I listened to the oral argument of Jack L. Stover vs. VASEC this morning and, as usual, grow increasingly concerned about how to argue a case/appeal in the new AMA World Order. I discussed Andrews in a previous blog a week ago. Andrews has a dual import. The primary takeaway is when do you reach equipoise in this business? Who’s the line judge who blows the whistle and says you finally crossed it? Case law suggests you have to ingest the entire case before you get out the scales and start weighing it. But why can’t the evidence be so overwhelming that there really can never be a cogent denial argument; that the pros so far outweigh the cons that the Veteran’s case should never have been in doubt? Check out the oral.
The second argument, and one I’ve gotten into heated discussions about at BVA hearings, is the admissibility of the M 21 beyond the agency level. Every BVA Veterans Law Judge (VLJ) vociferously cuts me off at the knees should I foolishly cite to M 21. This in spite of its use below for my Vets’ Texas necktie parties. So where is that transition from where a Veterans is judged by the M 21’s yardstick and found wanting and then not being allowed to use the very same yardstick as a measure in a legal discussion? Welcome to the Stover oral argument. Pop a cold one and listen to some good logic. Well, at least logic as you and I would define it. It’s about time someone called bullshit on VA’s definitions of their definitions.
I’m ecstatic to finally see this conundrum discussed openly and watch the VA OGC counsel squirm uncontrollably and baldly say “Affirm as we say, not as we litigate.” to the Court. Mr. Vichich asking for Chevron deference at the Court when the BVA refuses to even discuss it at the Board goes over in Judge Mike Allen’s mind as about as logical as screen doors in submarines. Distilling its essence, it appears the Secretary desires to employ the M 21 at the agency level and then forbid its dissection at bar later on appeal whilst loudly exclaiming stare decisis and immutable law. This ignores the whole ex parte ‘Trier of Fact’ formula of de novo review. The M 21 is an assembly manual and little more. To say it can comprehend every instance of military stupidity and expertly apply the correct legal standard of review is fools gold. You would know that if you had served in the military. Military stupid is a speshull kind of stupid and takes years of service and rank to attain. The best courts in the land routinely have to change precedence to stay on top of new or revised legal epiphanies. The Liquor Prohibition Amendment was, and still is, a classic example. Besides, if the Court remands or reverses 74% of what crosses its desk, then VA’s 98% accuracy and the M 21 are suspect tools for any measurement of claims accuracy.
AO in Thailand
We’ve put the Blue Water contretemps to bed. We’ve watched with yawning awe as Thailand Vets have become the last AO orphans of the Southeast Asian Olympics. I reckon sooner or later Cambodian and Laotian Vets will eventually be knocking as well. Procopio resolved the last of the Navy arguments about where to draw the line. But now we have a new line to ponder-one that’s a dang sight less than 12 miles out. We’re talking feet. Let that sink in. Mere feet. It’s like a macabre comedy horror story out of the TV series Get Smart™. Missed it by thaaaaaat much, Airman 99.
I’ve often thought of the argument for AO exposure in Thailand to be a simple one. One far simpler to argue logically than just on a case by case basis. The presumptive exposure should be even more ironclad than for a true boots-on-the-ground Vietnam Vet. Here’s why. A real Vietnam Vet -one who set foot (not stepped foot) in the Republic of Vietnam often was stationed in places where AO was never sprayed. Tan Son Nhut Air Base in Saigon was a classic example. The one place where so many touched down on a World Airways flight on their way to Bangkok and points north in Thailand, was rarely-if ever- sprayed. Many have tried to use this as their 30-minute refueling presumptive entitlement. Spot applications of weeds growing up through PSP here and there would have been done with a hand sprayer- if ever. The twin exhausts of a taxiing F4 pretty much dissuaded any hope of vegetation. Of course, few in the military ever conceived of a cataclysmic event like the Tet Offensive in January-February ’68.
Furthermore, in-country troops in the field had a less than 50-50 chance they’d be in an active spray operation over them during an offensive operation. Why? Because it is pointless to spray during an assault. Nothing is accomplished by spraying for at least 5-8 hours that might improve sight lines in a dense jungle setting. It had a far more dramatic effect on the upper layer of a jungle canopy. A good defoliation job would take three applications to effectively percolate down to the jungle floor to kill growth. Most military operations were air assaults into previously sprayed areas- not land operations where active overhead spraying occurred during an assault on an enemy area of operations.
I always get a bang out of desperate Navy Vets claiming they encountered AO-soaked fighter jets upon their return after landing on aircraft carriers. Even Ol’ Mr. Procopio tried that one. Sorry Charlies. Air Force Ranch Hand missions were well-planned in advance and briefed in NOTAMs. If one had even been near your grid coordinates, it would be in the FRAG order and the call sign/ contact freq. listed. It’s not like an A 4J rolled in on a HCM strafing run loaded for bear with nape/CBU and discovered himself engulfed in a mist of AO from a $1.23 who just stumbled upon the air strike out of the blue. Never gonna happen, GI. I’ve been there. I know better- even if VA doesn’t. Spray Days and Spray Locations were about as secret as the 4th of July.
On the contrary, serving on a base in Thailand was much like being in an extremely large swimming pool with all the edges of the pool sprayed and contaminated- including the egress ladder. The wind drift coefficient would also come into play. Imagine your hootch about 40 feet away from the perimeter fence and a 25-foot laterite roadway bisecting it. There was still a dirt strip (formerly vegetation if unsprayed) between the road and the fence. We used it to play catch, throw a frisbee or jog on the edge of the roadway itself. Try defining “on or near the perimeter” in that context. The VA, in Jack Stover’s case, seems to demand he be close enough to physically touch the fence 12 hours a day. I’ve defended Vets for Udorn and Takhli AO exposure and won. My guys merely took smoke breaks while leaning against the fence. Some were forced to do Augmentation Duty and man towers on the perimeter 12 on and 12 off for a month. Hell, the Udorn Enlisted’s Chow Hall backed up to the perimeter fence. You could barely drive a pickup through there. You had to catch the shuttle bus there to get over to the Air America side of the base…twice a day. Doesn’t all this fall into “in the course of their regular duties”? Doesn’t sleeping adjacent to it for a year? Where exactly, is this official demarcation of ‘on or near’? 5 feet? 10 feet? 6 inches?
Thai Vets spent one year virtually encapsulated on a base with a few forays outside the wire to “pai teo” (seek pleasure) when possible in the local towns nearby. Based on manpower and time off, they might be lucky enough to get into town one night a month which would mean crossing over out of the ‘pool’. Wouldn’t that count as an additional exposure? No. The reason is it wouldn’t be in the normal course of your job -ergo- any exposure would not qualify. See how slippery this M 21 logic is? You can swim in this hypothetical pool of herbicides without ever actually coming into contact with it much as if you had donned a magical raincoat impervious to absorption. It couldn’t possibly attach to you unless you physically rubbed against the fabric of the cyclone fence with your flesh-but only if it were in the course of your usual duties. Right. The fact that our hootches had screens for windows/doors is immaterial to whether the wind blows in VA’s mind. I guess magic gnomes came by on breezeless nights when we were absent or sound asleep and carefully sprinkled their AO dust on the perimeter fences, being careful not to spill any outside the magic ‘on or near’ distance. Who woulda thunk it? VA, apparently.
Reading the BVA denial, I get the impression that the thrust of the decision is to head off any future assaults on the “security policeman or dog handler” myth. Remember, this is CCK- the Big Boys- representing Mr. Stover. The Judge said as much when he opined that if the most logical standard of presumptive exposure were to be employed that dang near everyone would qualify. Well, duh. Isn’t that pretty much the metric employed for Procopio out to twelve miles? Brown water Vets? Phan Rang AB Air Force Vets? Vung Tau R&R Beach Vets? I’m guessing VA is shitting their britches at the dismal prospect of hundreds of thousands of us Air Force untermenschen storming the gates before we die and throwing off the beancounters’ estimates of how many they owe Nehmerbucks to. Seems this is as good a place as any to dig in your heels and fight the Vets on this. Check out this logic:
Similarly, the Board finds that the Veteran’s explanations of being near the perimeter due to the placement of his living quarters (hooches), visiting the MARS shortwave radio station once or twice a month, or entering and exiting the base are insufficient to establish that the Veteran was exposed to herbicide agents. If these
explanations were true, everyone assigned to these hooches, visiting the MARS shortwave radio station, or entering and exiting the base would have been exposed to herbicide agents, even if they only visited such areas once in a long while. Again, this view would create a slippery slope of line of reasoning that is not supported by VA law. The herbicide agent presumption of service connection has not been extended to all veterans who served at a RTAFB in Thailand. Exposure must be shown by at least an equipoise of the evidence standard. The statements provided by the Veteran do not establish, to an equipoise standard of evidence or greater, that he was exposed to Agent Orange while serving at the RTAFB in Thailand.
Hooo doggies. What if these explanations are true? Holy shit, Batman. Kinda funny how that slippery slope is only found in Thailand and nowhere else on the Indochinese peninsula-including the South China Sea now. It’s also kinda pathetic funny the Secretary should mention this isn’t supported by VA law when he avowedly insists the M 21 is not dicta at the BVA. So, not only do we have a shape-shifting herbicide that has a singular, magical affinity for galvanized, cyclone fence structures but also a set of ‘on or near’ M 21 manual interpretations which purport to be VA law but cannot be used to support a BVA denial in spite of being cited to and used as VA law to deny with. Poor Jack Stover and almost every other Air Force Vet who served over there don’t know whether to shit or go blind. It’s the M 21 ‘on or near’ Catch 22. I’m surprised the M 21 doesn’t also add “in addition, ‘on or near’ only applies to Veterans born at night on a Thursday in odd months.”
One thing few understand and for damn sure the VA does not get is this. We were few in number at these bases. We had to supplement our security forces with extra troops we didn’t have. Thai Army guards slept on the job or smoked dope. The only way to safely defend our bases was to create an augmentation duty requirement of one month each for the FNGs. Unless your AFSC (MOS) was critical, you were headed for one month of service on the perimeter-in the shit- for 12 hours on and 12 off, six days a week for four weeks. You ate, shitted and slept for the 12 hours you were not ‘in or on’ the perimeter. Somehow, this doesn’t equate to being in or on the perimeter in the course of your regular duties because, using the above logic, it was probably “once in a long while”. Somehow, for the next eleven months, you wore your magic invisible raincoats and the nasty herbicide could not attach itself to you successfully. And the best part was you didn’t even need to get vaccinated, wear a mask or stand six feet back from everyone-just that nasty perimeter.
The biggest VA whopper we are expected to swallow is the discussion by our good VLJ that if a body had been exposed to this crap, why, it would logically be in our STRs just like every time we cut ourselves shaving would mean a trip to sick call for a band aid.
I always get a max bang from Judge Mike Allen’s Devil’s Advocate game when he asks the VA OGC victim how he would interpret what the Secretary is trying to have affirmed. Isn’t the M 21 implicated in a discussion if the BVA VLJ draws heavily from its parsing of what constitutes on or near? Is the M 21 off limits for discussion like the VASRD is? Can there be a non-regulation or non-statute that controls but cannot be held up to the light for inspection or determination as to its correct application of a legal standard of review? Pray tell, explain the Law of the Case to us, Secretary.
Stover jurisprudence may well turn out to be an interesting explanation of the “how many faeries can dance on the head of a pin” paradox. Oddly, Mr. Vichich sees no legal ambiguity in being unable to defend (let alone define) what physical distance ‘in or on’ might entail any more than prospective Supreme Court wannabes cannot define what a “woman” is nowadays. Mark my words. Pretty soon we’re gonna be packin’ Miriam Webster dictionaries up to the Big House at 625 Native Americana Ave. NW for our briefs. Seems the proper thing to do would be to just piss on the fire and let the Thailand Vets in to the Nehmer Party. Gez. How many of us can there be? I reckon ol’ Denis the Menace is figuring the Korean DMZers, the Anderson Island boys and just about everyone else aren’t going to be too far behind us. Denis can’t have that, now can he? I heard that EHR Cerner Medical computer fiasco out in Spokane is going to eat up oodles more billions before they give up and go back to VistA. So many Vets to deny. So little time to do it in before they die anyway.
And I believe that’s all I have to say about that.