I took my first AO-in-Thailand case last month. Welcome aboard the U.S.S. Asknod, Ray. I guess we all gravitate back mentally to the place we served when we were over there. Even though I was in many places, both west of and on the other side of the fence north of Udorn at different times, it still was always “home” for all intents and purposes. At least that was where my checks went. This is why I have a very close affinity to others who served there. As some of you know, I’m also repping Steve from No. California on our bread and butter issue here-Hepatitis C. Steve served at Udorn at the same time I was going in and out. Funny, that’s about the same time I got my Hep C, too.
Which is where the title comes from (CSNY):
We are one person
We are two alone
We are three together
We are [four] for each other
Helplessly Hoping is what rises in my breast when I think of all the Thailand Vets who are now the new inhabitants in the back of the bus after the Blue Squids win. I lucked out and happened to keep paper proof of boots on the ground in RVN. Many others did not. We need to pull together to get this done. The VA and Congress have granted the presumption of exposure to dang near everyone in Southeast Asia except for Thai Vets. You have to win it by direct causation a la Combee v. Brown.
First of all, it seems we are the west coast distributors of snow this weekend. Tons of it. 6-10 inches are forecast. [we ended up with 17.5] Here’s the view from the asknod cockpit. The FNGs hereabouts are calling this event Snowmageddon 19. Shoo doggies. Hold on to your socks. I’ve seen it do 24″ in 11 hours on my birthday in 1989. Truth be told, we’ve suffered an immigrant invasion here in Washington in the last decade. It might have something to do with no state income tax or the multitude of problems the states below us are suffering. At any rate, seems all these Califoregon Newbies have never seen the white stuff outside their front doors- or worse- on a road. For pure entertainment, you need to take a thermos of Earl Gray, some snakebite medicine and a folding chair down to the county highway and watch the demolition derby. Dress warm, too. Its 25° out there, Pilgrim. I sure hope Punxsutawney Phil isn’t having us on this year. We’re only 41 days away from my Spring Solstice Toga Party. We just had the deck redone with new glass railings and Cupcake has the hors d’oeuvre bar planned to be set up near the fireplace. Wintry weather is right out.
Hudick v Wilkie
I was cruising the new CAVC decisions this morning and ran across Hudick v. Wilkie coming back down from a reversal at the Fed. Circus. Anything with REVERSE in red letters draws my attention. A reversal at the Fed Circus guarantees an exceptionally good read.
Here’s the mea culpa written by Judge Toth as he gift-wraps it for VLJ S. L. Kennedy’s mea culpa.
Here’s VLJ Kennedy’s original BVA Decision that provoked this tempest.
Judge Kathleen O’Malley, a gal about our age (early 60s), wrote this decision for the panel. It’s a daisy. You’ll remember she recently wrote a separate and rather scalding concurrence in Procopio for the Blue Water Squids Victory. Here, she not only reverses the CAVC but sends it back to the CAVC with instructions to instruct the VLJ to order VA Secretary Robert “Call me Bob II” Wilkie to cut a check-pronto. We often talk about “pro-Veteran” judges like St. Mary Schoelen and Friar Greenberg. Well, Saint Kathleen is up one floor on the next level at the CAFC. Nothing like having Veteran friendly folks in high places. As LawBob ‘Squarepants’ Walsh always says, “You can never be too rich, too verbose or have enough like-minded friends in the Judiciary.”
Mr. Robert M Hudick was stationed for a year at Udorn down at the bomb dump. The whole area was rarely visited except by the security personnel in the guard towers, the fence walkers with their dogs… and everyone who worked in the bomb dump or came there to pick up or deliver bombs. Lotsa bombs. Marker Rockets. Napalm. MK 82s in all flavors. There wasn’t a lot of space and it was jammed right up against the perimeter. The geographical fact a lot of these armchair raters at the VA don’t understand is that our bases (Udorn, NKP, Takhli, Ubon, Utapao and Korat) were not filled with spacious skies and amber waves of grain. They were usually long enough to sport a 10,000 foot runway, cantonments, barracks, BX, Class VI store, chow hall, the O club and the pool. And a bomb dump. The only real aircraft hangers were over in Air America and leftovers from the Japanese in WW2. After the sapper attack in 1968, we began hosing the perimeters with Agent Roundup which just happens to strongly mimic what Agent Orange, Blue, Pink, Purple, Green and White do. It kills shit. Ants. Gingjoks. Tookehs, Snakes. Monkeys. Vegetation. It’s multi-purpose stuff. Since the King of Thailand wasn’t all het up about us spraying that shit all over Thailand after he saw what happened on the Ho Chi Minh Trail, he nixed the idea. That meant the Air Force had to repackage (and relabel) the shit as a more benevolent “tactical herbicide”. That’s like repackaging napalm by calling it “Liquid Sunshine”. They sprayed quite a bit of this tactical shit down at the bomb dump (and everywhere else up to the perimeter fence) to keep a minimum 60-foot line of fire open. And the Robertmeister worked there every day for a year. When it got hot, he took off his shirt like we all did. The opportunities to get AO on you (and in you) were everywhere and not just down at the bomb dump. The entrance door of the new “Barn” barracks I usually stayed in when I was in transit was about 60 feet from the perimeter. A 30 foot wide roadway and a 30 foot strip of red clay dirt were all that separated us from the fence. To say Security Policemen were the only ones exposed beggars the imagination. The parking lot for the chow hall was jammed right up against the…yep… perimeter fence. Nothing grew there but red clay and 3/4″ minus gravel. Nothing around the taxiways, revetments or the runway remotely suggested vegetation. It was all naked red clay as far as the eye could see-even during Monsoon. It was the same whether you were at NKP, Ubon or any of the other bases-even Don Muang.
Mr. Hudick credibly reported this. It falls under Layno v. Brown in that we can report on what comes to us via our five senses. Diagnosing your Prostate problems falls to a doctor. Mr. Hudick’s problem was our old friend the M 21-1 Manual on how to Misadjudicate Claims. The long and the short of it is that the Board of Appeals Veterans Law Judge (S. L. Kennedy) started quoting the M-21 as being applicable. Then, in a follow-on decision, refusing to utilize it to grant him the presumption of credibility.
You Thailand Vets might not run into this exact same scenario vis-a-vis getting a Texas Necktie Party with the M 21 when you get to the BVA. The decision is still valuable course knowledge on how-to. There are no true presumptives for Thailand AO Veterans as there are for Vietnam Vets. If, and this is a medium “if”, you can demonstrate proximity to the perimeter outside of a magic Air Force Specialty Code (AFSC or MOS) for the Security Police Squadron, and if you have a good IMO ascribing the chances the Prostate/DM/Parkinson’s/cancer etc. as being at least as likely as not related to your extensive exposure to a “tactical” herbicide,, you will win. It’s an art form most of the time. Here, in Mr. Hudick’s case, it was a bait and switch using first the M 21 and then not. This created a major due process violation as you shall read. Mr. Phil Cushman will be proud to see his fan club is growing.
As usual, this is another feather in the hat of Chisholm, Chisholm & Kirkpatrick (CCK) and Zachary Stolz. I don’t see how he has time to do all these claims.
Lastly, thank you Mr. Hudick for being persistent and reinforcing the concept of due process.