prior to the change.
Veterans argue the rules are "arbitrary and capricious."
John Rossie, executive director of the Blue Water Navy Vietnam Veterans Association, said:
"I think when we get through with all of this, we'll find that there's no difference … between those who served in country and those who served off the coast of Vietnam. For years, infantry grunts who served on the ground have been watching all their buddies get sick and die from their Agent Orange exposure. I've been watching the same thing happen to guys I served with in the Navy. It's the same story, only the VA says we're different."
A pair of bills being pushed by Rossie's group would change that. The Blue Water Navy Vietnam Veterans Act has more than 260 co-sponsors in the House and 21 co-sponsors in the Senate. It would require the VA to provide presumptive compensation for any veteran who has a condition associated with Agent Orange exposure and whose ship came within 12 miles of Vietnam's coastline or barrier islands (in some places, about 90 miles from the mainland).
In Their Own Words
Five U.S. Navy veterans describe their Vietnam tours, their Agent Orange concerns and their fight for VA benefits. Hear their stories.
Sen. Kirsten Gillibrand, D-N.Y., introduced the Senate version.
Gillibrand said in testimony before the Senate Veterans' Affairs Committee this spring:
"Agent Orange did not discriminate between those who stood on boats on rivers and those who stood on boats off-shores. So why should the VA discriminate between the two?"
The VA opposes the legislation, as it has several previous iterations dating back to 2008. It estimates the bill would cost taxpayers $4.4 billion over 10 years, and the first year would cost the most — $1.3 billion — because of pent-up demand. By comparison, the VA spent $21 billion to compensate Vietnam-era vets in fiscal 2013 (the most recent year for which data is available), a figure that includes monthly cash payments but not health care services.
The Blue Water Navy Vietnam Veterans Association says extending compensation to Blue Water vets will cost closer to $1 billion over a decade.
Rossie said this year's bill has more co-sponsors than in the past, but even without congressional action, many Blue Water vets may soon be eligible for coverage. In April, the U.S. Court of Appeals for Veterans Claims struck down VA rules that denied presumptive Agent Orange compensation for sailors whose ships docked at certain harbors in South Vietnam, including Da Nang. Those ports, the court determined, may have been in the Agent Orange spraying area.
Depending on how the VA interprets the court ruling, as many as 90 percent of Blue Water veterans who entered territorial waters may be covered, Wells said, because most Navy ships that came that close to shore also docked in Vietnamese harbors. At that point, the legislation to cover any remaining Blue Water vets would cost only about $100 million over 10 years, Wells said.
But his clients aren't counting on it.
"We're going to keep pressing Congress to act. The problem is, all our people are dying now, so we're going to push forward. If we wait on the VA to make this change, who knows how long we'll be waiting."
Mark Spiegel, 68, who served aboard the attack transport Pickaway, came down with a number of different cancers after his service. Initially, no one mentioned Agent Orange as a possible culprit. He didn't apply for benefits at first because of the hostile reaction troops received upon coming home.
Spiegel, who lives in Idaho, said:
"It just wasn't a real positive kind of experience. The Navy was OK, but the reaction of the people to the service people wasn't, so it was something that I kind of stayed away from afterwards."
He now believes such compensation is essential for him and those with whom he served.
Wilson McDuffie, 70, was a postal clerk and courier aboard the aircraft carrier Bennington when it deployed to the South China Sea in 1966. Although most aircraft carriers stayed farther out to sea and didn't enter Vietnam's territorial waters — and therefore sailors who served on them wouldn't be covered under the bills in Congress — McDuffie believes he was exposed. He frequently rode in a helicopter to deliver and pick up documents and other items to and from Vietnam. Supplies used on the ship were flown in daily from Vietnam, and vets say much of the haul was coated in the chemicals.
The South Carolina resident suffers from diabetes and other ailments he attributes to Agent Orange exposure, but because he doesn't have documentation to prove he set foot in country, the VA has denied his claims for compensation. Many veterans say they lack documentation of their movements during the era because it was a time of war, and records were lost or destroyed.
At this point, after years of fighting for coverage, McDuffie's primarily concerned about former sailors suffering with more grave ailments:
"The problem is, we are all facing our mortality," he said. "My feeling is, they're waiting it out until the Vietnam veterans die and they don't have to deal with it. Because it's certainly no hurry-up to get it done for those who are suffering."
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