Picloram. Tordon 101. Agent White. It traveled under many different aliases and still does. Shucks, you can still buy this stuff. Here’s the link.  Tordon 101.  It’s sold as Crossbow®.  If you wanted to turn it into Agent White, all you’d have to do would be to add picloram which goes by the trade name Gunslinger®. You mix it 4:1 (four parts 2,4-D and one part picloram. I don’t mix it but was forced to use 2,4-D on my pastures because my neighbor  who has no horses is an asshole and wouldn’t control his tansy ragwort. To all you non-horse people, tansy is pure poison and spreads like the plague here in Washington.  

Your local Amazon is only a click away and you can dang near turn your garage into a gallery of Rainbow herbicides if you so desire- well almost.  2,4,5-T is no longer available… in the U.S. but you can see it was present at Fort Mac from the inventory. Agent Orange and it’s genre have caused more grief and death than can ever be recorded and documented. In fact, every time you think it’s going to become a thing of the past, why, another pile of 50 gallon drums shows up in a landfill in Okinawa. How did it get there?  Uncle Sam doesn’t want to know. So it shouldn’t come as any surprise that they disremember using some of these very same herbicides stateside long after they were used in RVN and Laos.

Which brings me to Mr. Alex J. Gust, and his most wonderful adventures at the Court on the subject  of herbicides used at Fort McClellan up until the late 1970’s. Some of these would still be considered part and parcel of the Agent Orange-type herbicides used in Indochina including Agent White… and thus the presumption of exposure would be met. This is an awesome read if you are fighting a herbicide exposure claim at Fort Mac or another base. Chances are they all sprayed this crap. Here’s more data.

Ft. Mac- AO Gust vs Denis

Let me elaborate. In 1991, subsequent to the ’89 Nehmer ruling at the 9th Fed Circus, those of us who had served in Vietnam got the automatic presumption we were exposed-that is, the entitlement to AO benefits without having to prove we were. The exposure included more than just 2,4-D; 2,4,5-T. It also considered picloram and cacodylic acid-both equally as nasty.  Next came the Procopio 12-mile limit Navy and Marine Vets in 2020. And now, with the PACT Act, Thailand Vets, a handful (if any) of AAM folks in Cambodia and Laos (very narrow window), and the Guam and Johnson Atoll Vets  all are presumptively exposed. All you need is medals or PCS/TDY orders proving service in those locales.

Mr. Gust, above, is a carbon copy of one of my clients for whom I’m arguing the exact same thing- diabetes mellitus type 2 and residuals based on exposure to herbicides at Fort Mac. This decision is a valuable tool for all Vets regardless the fact that it’s a single judge memorandum decision. For any who decide to use my legal musings, here’ the pertinent cite for relying on a memorandum:

Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain).

Anyway, here’s my denial and my legal brief filed at the BVA a while back. I guess it (Gust) will be recognized as applicable to my client and we’ll prevail. For the record, I submitted a dynamite IMO from my Mednick crew but VA insists no such thing as an herbicide was ever used at Fort Mac. Mr. Gust’s decision speaks otherwise.

redact RD 1-8-2021

redact filed 10182 2-19-2021

Judge Toth is a former Navy JAG. His job was to punish enlisted miscreants who drove while ETOH’d, went AWOL or deserted. He regularly met and prosecuted the dregs of the enlisted corps and some say has a noted propensity to carry that animosity and bias into his new job on the Court. I’m sure there are two schools of thought on that but it’s well-documented that JAGs, as a class of judges post service, are fairly strict and hew to the government being right more often than the Veteran. So it rolled my socks down to see the Judge not only agree  with the Vet but actually reverse the Board’s findings of fact. That’s flat out more rare than unicorn manure. You just never see it happen (unicorns taking a shit and JAG judges reversing the Secretary).

Judge Toth’s law clerks did some deep research confirming all this. Imagine using some of these six compounds in concentrations 13 times greater than what we had for breakfast in Vietnam every day. What is most important from my view is the concession of the presence of these compounds in a residual state years after spraying. This will be cut and pasted by hundreds of Vets soon and a whole new stateside industry of AO claims will benefit from this decision. Here’s the pertinent part:

“The Board reviewed all of this information but determined that Mr. Gust did not provide “competent or probative evidence that he was exposed to an herbicide agent by virtue of contact with the soil or grass during basic training at Fort McClellan.” R. at 12. The Board regarded the Mathers report as nonprobative as to exposure because its conclusion—soldiers who trained at Fort McClellan were likely to have been exposed to herbicides—was “based on active spraying of herbicide agents at that base from 1974 to 1976.

If this were a logically thought out theory, then how are we to assimilate the idea that we spent gazillions of dollars excavating Bien Hoa Airbase for residual contamination by TCDD 50 years after the last drop missed the C 123’s tank and fell onto the PSP? And it’s rumored they’re contemplating doing the same up at Da Nang Airpatch. Hellooooo?

Another thought I’ve had over the years is what happens if you went by Pelham Range merrily spraying Crossbow on Monday and a fellow worker from Civil Engineering unwittingly came by on Thursday spraying Gunslinger. Wouldn’t those two compounds have the natural proclivity to combine into a more sinister compound like Agent White? What’s more, one would think Layno/Jandreau and its progeny cover our ability to testify that we came in contact with the grass or soil. I don’t see where that requires a doctor to weigh in with a yes or no. The Court agreed. I reckon the Board just disremembered the holding in Layno. It was quite a spell ago. Shit happens. At the VA, lots of shit happens.

I wish to congratulate my good friend Zach Stolz. He was the VA law dog that engineered this masterpiece along with all his supportive staff at Chisholm, Chisholm and Kirpatrick. It will go a long way toward providing ammo for future Fort Mac Vets… like mine. Thank you Mr. Gust for your perseverance in prosecuting this to the finish. It’s value cannot be measured.

I enjoyed this. Shades of Risky Business. Another U Boat commander.

About asknod

VA claims blogger
This entry was posted in Agent Orange, AO, CAVC ruling, DM II, Tips and Tricks, VA Attorneys, Veterans Law and tagged , , , , , , , , , , , , . Bookmark the permalink.

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