Dec. 8, 2023
Never again will one generation of veterans abandon another
An organization born from rejection accomplished a lot of legal successes.
An article published earlier this year in the Wall Street Journal, the 50th anniversary of the U.S. pull-out from Vietnam, titled "Vietnam War Veterans Deserve an Apology" mentions a Joint House Resolution that begins: "To acknowledge the courage and sacrifice of veterans of the Vietnam war and formally apologize for the treatment they received upon returning home." Included among those who gave returning Vietnam veterans the cold shoulder were many traditional veteran organizations, unsympathetic and unconcerned with the issues of those who served in Vietnam.
In January 1978, a small group of Vietnam vets went to Washington, D.C. in search of support. They soon realized they needed to advocate for themselves because Congress would only respond to political strength. By 1979, that small group began calling itself Vietnam Veterans of America, VVA. But neither Congress nor their nation were interested.
The founding principle of VVA is, "Never again will one generation of veterans abandon another." Its Constitution states among its purposes: "To eliminate discrimination suffered by Vietnam-era veterans."
It wasn't until years after the war, when American hostages returned from Iran in January 1981, that Americans began questioning why there were parades for the hostages but not for Vietnam veterans. Membership in VVA grew steadily after that. And the public began to recognize Vietnam veterans in a physical way.
The first part of the Vietnam Veterans Memorial, The Wall, was dedicated in the National Mall in 1982. A statue of three soldiers was added in 1984. The last addition to the Memorial, the statue of three nurses tending a wounded soldier, was dedicated in 1993.
Today VVA has 90,000 members. I am one of them.
VVA's legal efforts over the past decades demonstrate how important a veteran organization, dedicated to all veterans, can be. This article will discuss just a few of VVA's legal endeavors and accomplishments.
Vietnam Veterans of America Legal Services
In 1983, VVA founded Vietnam Veterans of America Legal Services to provide assistance to veterans seeking benefits and services from the government. It provided veteran representatives who acted as advocates. It also published the Viet Vet Survival Guide, known as the most comprehensive manual ever developed for veteran service representatives.
The preface to the guide has the lyrics to Bruce Springsteen's "Born in the U.S.A." A chapter on where to go to seek assistance begins with John Lennon's and Paul McCartney's lyrics:
Help! I need somebody
Help! Not just anybody
Help! You know I need someone
The Vet Center System
VVA was largely responsible for the legislation that established the Vet Center system, Pub. Law 96-22; 97-306. Vet Centers began in 1979 out of recognition that a significant number of Vietnam vets were experiencing readjustment problems when they transitioned back into the civilian world. Vet Centers, staffed by mental health professionals and social workers and are community based, are operated by the Department of Veterans Affairs, VA, formerly known as the Veterans Administration. They provide counseling and psychological services.
While they began to help Vietnam vets, Vet Centers are now open to most other combat veterans and their families.
Judicial review of the VA
For many decades, the VA luxuriated in isolation. No court questioned its denials of veterans' claims. Scholars and others involved with veteran affairs agree the credit for making judicial review a viable political issue belongs to one organization, VVA.
In Traynor v. Turnage, 485 U.S. 535, 1988, VVA filed an amicus curiae brief, including in its argument that the VA should not escape judicial scrutiny. The United States Supreme Court agreed that federal courts could examine whether or not the VA violated the particular federal statute involved in that case.
After Traynor, VVA continued its quest for judicial review of the VA's decisions denying veterans' claims. Its campaign for the establishment of an appeals court outside the purview of the VA was based on the pervasive public sentiment that every American has a right to his or her day in court.
Powerful and long-standing veterans service organizations such as the American Legion and Veterans of Foreign Wars opposed the development of a new court or advocated judicial review in only limited circumstances. Their hostility toward Vietnam veterans is seen in American Legion's Robert Lyngh's opposition statement to VVA's support for a new court: "Some of the proponents of ... judicial review as far as we are concerned represent nothing and nobody and they haven't done anything that is visible to people in general to develop any credibility that would entitle them to take the position they do."
A Connecticut Law Review article suggests that the hostility toward VVA's mission for the establishment of a new court was not only that they were biased against claims made by Vietnam veterans, but also because many members of more established veteran organizations held positions of importance within the VA.
In late 1988, the new court was established. It is now known as the United States Court of Appeals for Veterans Claims, CAVC. CAVC reviews the VA's Board of Veterans Appeals. Also, the Federal Circuit reviews decisions of the CAVC under a de novo standard, and veterans have 90 days to petition the United States Supreme Court for a writ of certiorari.
VVA worked non-stop to compel medical coverage for Vietnam vets damaged by Agent Orange
During the Vietnam War, Agent Orange was used as a tactical herbicide by the United States military to clear leaves and vegetation for military operations and to prevent the foliage from providing food and cover for the enemy. It was regularly sprayed over the rural landscape of Vietnam from 1961 to 1971.
The issue of whether or not an injury is service related is sometimes an easy burden for a veteran seeking VA benefits. But when the VA denied all Agent Orange-related disabilities, except a peculiar skin condition known as chloracne, proving causation became a formidable task for veterans.
●Nehmer v. U.S. Veterans' Administration
In Nehmer v. U.S. Veterans' Administration (118 F.R.D. 113, (N.D. Cal. 1987); 712 F.Supp. 1404 (N.D. Cal. 1989); 284 F.3d 1158 (2002); 494 F.3d 846 (2007); 2020 WL 6508529), VVA and a class of veterans who were exposed to Agent Orange challenged the VA regulation that recognized only that single skin condition as compensable. The action was filed in 1986 and continues to the present time. In 1991, the attorneys were able to negotiate a consent decree requiring the VA, whenever it recognizes emerging scientific evidence shows a positive relationship between Agent Orange exposure and a new disease, to identify all claimants with the disease and pay their claims.
Over the years, a positive association between Agent Orange and numerous diseases has been recognized. They include Hodgkin's disease, multiple myeloma, prostate cancer, respiratory cancers, peripheral neuropathy, ischemic heart disease, Parkinson's disease and chronic B-cell leukemias.
●In re: Agent Orange Product Liability Litigation
There was a class action against various chemical companies related to veterans who were injured as a result of Agent Orange. Just before the 1984 settlement was approved, VVA requested access to all sealed Agent Orange discovery materials. A federal trial judge ordered the materials to be unsealed.
In In re Agent Orange Product Liability Litigation, 821 F.2d 139 (1987), the Second Circuit Court of Appeals affirmed the lower court's lifting of the protective orders. Thus, it was VVA that prevented the chemical companies from keeping their documents under seal.
●Blue Water Navy Vietnam Veterans Act of 2019
After the VA was forced to provide benefits for diseases resulting from Agent Orange, the agency began denying claims to those who couldn't provide proof they were "boots on the ground" in Vietnam, including some 90,000 claims by veterans who had served on the waters in and around Vietnam.
VVA was strongly in support of a statute requiring the VA to provide benefits to sailors and Marines who served on Vietnam waters. VVA's executive director for policy and government affairs testified before the U.S. Senate. He explained that during the war, some 20 million gallons of Agent Orange and other toxic chemicals were sprayed across the former South Vietnam, including coastal areas and along the banks of rivers and streams that empty into the South China Sea. The defoliant wound up in harbors and coastal byways heavily trafficked by military as well as civilian vessels. It was virtually certain that contaminated seawater was taken in by ships to be desalinated into water for drinking, cooking, and showering. He explained that many of the sailors and Marines aboard those vessels were afflicted with the same maladies as were "boots on the ground" Vietnam vets. He quoted one veteran suffering from cancer who said, "I died in Vietnam and didn't even know it."
The Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, 133 Stat. 966 (2019) extended the presumption of exposure to Agent Orange to veterans who served in the offshore waters of Vietnam.
VVA has never abandoned veterans of other wars
In many legal efforts not specifically or primarily involving Vietnam veterans, VVA has lived up to its founding principle of not abandoning veterans of other generations. Here are a few examples.
●Walters v. National Association of Radiation Survivors
In Walters v. National Association of Radiation Survivors, 473 U.S. 305, 1985, the plaintiffs were veterans who participated in atomic bomb tests. They suffered cancer and other ailments resulting from radiation.
The issue in the case involved lack of legal representation for veterans. Under federal law, there was a $10 fee limit for all work performed by an attorney in representing a veteran pursuing service-connected death and disability claims before the VA. Because of the fee limitation, the plaintiffs were unsuccessful in retaining lawyers to represent them in cases that had extremely involved causation issues. A federal district court entered a nationwide preliminary injunction barring the Secretary of the VA from enforcing the fee limitation.
VVA filed an amicus curiae brief when the case reached the nation's highest court. In its brief, VVA argued that allowing veterans to hire lawyers subject to the $10 fee limitation is like being free to drive an automobile as far and as often as one desires on a single tank of gasoline.
But the United States Supreme Court wasn't convinced. It held the fee limitation did not violate the Due Process Clause or First Amendment Rights. Though unsuccessful, VVA later pursued legislative change. Under today's law [38 U.S.C. § 5904(c)(1)], attorneys may not charge or be paid for services provided in connection with the filing of a claim for VA benefits. Once the VA makes its initial decision, however, a fee may be charged for services provided pursuant to that initial decision. There is no fee limitation with respect to proceedings before a court.
●Vietnam Veterans of America v. Central Intelligence Agency
In Vietnam Veterans of America v. Central Intelligence Agency, 811 V.3d 1068 (2016), VVA was a plaintiff. The case arose from the CIA's human experimentation programs that began in the 1950s. Some of the experiments determined levels at which chemicals would cause casualties; others involved psychological warfare and mind-control methods. In these experiments, tens of thousands of members of the United States armed services were intentionally exposed to a range of chemical and biological agents.
The Ninth Circuit Court of Appeals held that the Army has on ongoing duty to provide medical care, and that the district court did not abuse its discretion in entering an injunction to enforce that duty. It further held that the fact that the VA provides medical care to some former test subjects does not relieve the Army of its duty.
●The PACT Act
The PACT Act of 2022 [Pub. L. 117-168, Title 1, § 101] expands VA health care and benefits for Veterans exposed to burn pits and other toxins. It was necessary because individual veterans were not able to meet the exacting standards necessary to prove the cause of a toxic condition or disease. VVA strongly supported its passage.
VVA's president, Jack McManus, stated that, while it is not perfect, it was long overdue. He said it will allow veterans of so many generations to receive care and treatment for toxic wounds of war without having to endure the mistrust and denials that Vietnam veterans were forced to endure.
A little about burn pits. Overseas bases necessitate the management of waste. Burn pits have been used in recent wars. Only specified articles were meant for incineration, but in In re KBR, Inc., Burn Pit Litigation, 893 F.3d 241 (2017), there was evidence that "if something was not specifically prohibited, then it was allowed to be burned." Jet fuel, old jeeps and who-knows-what-else were thrown into those giant pits.
In the short term, those exposed to burn pits report irritation of the nose, eyes and throat, headaches, nausea and difficulty breathing. But severe respiratory problems, various kinds of cancers, including brain cancer, developed in others.
This legislation will likely prevent more current veterans of the Gulf War, Iraq and Afghanistan suffering from burn pit damage from having to spend almost a half century in court battles, as Vietnam veterans have had to do to prove causation in Agent Orange cases.
As part of the PACT Act, all those enrolled in VA health care can now receive toxic exposure screening at VA medical centers. Also, the Camp Lejeune Justice Act of 2022 was added as one section of the PACT Act. That section creates a new federal cause of action for anyone exposed to contaminated water at Camp Lejeune for at least 30 days between 1953 and 1987.
●Torres v. Texas Department of Public Safety
Torres v. Texas Department of Public Safety, 42 S.Ct. 2455 (2022) concerns Le Roy Torres. While serving in Iraq, he was exposed to toxic burn pits, which left him with constrictive bronchitis, a condition that narrowed his airways and made breathing difficult. When he returned to his job as a Texas state trooper, he requested an accommodation for his condition. Texas refused. Torres sued Texas under USERRA, the Uniformed Services Employment and Reemployment Rights Act, 38 U. S. C. §4301 et seq. He lost all the way through the Texas courts. When Torres reached the Supreme Court, VVA filed a brief in his support.
The Supreme Court rejected the argument that Texas could invoke sovereign immunity as a legal defense to USERRA, a federal statute, stating: "Upon entering the Union, the states implicitly agreed that their sovereignty would yield to federal policy to build and keep a national military."
With his Supreme Court victory in hand, Torres was able to take his case to a Texas jury. In late September 2023, the jury awarded him $2.49 million against Texas and its officials for violating USERRA.
Many who served during the Vietnam War have already passed, requiring a decision whether or not to dissolve VVA at some point. The October 2023 edition of VVA's official publication states that at the recent national convention, VVA delegates resolved not to discontinue the organization. That action cemented that fact that VVA would be a "last-man standing" organization.
The Viet Vet Survival Guide, published in 1985, states that "VVA is learning to be a new kind of veterans service organization, independent of the cozy relationship that some other veterans organizations have had with the primary agency responsible for veterans programs, the Veterans Administration." Indeed, VVA created something new and very important to veterans. Perhaps the best way to describe what VVA did is to quote Mahatma Gandi: "First they ignore you, then they laugh at you, then they fight you, then you win."