A Vietnam Veterans view of the history, cover-up and abuse of chemicals in the Vietnam war.

I did two tours of duty in Vietnam. The first was with A Company, the Sixth Battalion in 1966/67, and being part of a large combat unit gave a feeling of security. We were like family and supported each other in every way. We came home together on HMAS Sydney, and in hindsight that was the best way to come home from Vietnam. We had time to relax and wind down from operational service. Our nerves had time to settle and our minds had time to adjust, and switch off from the constant state of combat readiness we had been in for twelve months. Even so, family and friends said that I had changed dramatically. After a couple of weeks, I realised that some of them were scared of me.

My mother was devastated in the change. She said that I had gone away young and carefree, always laughing, and had come home from Vietnam emotionless and cold, a nervous and jumpy wreck. I honestly did not notice at first, but after a few weeks, I could not stand being around any of my old civilian friends. They were like children. All of them were completely ignorant of the war in Vietnam, they complained about the weather, or the traffic, or their football team losing. I felt that my country had sent me and thousands of others to fight a war in Vietnam and no one back home gave a damn.

Most of the anti-Vietnam protesters that I met were completely ignorant of the facts and were involved because it was trendy. Others were simply short on guts and had to justify that somehow.

My second tour was with the 1st Australian Reinforcement Unit, (1ARU) in 1970/71. Coming home after that year was bad news, I could not adjust. I was patrolling in Vietnam one day and home in Sydney the next. Too quick...on a plane, off a plane. Jumpy, animal instincts still working. Angry...we flew into Sydney at about one in the morning to avoid demonstrators. A few Australians returning home from a year at war, and Americans coming to Australia for R & R. Even at 1am though, the demonstrators were there. I remember thinking to myself, "Hell, they’re supposed to be greeting us not calling us names and spitting on us." I remember thinking about the men that didn’t make it home and wondering about how they would feel, the ones that had been shot, blown apart, mined, booby trapped, poisoned with chemicals.

I will never understand why those uninformed bastards were directing their anger at us. No one wanted the war stopped more than we did. Why did they blame us for the war? Why weren’t they down in Canberra, tearing Parliament House down brick by brick, instead of attacking war weary men.

Anyway, I was home alive, but I felt like a criminal trying to sneak in the back door early in the morning. That is one of the huge differences between Vietnam veterans and veterans of all other wars. Most of the veterans of World War 2, and Korea, travelled with their units and spent weeks or months returning on ships. During these long trips home they had the closeness and emotional support of each other and were able to talk about the horror and trauma that they had experienced together. The epitaph for a lot of Vietnam veterans was a solitary plane ride home with complete strangers and a head full of grief, conflict, and confusion.

It is obvious that the vast majority of Vietnam veterans have had a much more problematic readjustment to civilian life than did their World War 2 and Korean counterparts. When we first arrived home the joy of being alive, of surviving, made us happy and carried us along as we tried to fit back in to society. However, after a couple of years, sometimes less, a lot of us started to notice changes. Those that applied to the Department of Veterans Affairs found that the department did not recognise their problems as being service related and in most cases ruled out compensation and treatment. Veterans began to suffer depression, we became cynical and angry, and trusted no one.

When I started to talk to other veterans about my problems, I quickly realised that most of them were the same. We all experienced sleep problems, temper outbursts, depression, intrusive thoughts...could not get Vietnam out of our minds. When we did get to sleep, nightmares were a problem. Feelings of Isolation, Rage, Alienation, Anxiety reactions, Survival guilt, headaches. All of these symptoms were, and still are common amongst many Vietnam veterans and in the early days, following the war there was very little help available. Most veterans with these symptoms were labelled as being crazy...mad. Many started to believe that they were crazy, and tried to hide out, isolate themselves from society.

The civilian population of Australia was indifferent to the Vietnam War, to Vietnam veterans, and to our problems. This did a lot of damage to our emotional state, but most of the damage, most of the hurt, came from politicians. Politicians mislead us about Vietnam, about how we got involved, about how the war was going, and about the use of herbicides and pesticides in Vietnam. From about March 1979, when questions were first being asked about Australians using herbicides in Vietnam, politicians, the government, continually denied all knowledge of it. It was not until 1982 that the government admitted for the first time that herbicides were used in Vietnam.

We could still smell the stuff, taste it. It was in the air, in the water we drank, the food we ate, the bush we patrolled. In some cases it was sprayed directly on top of us, but even if it wasn’t, the spray drift spread it all over South Vietnam. No area was sprayed more heavily than Phuoc Tuy Province, the Australian area of responsibility.

Vietnam was a completely different war. All the things mentioned so far point out how it was different, and why it caused so many problems for a lot of Vietnam veterans. The sense of alienation that returning veterans felt, the public ignorance and the lack of public support in Australia hurt us a lot.

I am pointing out all these differences between the Vietnam war and other wars because these events had such a huge effect on us, the veterans who did the work. The blame for the confusion, the attitude of the civilian population to returning veterans, and the emotional trauma suffered by veterans because of it lay with politicians, not with the Army, the Navy, or the Air Force.

Politicians in Canberra, those who ran the nation, and those in opposition who demonstrated against us, used the Armed Forces of this country as a political tool to further their own ambitions. Veterans have suffered the consequences since then, and will for the rest of their lives.

Nothing however can detract from the Armed Forces undoubted quality or standard of performance. We were sent to Vietnam and asked to do a job without proper resources, without a comprehensive policy, and without adequate financial support...and we did it well.

"The Onus of disproof rule."

I read a paper some time ago written by Graham Walker and presented on behalf of the Vietnam Veterans Federation to the Vietnam Voices Conference held at the Casula Powerhouse Arts Center. He said, and I quote:

"So what is the Onus of Disproof Rule? To explain that I must take you back to the 1914-18 War. Parliaments then were grappling with what responsibilities they had to the soldiers returning to Australia from the front. The Commonwealth Governments answer was the Australian Soldiers Repatriation Bill.

In introducing this bill into the Australian parliament in 1917, Senator Millen explained:

Repatriation, he said, was an attempt to indicate Australia’s obligation ‘to those who on its behalf have gone into the Valley of the Shadow of Death.’ "

The Prime Minister at that time, Billy Hughes, had no doubts that this obligation was the result of an unwritten but binding contract between the Australian parliament and Australia’s service men and women. He declared:

"…We say to them, You go and fight and when you come back we will look after your welfare."

And:

"We have entered into a bargain with the soldier and we must keep it…"

Billy Hughes was also clear that the servicemen and women had every right, to expect that the government would honour its promises.

"The Soldier will say to the Commonwealth Government: "You made us a promise, we look to you to carry it out."

In framing a new act in 1941, much thought had been given to how difficult it should be for sick and disabled veterans to have their illness and disabilities accepted as war caused. The thought of sick war veterans having to fight their way through court hearing after court hearing, with a heavy burden of proof on the veteran to prove his case, was abhorrent to the Parliament and to the Australian people. So the new legislation included a more lenient test of whether a veteran’s service could be linked with war service. The Attorney general, during the parliamentary debate on the bill, explained in the following terms:

"The whole purpose of this provision is to reverse completely the method of proof and put the burden of proof upon the authorities to negative any connection between war service and the disability.

In other words, if any question which is material to the case before any of these tribunals cannot be placed beyond reasonable doubt, the question must be determined in favour of the member of the forces. (Emphasis added.)"

Successive Federal Parliaments have supported these provisions of the Repatriation Act, so that it was these provisions which were in force when Australians were again sent to war, this time in Vietnam.

These provisions were part of what Billy Hughes had described as the bargain, the promise.

Even in 1977 when the Repatriation Act was completely overhauled, these onus of proof and standard of proof provisions were retained, indeed, they were made more explicit. So when Vietnam veterans began applying for compensation for cancer on the grounds that it was caused by Agent Orange, it was under these long standing provisions.""

ANALOGY

Vietnam veterans are constantly being asked why veterans from other wars don’t have the same problems. The fact is they do to a certain extent. Their circumstances are completely different of course. They were always treated as heroes and had the full support of all the people at home, so they didn’t have to deal with feelings of guilt about whether or not they should have been fighting. They did have to deal with the same combat related problems as Vietnam veterans though and American records show that at one point in the Second World War, the number of men being discharged from the service for psychiatric reasons exceeded the total number of men being newly drafted.

Australian records show that one Field Ambulance alone reported that for a single month (July - August) in 1916, fully 22 percent of casualties passing through the unit were diagnosed as ‘shell shock’, i.e. a psychiatric casualty.

The point is that many of the problems Vietnam veterans have, were, and still are suffered by other veterans. They were not compounded by all the other factors that Vietnam veterans had to put up with. Things like rejection by the people at home, the constant arguing about whether or not we should have been in Vietnam. They were not called names such as "baby killer" or "murderer" and they were not confronted by demonstrations when they came home.

We were, in fact we were even rejected by some World War Two veterans, and by some branches of the RSL.

Vietnam cannot be compared to other wars because so many things were different. World War 2 was a joint effort by all the people of Australia, men and women. Whether fighting on the front line or working back in Australia, it was a united effort against a uniformed and identifiable enemy. The task was clear-cut, our country was under threat and the Australian people responded.

Vietnam was not clear-cut. It was Australia’s longest war. It went for ten years, and every day was shown on television sets for people back home to watch. They were treated to the horrors of the war every day on the six o’clock news, but to them, it was a television program. By the time veterans started coming home from the battlefields, the public was tired and numb to the whole experience.

Politicians got us into Vietnam. The Menzies government contrived to become involved in Vietnam, they were over eager, and it is doubtful that the South Vietnamese government of Dr. Pham Huy Quat ever requested Australian military assistance. When we did become involved we didn’t get support from the people at home and it seemed that our own government sent us to fight the war and then sat back and hoped for the best.

The government of South Vietnam was riddled with instability and fraud. The whole environment was different, foreign to everything we had been taught, and this fostered distrust and added to our personal fears.

To us, the statements made by Australian politicians simply did not mesh with the war’s reality. Enemy body counts were more important than ground taken and military tactics were compromised for political expediency.

We started to wonder what we were doing there. The protests at home made no sense to us, the soldiers in the field. Why were we dying if no one wanted us to be there? Why did we fight over a piece of real estate, and then walk away and give it back, only to fight over it again later on.

Vietnam cannot be compared to other wars because there was no front line. It was a never-ending nightmare and we could never relax completely, because we did not know who the enemy was. Out the bush, in base camp, on leave, it made no difference, you had to watch your back. Friend and enemy looked the same. Friendly villagers by day were Viet Cong by night and even the children and the elderly had to be viewed with suspicion and distrust, because they were the offspring and the parents of the enemy all around us.

The demonstrations at home made us angry. Not because they were objecting to the war, but because they were blaming us, the soldiers, for what they were seeing on their television sets. While we were engaged in the real combat, the people at the moratoriums got all excited because they were part of the action. The good citizens of the moratorium marches showed their true colours when they started taunting the wives of men serving in Vietnam. They terrorised some of them by saying things like, "your husband’s a murderer", or "your husband’s a baby killer", or "he’s fucking Vietnamese harlots."

The fact is we were the ones putting our lives on the line, no one else and all the ranting and raving in Australia did nothing but irritate us.

Graham Greene got it right when he said, "To the soldier the civilian is the man who employs him to kill, who includes the guilt of murder in the pay envelope and escapes responsibility".

In a quote from "The Cream Machine" a soldier focuses on home.

"People back home are driving around with ‘stop the war in Vietnam’ stickers on the backs of their motorcars and every now and again when they wipe the frost from their windows they will be reminded of their conviction and feel outraged. I wonder how many of them knew where Vietnam was in 1965? They have jumped onto the current protest band-wagon, understanding all that is happening here, which makes them rather unique, as we don’t. They have a conscience where we have only an icy ache. They possess the conscience when convenient, appropriate, or stylish...Why not? The bleeding hearts have always existed, through all the ages they have thrived, the non-combatant, non-participating objector; tear jerking, psalm singing, eloquent intellectual, a million miles from the action, well fed and farting."

It is too easy to sit on the fence and get involved only because it is fun.

From ‘The Odd Angry Shot.’

"The dying face; tears pouring, nose running, blood spitting. Remember when you thought, what if he does make it, what if they give him a nice new tin leg and get him on his feet again, how do you tell some randy typist that you’re sorry you can’t screw her because you lost your manhood on a dirt road in a place called grid reference one eight three - one niner six? She’ll look sorry in her sweet suburban way and she’ll be busy the next time he asks her out.

Half a man. And so much more of a man than any one of the smug bastards safe at home who stand in the streets and scream to stop the war. Ask him if he’d like to stop the war, smug bastards. At least he came."

THE KILLERS

Everyone has heard of Agent Orange. Not everyone takes much notice of what those words mean. I am sure a lot of people laugh about it and think it is a lot of noise about nothing. Alternatively, perhaps they think that it is merely some chemical that is a bit unpleasant; but whatever they think of it, you can bet that they are completely ignorant of the real facts.

Over the years I have listened to and been part of conversations about this issue with people from all walks of life, all levels of intelligence, and the one thing they all have in common is ignorance. Because they are all educated and most of them can read and do read more than the sports pages, they know that the name Agent Orange refers to chemicals used in the Vietnam War. Without exeption these people have all expressed an opinion on the chemicals and on their effect both on the countryside and on people.

I have never heard anybody outside the veteran community or the scientific community say anything that is even remotely close to the real facts on these horrific chemicals, how they were used, what if any safety precautions were taken, or what effect they have had on people in the thirty years since they were first used in Vietnam.

What interests me about what all these people say and how they have come to even have an opinion about something so horribly misunderstood is that none of them are concerned about the health of veterans of the war or the people of South Vietnam. Veterans are getting sick and or dying from cancers and other illnesses at a rate much higher than the general population of this country. The South Vietnamese countryside has been devastated and changed beyond belief by the chemicals and the rate of deaths and birth abnormalities amongst the Vietnamese people is beyond words. Yet, the public of this country is completely unaware of all of this.

I’m not really surprised by their lack of knowledge given the history of understanding of the whole thing. Most of the Australian public took no great interest in the reality of what we the armed forces were doing there in the first place.

When veterans who are ill try to explain what is wrong with them it is like talking to someone from another planet. In fact, people who weren't involved know almost nothing about the War, or our involvement, or the turmoil we all found ourselves in trying to fight that war with our hands tied behind our backs by politicians and ignorant civilians.

I still have trouble coming to terms with what is wrong with me. I It is so easy for civilians who have never served to have opinions or to judge others and it is too easy to sit on the fence and that is what they do. Academics are the worst, they study the war or the politics behind it and from that they become experts.

These things are always easy to look at and be an expert on in hindsight. Hindsight is a wonderful thing but it does not deal with the cold hard reality that was the war then. We had to deal with that and what we ask now is that we are looked after medically and that our families are looked after. We are owed that much.

I am always fighting with or writing to politicians about what we need or what has to be done from our view and it probably sounds sometimes as if we are blaming them for everything. That is not the case and like them or not most politicians are hard working men and women who mean well and try to do good for this country. Again though it comes down to ignorance or not being able to understand what it is we are saying.

I am sure many politicians think Vietnam veterans are looking for someone to blame. I know that I am not, and all the veterans I speak to about this are not. Mistakes were made, god knows so many mistakes, but wars are not scripted and this was different to all the others we have been in. There were political mistakes, many of them. There were military mistakes, there always are. In general though I believe the Australian Forces in Vietnam did an honorable and honest job in our efforts to stop the South Vietnamese being forced into communism and when all the garbage is pushed aside, that’s what it was about to us.

I went back to Vietnam in 1995 with a mate of mine from the same unit, 6^th Battalion. The Royal Australian Regiment. All of the people we spoke to in the south told us that life for them was terrible under the communists. They are in fact being punished for losing the war and so are their families. I asked them if they blamed us for leaving them to face the communist forces on their own. They all said yes, they blamed the politicians who allowed that to happen, both theirs and ours, meaning mainly the Americans of course, but not the soldiers. They did not blame the soldiers. They all said that the only hope they had to remain free from communism was when we, meaning the USA armed forces and Australia and the other allies were there to help them.

Again, people of this country know none of this and it amazes me that a country can send the cream of its youth to fight in these places and yet the population can take so little interest in what they are doing.

SPRAYED AND BETRAYED

This is the frightening story of the damage that has already been done to Vietnam War veterans, To our children as well as to adults, by the irresponsible spraying of chemicals in Vietnam. It investigates the lack of care taken, the sloppy practices within the chemical industry, and the problems with successive governments in this country, to have them accept responsibility, because it is their responsibility! To provide health care for veterans and their families, and compensation for disabilities caused by exposure to the chemicals. It is also about the future damage to our health and that of our children, and perhaps even their children. These chemicals sit in your system and can be triggered by many things at any time. No one knows at this stage how long this can last or what problems can arise because of exposure to any one of these chemicals, let alone the cocktail of all of them mixed together.

More than three decades have now passed since the start of spraying in South Vietnam, and not much less than that since problems were first noticed with the Vietnamese as well as with the allies. We veterans have always known that there was a problem, but until the last couple of years, I do not think we really understood how far reaching these problems might be. The mortality studies of veterans over the years have pointed out that a problem exists. None of us however was ready for the figures that came out of the last study. Our children are innocent victims of all of this and by extension so are our wives. There can be no argument about it, we have been saying for years that we can see a health problem within our ranks and the Governments own study now reinforces that fact.

Many of the health effects are just now being felt. It seems no accident that we are currently seeing a great number of our veteran friends dying from a range of illnesses, predominately cancers, at a relatively young age, most in their 50's. It would be plausible and prudent to assume that the chemicals that played such a huge part in our lives is a very significant factor. Chemicals are the common denominator linking all veterans. All veterans who are ill seem to have the same problems whether we served in Saigon, Vung Tao, Nui Dat, Phan Rang, Da Nang, or indeed anywhere else in that country. It doesn't seem to matter whether you were in combat or safe in a base job, if you served in Vietnam during the war, chances are you have or will have some of the problems common to Vietnam veterans. The only common link between us all is chemicals; the stuff was sprayed all over the place and the spray drift took it in the wind.

The only people on this planet who have a problem accepting the facts and admitting that it is as probable as not that most of our problems come from our war service for this country are Governments and the Department of Veterans Affairs.

This whole subject has been argued about, written about, researched and debated, published in magazines and newspapers, talked about on radio and television. It has been the subject of documentaries, legal battles, and here in Australia a Royal Commission that lasted some two years and cost about 3.8 million dollars.

The Commissioner found that veterans are ill as a result of our service in Vietnam. His ultimate decision was that the illness was caused by stress, although cancer, from which some veterans are suffering, may result from chemicals to which veterans were exposed. That was back in 1985 and a finding after an inquiry, that chemicals did not cause present illness in veterans, was acceptable to some people. Personally, I thought the whole Commission was a joke. I was more naive then and it was my introduction to the real world of legal maneuvering and the dirty world of cover-ups, lies and deceit involving chemical companies.

Shortly after spraying began, Australian soldiers started to feel the effects. Of course we did not know anything about what was being sprayed and we were very young and trusting, we did not question why some of us were ill. We were fighting a war and there were many other things to worry about, and anyway we trusted the powers that be --- They wouldn’t spray any chemicals that were harmful to us, would they?

We were not warned that there was any danger, in fact, the subject was not ever talked about. The spraying was to control mosquitoes and vegetation so it sounded like a good idea to us. When you spend your days patrolling and ambushing, watching your every step and looking out for mines and booby traps and enemy troops, the spraying of chemicals is not a huge worry. We trusted others with those things.

We were not warned of any dangers. We were not warned that there was a danger in drinking the water, or eating the food, or breathing the fumes. We could smell the stuff at times and I can remember my eyes stinging from something from the sky but at the time, as I said, we had other things to worry about.

Despite glib assurances from our government, we have suffered an extraordinary rate of cancers and other illnesses that could only have been caused by chemical spraying; there is no other common factor that could explain these illnesses. Though the DVA and Government has insisted all along that there was little or no danger from these chemicals, I believe there is irrefutable evidence, which has only gradually come to light, that it is as likely as not that many Vietnam veterans and our children have suffered and-or died from heart disease, chronic respiratory distress, progressive muscular weakness, leukemia, prostate cancer, cancer of the colon, other cancers, motor neuron disease, cleft lip or palate, absent body parts, spina bifida and many more. Also PostTraumatic Stress Disorder and other mental disturbances have ruined many lives.

Most tragically of all, some veterans’ children have been born with physical and mental handicaps. Yet in spite of overwhelming evidence, the Veterans Affairs department has in many cases adamantly refused to admit there is any proof that these illnesses are service-related, the veterans and their widows and children have been consistently denied compensation. Of course, no individual case of leukemia or cancer or birth defect carries a label saying exactly what caused it. But the statistics, gathered by the veterans ourselves, show that the chemicals were as likely as not responsible.

With shocking callousness, DVA and Government have refused to accept that it is as likely as not, (and I keep saying that because it can never be proven 100% either way) that veterans illnesses and that of our children are probably linked to chemicals.

When we look at the degree of toxicity of dioxin, it amazes me that anyone would bother to do surveys and health studies trying to prove or disprove a link. This stuff is unbelievably deadly.

Think of dioxin this way; it is measured in parts per trillion. This can be compared to a teaspoon of salt mixed evenly through a dump truck full of sand. The extreme toxicity of dioxin makes even this amount a potentially lethal dose. It is the most potent cancer-causing agent known to man. The tiniest amount causes malignant tumors in animals. It is also a powerful teratogen, causing birth defects and reproductive toxicity such as stillbirths and miscarriages.

The sick part is, TCDD does not kill plants. It could have been removed from 245T without affecting its purpose. The manufacturer knew its extreme toxicity and the danger of using it, but TCDD was not removed from 245T because that would have increased production costs.

Dioxin is only one part of one agent though and I believe that the "Cocktail Effect" is the real worry. The mix of all the different chemicals, and there were fifteen of them used in Vietnam, is the real problem and the reason that no definite link can be found to any one of these chemicals.

Evidence is now in hand, from veterans, private citizens and independent researchers, some scientists and chemical experts, Greenpeace, and many other groups and individuals that the rates of infant mortality and cancer and leukemia and many other illnesses are much higher in any community that has come in touch with these chemicals.

I will say it again...The incidents of serious illness is higher in the Vietnam veteran community than in the rest of the population.

The government response has again been a condescending and blanket denial. Or, they say that their last study into the mortality of Vietnam veterans and our families has shown some cause for concern and that the figures must now be validated.

Spina Bifida in Vietnam veterans' children is one such example. Our government is still "looking at it" and yet The United States accepted Spina Bifida in Vietnam veterans children as war caused in 1996 and pay them compensation and other benefits because of it.

The governments own record of health studies has been stained with serious scandal and obvious cover-up. Here are some examples of the things that went on during the Royal Commission. Taken from the VVAA's answer to the Royal Commissioner's report.

" 'C' Company 5 RAR was one of the units directly sprayed by Agent Orange and the herbicide positively identified. The Commissioner said: -

"It is significant to note that no member of "C" Company 5 RAR was called as a witness at the health effects hearing of the Commission. If the health effects alleged to arise from minimal exposure do, in fact arise, then this group, representing the best instance of direct aerial exposure, would be expected to be amongst those suffering adverse health consequences. The failure of the VVAA to call any member of this group is telling."

The last comment ignores the Commissioner's refusal to allow the VVAA to call a large number of witnesses and that the ten witnesses called at the health effects hearing were chosen by agreement between counsel assisting the Commissioner and VVAA counsel.

The suggestion that none of "C" Company were ill after the spraying is just wrong. A report by a Major Tripp shows that this particular spraying effected troops. This is typical of the carelessness with which the report was prepared.

However, it is absolutely astonishing that the Commissioner made no effort to follow up the health effects of this known spraying which involved about 120 men. Indeed the failure to find out what really happened to exposed troops afterwards is indicative of the lack of skill shown and indeed ordinary commonsense in directing the Commission and in compilation of the report.

Instead of concerning itself with what really happened, the Commissioner relied upon hypothetical models of exposed soldiers. Models were used to show how much dioxin a soldier in Vietnam could absorb. A Dr. Poiger is relied upon.

Unfortunately for the credibility of the report when Dr. Poiger's evidence is checked, we find that his experience related to direct application of dioxin to internal organs of dogs and to applications to the skin of hairless rats. He opined that human skin absorption would be about the same as hairless rats.

I could go on and on, page by page, about the contradictions, the mistakes, the misquotations, the errors, but this sort of thing occurs so frequently that it would take months."

Indeed, there are so many errors in the Royal Commission that the President of the VVAA at the time, the late Phill Thompson, commented that the report deserved a mention in the Guinness Book of Records.

The whole Royal Commission was a pathetic joke. It was proven beyond any doubt that the Department of Veterans Affairs conduct toward some veterans had in fact been life threatening, and that they had altered documents to cover that conduct. There was also evidence that veterans had died, but probably would not have, if the Medical Officers of the Department had been more active.

It is beyond my comprehension that Justice Evatt was not more concerned about this conduct...surely it is illegal, and immoral, and hardly in the spirit of a "fair go".

Where the Department of Veterans Affairs was caught altering veteran's documents, Justice Evatt said, (and it is in the report (Vol.7, p. XIV-227)

"The Commission notes that DVA frankly disclosed the falsification of the records. This is typical of the open way which DVA has accepted the investigations by this Commission."

What the Commissioner did not say was that the veteran took copies of his files before the falsification took place...the DVA was caught out by documents showing the falsification. Nevertheless, the good Justice Evatt seemed to believe that admission of guilt excuses the conduct.

That whole Royal Commission was a travesty and any government worth its salt would overturn the thing. Surely, it is an embarrassment for any person with any brain at all, to be associated with such a sick document. A whole body of expert medical and scientific evidence was ignored...Indeed evidence which showed chemicals to be harmless, was all that was accepted.

During the Royal Commission John Evans, a scientific adviser and consultant chemist advised the VVAA. A former employee of the CSIRO, Evans provided a written statement and testified before two of the senate hearings. It does not surprise me that this man has been attacked personally and his credibility questioned by the DVA and the Departments of Health and Defence. Evans said, every Australian soldier who served in Vietnam was exposed to chemicals, whether directly from aerial and ground spraying, or from drift, or through contamination of water and food chains.

He pointed out that many of the pesticides used in Vietnam were already known to be hazardous, and that the Australian Government should have taken precautions to protect Australian troops.

We veterans have been trying for years to make the point that the term "Agent Orange" does not refer to one chemical. The press and the DVA would have people believe that is the case because all they ever refer to is "Agent Orange". The daily press and releases from the DVA constantly put out that herbicide Orange was the only hazardous chemical used in Vietnam. This is not the case of course and again John Evans told the senate hearings about the known effects of cacodylic acid (Agent Blue) and the extensive scientific literature implicating 2,4,5-T and 2,4-D with cancer and other disorders. Evans also gave evidence on Malathion, which had been accorded little importance in depositions from the DVA and the Department of Health. Evans told of cases in which Malathion had been shown to cause damage to the central nervous system. The symptoms associated with this little beauty are dizziness, nausea, weight loss and depression, all of which are common amongst Vietnam veterans.

It comes as no surprise to hear that Senator Jessop criticized Evans for implying that the Senate committee had been preoccupied with the use of Agent Orange and had ignored the wide range of other chemicals used in Vietnam.

A close reading of the transcript of the hearings, does without doubt, justify Evans claim.

I could write about the lousy treatment we have received at the hands of Government and DVA for months but no one outside the veteran community seems to give a damn.

As early as 1961, long before the large-scale use of troops, American military planners were experimenting with herbicides for a large-scale defoliation campaign.

Once America, Australia, and the other allies became directly involved in the war, the defoliation campaign was dramatically stepped up, reaching its peak between 1965 and 1967. At the same time, the herbicides, especially 245-T, had been coming under increased criticism in the United States. The first reports of birth defects and abnormalities in Vietnamese children born in areas that had been sprayed began appearing in 1965.

We are still here. We are still fighting and we will not go away.

Why wont government live up to their responsibility and just admit the mistakes of the past? And why won't DVA live up to their charter? Have the employees of DVA even read their charter? I doubt it.

I will finish this chapter by quoting an old mate of mine, Phillip Thompson. O.A.M. "At times it was easier fighting the N.V.A. at Fire Support Base Coral, at least you knew who the enemy were."

Phillip Thompson committed suicide on 22nd November 1986, after a long, hard and tiring fight leading the Veterans during the Royal Commission.

We Vietnam veterans are still fighting the war. This is just another firefight. One by one Vietnam veterans are being cut down. The difference between this firefight and all the others is that these bullets were fired two to three decades ago.

Now after about thirty years of denial, the courts and the scientific community are beginning to recognize the deadly nature of DIOXIN found in Agent Orange.

Civilian victims, that is civilian victims in the United States, have filed lawsuits for damages caused by the chemical and have won substantial judgements. The courts have agreed that there is a link between their exposure to dioxin and subsequent illnesses.

Vietnam veterans, in the United States and here in Australia still receive nothing, not even recognition that we were poisoned.

The story of dioxin is a complex one, it includes cover-ups, lies, deceit, data manipulation by corporations and governments, and fraudulent claims and faked studies.

For the Vietnam veteran it is a story of pain, suffering, anger, betrayal and rage; of birth defects, cancer and many uncertainties about health problems for our families and us.

"In 1949, an explosion at the Monsanto chemical plant in Nitro, West Virginia, exposed many workers to the Dioxin contaminated herbicide 2,4,5-T. Thirty years later, Monsanto scientists and an independent researcher, Dr Raymond Suskind, compared death rates among workers they said had been exposed, to the death rates of workers who were not exposed. When no differences between the groups were found, Monsanto claimed that Dioxin did not cause cancer and that there were no long term effects from Dioxin exposure (Zack and Suskind, 1980).

Monsanto released additional studies from 1980 to 1984 showing no adverse health effects, other than chloracne in workers exposed in the 1949 accident.

Evidence of inaccuracies in both the Monsanto and BASF studies was first revealed during the Kemner vs. Monsanto trial, in which a group of citizens in Sturgeon, Missouri, sued Monsanto for injuries suffered during a chemical spill caused by a train derailment in 1979.

While reviewing documents obtained from Monsanto during discovery, lawyers for the victims noticed that in one of the Monsanto studies, certain people were classified as Dioxin exposed, while in a later study, the same people were classified as not exposed (Hay, 1992).

These documents revealed that Monsanto scientists omitted five deaths from the dioxin exposed and put them in the unexposed group. Based on this misclassification of data, the researchers concluded that there was no relation between dioxin exposure and cancer in humans (kemner, 1989).

In truth, the death rate in the dioxin exposed group of Nitro workers was 65% higher than expected, with death rate from certain diseases (such as lung, genitourinary, bladder and lymphatic cancers, and heart disease) showing large increases (Kemner, 1989.)

Another Suskind study did not look at an original group of workers known to be dioxin exposed, but instead looked at hundreds of Monsanto workers at the Nitro facility. Some of the same classification sleight of hand was performed in this study.

Again, documents uncovered in Kemner vs. Monsanto showed that in fact there were 28 cancer cases in the exposed worker group and only two in the unexposed group. Suskind however reported finding only 14 cancers in the exposed workers group, compared to six in the unexposed group.

Suskind also examined a group of 37 exposed Monsanto workers during the four-year period following the 1949 accident. Medical documents obtained by Greenpeace from the Sloan-Kettering institute in Cincinnati, Ohio, where Suskind worked, showed that workers suffered "aches, pain, fatigue, nervousness, loss of libido, irritability, and other symptoms, active skin lesions, and definite patterns of psychological disorders." All but one of the 37 workers had developed chloracne, a severe skin condition. But in a report to Monsanto at the time, Suskind concluded, without further explanation, that his "findings were limited to the skin;" in other words, all other health effects of dioxin exposure besides chloracne, were not reported (Greenpeace, 1994). Out of these studies grew the industry claim that chloracne is the only long-term effect of dioxin exposure.

Dow chemical company produced the herbicides 2,4,5T and 2,4D, Agent Orange, the defoliant that was sprayed on the jungles of Vietnam. Both herbicides are contaminated with dioxin during the manufacturing process."

So, there is no longer any credible argument that dioxin is not a deadly chemical, and as I have pointed out there is plenty of evidence as to the credibility of the chemical companies involved.

We should not have to prove anything against chemical companies who have been shown to be less than honest when it comes to testing for health effects from the products that they sell.

There are many other examples of criminal behavior and criminal cover up of dioxin contamination, and falsification of dioxin health studies.

The United States Environmental Protection Agency in Washington D.C. (EPA) has prosecuted Monsanto for a long pattern of fraud concerning dioxin. As I keep saying there is no longer any doubt that dioxin is deadly, that it causes all sorts of illness, or that it can be passed from generation to generation.

Because of all the lying and cheating, falsifying and altering documents and samples, dioxin has been given a lesser carcinogenic potential ranking.

This is the single biggest obstacle and the basis for denying compensation to Vietnam veterans exposed to Agent Orange and our children suffering birth defects from that parental exposure.

THE AUSTRALIAN GOVERNMENT and AGENT ORANGE

The Agent Orange issue first broke in the Australian press in 1979, the Australian government quickly denied that Australian troops had ever used or come into contact with Agent Orange.

Vietnam veterans all over the country laughed at that and yelled that we were exposed to herbicides and pesticides on a daily basis during tours of duty. It was in the air, in the water we drank and showered in, in the food we ate and in the bush we patrolled and fought in.

Veterans knew that some of us were sick from the chemical, some had already died, and more were sick and dying. The more we veterans complained the more the officials denied.

This sort of action of course reveals completely the perceptions and mentality of those people and departments and goes a long way towards explaining their subsequent treatment (or mistreatment) of Vietnam veterans.

The health of Vietnam veterans was first raised in Parliament on 23rd November 1978. Labor member John Kerin asked Minister for Defence, Killen, how many veterans had been affected by exposure to Agent Orange whilst serving in Vietnam; what evidence was there of sterility or skin cancers, and would the government conduct a special inquiry into the matter. The minister answered that there were no recorded cases of Australian troops having come into contact with Agent Orange and no veteran had at that time made any claim for compensation. Furthermore the Australian Defence Force did not use Agent Orange in Vietnam.

This exchange took place thirteen months after the Agent Orange issue had been first publicized in the US daily press.

In a question to the Minister for Veterans Affairs, Senator Mason asked if there was any evidence of illness among veterans exposed to 2,4,5-T, a major component of Agent Orange, and if there was any evidence of birth defects among their children. The minister denied any knowledge of any illness or defects.

On 28th March 1980 John Kerrin again raised the issue of herbicides and made reference to tests on chemicals that had been carried out by scientists at Nui Dat. The Minister, Killen, replied that for all he knew or cared the chemicals concerned - Reglone, Hyvar, Gramaxone, and Tordon could have been racehorses. The Prime Minister supported Killen and repeated his claim that the use of herbicides in Vietnam had been "responsible and sensible."

Veterans continued to get sick, and newspapers carried story after story of sick veterans. Still Fraser and Killen continued to deny any use of Agent Orange.

Personally I don't care which chemical or chemicals or mixture of has done the damage, but it is obvious now to me and should be to everyone that veterans and their families are suffering from illnesses because of our service in Vietnam. It needs to be fixed.

Veterans gave their stories to the newspapers and to a Senate hearing and these stories formed a picture that Chemical spraying was a part of every day life at Nui Dat and at Vung Tau.

Veterans recalled becoming ill after exposure but we were at war and these (at the time) symptoms were not a real cause for worry when you put your life on the line every day. Besides, we trusted the government, they wouldn't allow any spraying that was bad for our health.... Would they ??

The Department of Veterans Affairs physicians showed a complete lack of interest in these stories and depositions by veterans. By its own admission, they had been monitoring the Agent Orange issue in the US long before it came to any ones attention in Australia.

What the hell was wrong with our Department of Veterans Affairs, isn't their charter to look after us, the veterans. If they didn't believe us then they were in fact calling us liars.

They WERE told about the drenching with chemicals and they WERE told about the illnesses that began immediately after the spraying of chemicals.

Several veterans went to the Department of Veterans Affairs with chloracne, a classic symptom of exposure to Dioxin, (TCDD) and yet not once did a doctor from the Department of Veterans Affairs ever suggest to those veterans that they might have that condition as a consequence of exposure to herbicides.

They can't have it both ways. They were either all stupid or they were treating us with contempt.

Either way the Department of Veterans Affairs have a lot to answer for.

The veteran community has been very patient. We have conducted our fight with the Department in a proper and legal way. We fought a Royal Commission to prove our case and had to put up with unbelievable treatment bordering on contempt from the Commission.

The fight is over now though surely? There is no longer any doubt that we were sprayed by all sorts of dangerous chemicals, the most toxic of them being DIOXIN, the most lethal known to man.

There is no longer any doubt that we are sick as a result of this spraying or that our children are sick and could get sicker from the same chemicals. Surely we can now all get together and work towards fixing the problem. Especially with the children and wives.

We Vietnam veterans are patriots, we were then and we are now. We are not looking for people to blame. We fought for our country. We love this country and I would do it again. We simply want a wrong righted, and all those who need treatment or incomes because of war caused illness looked after without having to beg for it, or jump through hoops for years while getting sicker, or dying, or committing suicide.

US DEPARTMENT OF VETERANS AFFAIRS

US Department of Veterans Affairs

Report

REPORT TO THE SECRETARY OF THE DEPARTMENT OF VETERANS AFFAIRS

ON THE ASSOCIATION BETWEEN ADVERSE HEALTH EFFECTS

AND EXPOSURE TO AGENT ORANGE

CLASSIFIED

CONFIDENTIAL STATUS (1)

As Reported by Special Assistant

Admiral E.R. Zumwalt, Jr.

May 5, 1990

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1. INTRODUCTION

On October 6, 1989 I was appointed as special assistant to Secretary Derwinski of the Department of Veterans Affairs to assist the Secretary in determining whether it is at least as likely as not that there is a statistical association between exposure to Agent Orange and a specific adverse health effect.

As special assistant, I was entrusted with evaluating the numerous data relevant to the statistical association between exposure to Agent Orange and the specific adverse health effects manifested by veterans who saw active duty in Vietnam. Such evaluations were made in accordance with the standards set forth in Public Law 98-542, the Veterans’ Dioxin and Radiation Exposure Compensation Standards Act and 38 C.F.R. 1.17, regulations of the Department of Veterans Affairs concerning the evaluation of studies relating to health effects of dioxin and radiation exposure.

Consistent with my responsibilities as special assistant, I reviewed and evaluated the work of the Scientific Council of the Veterans’ Advisory Committee on Environmental Hazards and commissioned independent scientific experts to assist me in evaluating the validity of numerous human and animal studies on the effects of exposure to Agent Orange and/or exposure to herbicides containing 2,3,7,8 tetrachlorodibenzo-para-dioxin (TCDD or dioxin). In addition, I reviewed and evaluated the protocol and standards employed by government sponsored studies

2

to assess such studies’ credibility, fairness and consistency with generally accepted scientific practices.

After reviewing the scientific literature related to the health effects of Vietnam Veterans exposed to Agent Orange as well as other studies concerning the health hazards of civilian exposure to dioxin contaminants, I conclude that there is adequate evidence for the Secretary to reasonably conclude that it is at least as likely as not that there is a relationship between exposure to Agent Orange and the following health problems: non—Hodgkin’s lymphoma, chloracne and other skin disorders, lip cancer, bone cancer, soft tissue sarcoma, birth defects, skin cancer, porphyria cutanea tarda and other liver disorders, Hodgkin’s disease, hematopoietic diseases, multiple myeloma, neurological defects, auto—immune diseases and disorders, leukemia, lung cancer, kidney cancer, malignant melanoma, pancreatic cancer, stomach cancer, colon cancer, nasal/pharyngeal/esophageal cancers, prostate cancer, testicular cancer, liver cancer, brain cancer, psychosocial effects and gastrointestinal diseases.

I further conclude that the Veterans’ Advisory Committee on Environmental Hazards has not acted with impartiality in its review and assessment of the scientific evidence related to the association of adverse health effects and exposure to Agent Orange.

In addition to providing evidence in support of the conclusions stated above, this report provides the Secretary with

3

A review of the scientific, political and legal efforts that have occurred over the last decade to establish that Vietnam Veterans who have been exposed to Agent Orange are in fact entitled to compensation for various illnesses as service-related injuries.

II. AGENT ORANGE USAGE IN VIETNAM

Agent Orange was a 50:50 mixture of 2,4-D and 2,4,5-T. The latter component, 2,4,5-T, was found to contain the contaminant TCDD or 2,3,7, 8-tetrachlorodibenzo-para-dioxin (i.e. dioxin), which is regarded as one of the most toxic chemicals known to man.1

From 1962 to 1971 the United States military sprayed the herbicide Agent Orange to accomplish the following objectives: 1)

______________________

1 See CDC Protocol for Epidemiologic Studies on the Health of Vietnam Veterans (November, 1983), p. 4 ( The CDC Protocol also contains a literature review as of 1983 of the health effects on animals and humans exposed to herbicides and dioxin, pp. 63-78. The literature review documents health problems such as chloracne, immunological suppression, neurological and psychological effects, reproductive problems such as birth defects, carcinogenic effects such as soft tissue sarcomas, lymphomas and thyroid tumors, and various gastrointestinal disorders) ; See also General Accounting Office, "Report by the Comptroller General: Health Effects of Exposure to Herbicide Orange in South Vietnam Should Be Resolved," GAO-CED-79-22 at 2 (April 6, 1979) (hereinafter GAO Report, 1979).

Dioxin is a family of chemicals (75 in all) that does not occur naturally, nor is it intentionally manufactured by any industry. The most toxic dioxin is called 2,3,7,8 — TCDD. Dioxins are produced as byproducts of the manufacture of some herbicides ( for example, 2,4, 5—T), wood preservatives made from trichlorophenals, and some germicides. Dioxins are also produced by the manufacture of pulp and paper, by the combustion of wood in the presence of chlorine, by fires involving chlorinated benzenes and biphenyls (e.g. PCBs), by the exhaust of automobiles burning leaded fuel, and by municipal solid waste incinerators

4

defoliate jungle terrain to improve observation and prevent enemy ambush; 2) destroy food crops; and 3) clear Vegetation around military installations, landing zones, fire base camps, and trails 2

Unlike civilian applications of the components contained in Agent Orange which are diluted in oil and water, Agent Orange was sprayed undiluted in Vietnam. Military applications were sprayed at the rate of approximately 3 gallons per acre and contained approximately 12 pounds of 2,4-D and 13.8 pounds of 2,4,5-T.3

Although the military dispensed Agent Orange in concentrations 6 to 25 times the manufacturer’s suggested rate, "at that time the Department of Defense (DOD) did not consider herbicide orange toxic or dangerous to humans and took few precautions to prevent exposure to it."’ Yet, evidence readily suggests that at the time of its use experts knew that Agent Orange was harmful to military personnel.

PRESUMPTIONS OF AGENT ORANGE RELATED HEALTH EFFECTS

I have also given considerable thought to which health effects are to be presumed likelier than not to be related to TCDD exposure and therefore service—connected. Any such determination must be made in light of: 1) the review of the scientific literature, including animal studies where human data does not exist or has been manipulated; 2) the inappropriate processes of the Veterans Advisory Committee on Environmental Hazards; 3) the past political manipulations of Ranch Hand and CDC studies; and 4) the recent discoveries of manipulation by scientists hired by chemical manufacturers of dioxin contaminants to evaluate the potentially best epidemiological data concerning TCDD’s effects on humans.

My evaluation of the evidence has been made with just such

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considerations in mind. Additionally, I have conferred with several experts in the field. After evaluating all the evidence and material of record, I am convinced that there is better than "an approximate balance of positive and negative evidence" on a series of Agent Orange related health effects.

It can, in my judgment, be concluded, vith a very high degree of confidence, that it is at least as likely as not that the following are caused in humans by exposure to TCDD: non—Hodgkin’ s lymphoma, chloracne and other skin disorders, lip cancer, bone cancer, soft tissue sarcoma, birth defects, skin cancer, lung cancer, porphyria cutanea tarda and other liver disorders, Hodgkin’s disease, hematopoietic diseases, multiple myeloma, neurological defects and auto—immune diseases and disorders.

In addition, I am most comfortable in concluding that it is at least as likely as not that liver cancer, nasal/pharyngeal/esophageal cancers, leukemia, malignant melanoma, kidney cancer, testicular cancer, pancreatic cancer, stomach cancer, prostate cancer, colon cancer, brain cancer, psychosocial effects, and gastrointestinal disease are service-- connected.

I have separated the two foregoing subsets subjectively only because there is somewhat more data to support the former than the latter. Nonetheless, immunological and toxicological theory supports both subsets and fully justifies, in my view, the inclusion of both subsets of the foregoing health effects in determining a service--connected injury.

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Such a resolution of the embarrassingly prolonged Agent Orange controversy would be on the order of decisions to compensate U.S. soldiers who contracted cancer after exposure to radiation from atomic tests and U.S. soldiers involved, without their knowledge, in LSD experiments. With the scientific basis now available for it to be stated with confidence that it is at least as likely as not that various health effects are related to wartime exposure to Agent Orange, there is the opportunity finally to right a significant national wrong committed against our Vietnam Veterans.

RECOMENDATIONS

1. That the Secretary undertake a prompt reevaluation of the compensation decision impacting on Vietnam Veterans exposed to Agent Orange in light of accumulating scientific evidence that discredits earlier "findings" of an insufficient linkage between dioxin contaminants in Agent Orange and rare disease, such as cancer illnesses.

2. To the extent that the Secretary deems it necessary to use the Veterans’ Advisory Committee on Environmental Hazards to assist in his reevaluation, the current members should be dismissed -— having demonstrated a disturbing bias in their review to date of the scientific literature related to Agent Orange and dioxin -- and new members should be appointed in accordance with Section G of the Veterans’ Dioxin and Radiation Exposure Compensation Standards Act, including persons with recognized scientific and medical expertise in fields pertinent

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to understanding the health effects of exposure to dioxin. The Committee meeting currently scheduled for May 16th and May 17th should be cancelled.

3. That the Secretary in making his decision regarding Agent Orange compensation for Vietnam Veterans do so on the basis of his independent evaluation of the existing scientific and medical evidence on the health effects of exposure to dioxins, as cataloged and discussed in this Report, and in full recognition that the standard to be applied -- as mandated by both Congress and the courts -- requires the resolution of doubts as to a number of cancers linked to dioxins in favor of the Vietnam Veterans.

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Appendix : The full report is available as Appendix A to this book. I have put it there because it is hard reading and some pieces are missing. It does though give the details of all the information behind the Admirals report and will be interesting to some people.

TREATMENT OF VIETNAM VETERANS AND FAMILIES BY SUCCESSIVE AUSTRALIAN GOVERNMENTS

Government is hooked on denying responsibility, and designer victimology, but fails to notice the real victims: in this case the entire Vietnam veteran community and our next generations. I fear that, over time, their tricks will be seen as uncontested fact, because so many politicians and public servants are afraid to search for solutions that are more creative and constructive than the typically narrow minded denials and closed-minded attitudes to a solution to the problems, for fear of having to accept responsibility, or having to admit a mistake.

There are two points we need to make here:

ONE:

The outcome of the struggle for Vietnam veterans to receive Gold Card medical treatment for the wives and children of veterans with accepted disabilities, will ultimately be decided by people of influence who are in no way fully informed about the problems we veterans face and who seem to think they are doing us a favor by looking at it at all.

TWO:

Those of us who have to deal with the victims of their inaction and in some cases their downright neglect and obstructionism don't find the governments, or DVA's, lack of understanding or assistance or even their doing their job as laid out in their own charter at all humorous.

Because of successive Australian Governments attitudes we find ourselves arguing that to ignore or stall or ask for more evidence on this issue is cruel in the extreme and amounts to nothing short of neglect. Governments should try being a little more open minded!

Governments' belief is that those rights and protections that we fought for, and that give us voice in a democratic society, are not really to be used against them, and that we should toe the Government line. In many ways the Government and DVA use the democratic process against us instead of looking at things from our point of view and helping instead of hindering us, the former Armed Forces of this nation.

What is this stupid fascination Governments have with delaying and obstructing? We certainly can't understand it. We sometimes joke about how we are in for another long hard battle against the ostentatious windbags. But seriously, it is getting out of hand and Governments seem to have an almost mystical faith in obstructionism!

We Vietnam veterans believe that we must all work together to solve the health problems faced by our families and us. We also believe that Government could do a lot more to help us.

We must not hold only Government accountable, for The DVA is the Department with the charter to look after the interests of Veterans and they are not always seen to do that. They accept the government line whatever it is without question.

We may very well ask why DVA does not question whether some of Governments solutions are seriously flawed, fail to meet minimal standards, and, on balance, are unfair?

We have a right, an indisputable, inalienable right, to expect the Government and DVA to work with us to solve the problems that were caused by our war service for this nation. There is evidence of cover-ups, obstruction, and denial upon denial of responsibility, even falsification of documents by DVA during the Royal Commission, amongst other underhanded tricks being used against us. All that is needed is a fair-dinkum look at our health needs and acceptance of the more than adequate evidence available all around the world of the damage done by the chemicals that we are saying poisoned us veterans, and emerging evidence that our families are now suffering because of that.

Over the years we Vietnam veterans have been tagged with names we don't deserve, "baby killers, murderers, wingers", and many others that wont be mentioned here. We have put up with that and continued on in a lawful way to put our case for medical treatment, pensions etc. We have been fighting for these things now for about thirty years so no-one can say we are not in for the long haul, or that we are only stirrers trying to hurt government.

The truth is that Governments have no moral qualities whatsoever if they don't now look at this whole problem from a humanitarian angle and not from the nations wallet or by putting us in with social security recipients and treating us as welfare cases. We are not!! We are War Veterans and deserve to be treated with respect by the so-called servants of the people, politicians and bureaucrats alike.

The Ranch Hand study has been used to discount any connection between Agent Orange and health problems in Vietnam veterans and our children. But a six-month investigation by the San Diego Union - Tribune has revealed such glaring flaws in the study that it may be useless.

"The study is named for Operation Ranch hand, a series of Air Force missions that were responsible for spraying 18 million gallons of Agent Orange, a herbicide that was used to defoliate over 3.6 million acres of South Vietnam. The Ranch Hand study has tracked the health of about 1000 veterans who directly participated in the spray missions. This group has been compared with an Air Force group that was not involved in the spraying. Both groups come to San Diego for medical exams every few years.

The study has been a key factor in determining compensation for Vietnam veterans who are suffering from illnesses they believe are connected to Agent Orange.

Reporters for the Union -Tribune conducted interviews with military scientists and reviewed transcripts of meetings, government reports and internal memos that revealed major flaws in the ranch Hand study. Their findings include:

• A report expressing concerns about links to cancer and birth defects was altered to make the risks seem less serious.

• Two study reports revealing serious birth defects among the children of veterans were withheld for years.

• The government ignored a National Academy of Sciences recommendation that the study be done by independent scientists outside the military.

• High-ranking Air Force officers interfered with the study’s data analysis, undermining its integrity.

• The Air Force stonewalled a U.S. Senator who wanted full disclosure of the data.

Richard Albanese, one of four scientists, who designed the study and was later taken off the project, said that it was manipulated to downplay health problems of Vietnam veterans. "This is a medical crime, basically," Albanese said. "Certainly this is against all medical ethics."

Albanese said the study was tainted because a government agency, the Air Force, was allowed to investigate itself.

In 1984, the Air Force scientists drafted two major Ranch Hand reports. One was withheld and the other was published, but only after its findings were altered.

The report that was withheld showed high rates of birth defects and infant deaths in the children of ranch hand veterans. The original version of the Air Force report said that ranch hand veterans reported significantly more birth defects amongst their children than did other veterans.

After the White House panels advisory committee reviewed the report, those details were downplayed or eliminated. The committee recommended omitting the birth defects table; softening the birth defects language and dropping a sentence that said that Agent Orange might have harmed Ranch Hand veterans.

A sentence that said some of the findings "were of concern" was also eliminated. Instead, a line was added saying the overall findings were reassuring.

Other discrepancies were found in the reporting of cancers. A high skin cancer rate in the veterans was attributed to overexposure to the sun and these cancers were not added to the overall rate of cancers.

Although Albanese considered going public with his misgivings about the Ranch Hand study years ago, he decided against it because he didn’t want to jeopardize his career as a government scientist. Because of the flaws in the Ranch Hand Study, Albanese said, "Vietnam veterans have not received the compensation they deserve."

Compiled from a Special Report by Clark Brooks, Staff Writer for The San Diego Union-Tribune. The entire article may be found in the archives of the San Diego Union-Tribune on their web site at www.uniontrib.com .

So this is another example of the lies, deceit and cover-ups that are thrown in our way. What are we to do? Who do we have to turn to for the justice that we deserve?

It can’t be that everyone wants to cover this thing up surely. The original plan was a good one. Defoliate the enemy trails and their hideouts, deny them the cover they needed and destroy the crops that fed them. I don’t think that any of the forces have a problem with that, but since it became obvious that the chemicals were harming friendlies as well as the enemy why not just stop it and treat the friendlies, and that is what we are. We are not the enemy, we are the former armed forces of our respective countries and we expect better treatment than we have had.

Brief History of Agent Orange

• In the early years of W.W.II, a grant was provided by the National Research Council to develop a chemical to destroy rice crops in Japan (the major food source). 2,4-D and 2,4,5-T (Agent Orange) was the result. A discussion between President Roosevelt and White House Chief of Staff, Admiral William D. Leahy determined that this heinous chemical should not be used. Agent Orange was not used during WWII.

• In 1961, President Kennedy signed two orders allowing Agent Orange to be used in Vietnam. One order to destroy crops, and another order to defoliate the jungle. [This was prior to major U.S. intervention.] Agent Orange and other herbicides were used extensively through 1970 (and thereafter until the end of the war).

• A class action suit against seven chemical companies (Dow Chemical, Monsanto, Uniroyal, Hercules, Diamond Shamrock, Thompson Chemical, and T.H. Agriculture) was settled out of court in May 1984 for victims and families of those exposed to herbicides for $180,000,000 (the lawyers got a staggering 100 million dollars).

The Royal Commission into the Use and Effects of Chemical Agents on Australian Personnel in Vietnam took about two years and cost some 3.8 million dollars.

The Vietnam Veterans Association of Australia was not happy with the report and personally, I do not believe that any thinking person could have been.

The VVAA answered it this way. "Upon issue it immediately became apparent that the report was not the usual sober document which has come to be expected from Royal Commissions particularly when the Commissioner is a member of the judiciary. Even at first glance it is apparent that the report is shallow, expressed in extravagent terms and is in fact unhelpful to Vietnam veterans, Scientists, Lawyers and to others that argue that chemicals did or could have caused illness in Vietnam veterans. The report suggests that chemicals used in Vietnam are harmless; that this good news should be shouted from the rooftops and that a further $40,000.00 of taxpayers money should be made available to sell this claim around Australia.

One assumes that the Commissioner and council assisting proposed to move around the countryside shouting the good news from the rooftops.

All of this of course is quite absurd. An enquiry properly carried out and carefully reported needs no selling, it would speak for itself."

The report is full of contradictions, it states that veterans are ill, that we were exposed to chemicals and even makes recommendations for safe use of these chemicals in future (bearing in mind what happened in Vietnam) but says they had no effect on veterans.

So the Commission formed the view that Agent Orange can be harmful to human health (See Vol.2,p.v-19) but accepted that it didn’t harm veterans.

Apart from one epidemiologist in Australia and one in the United States all witnesses called by the commission as its own witnesses were called to prove chemicals harmless. In one instance, a Dr. Hay, a world authority on dioxin, was approached in England by Mr. Ellis a junior barrister. When Dr. Hay said that in his view dioxin was a dangerous substance, he was informed that he would not be required.

Ultimately, Dr. Hay was called at the insistance of the VVAA. Meanwhile Mr. Ellis managed to find another witness, Dr. Aldridge, who was of the opinion that chemicals of the type used in Vietnam were fairly harmless.

The transcript also shows that when witnesses were called at the insistence of the VVAA, Senior Counsel assisting the Commission attacked them in cross-examination in an endeavour to break down the evidence given by them.

Although this approach was singularly lacking in success, it is in marked contrast with his approach to witnesses called by Monsanto.

Those witnesses who were called at the insistence of the VVAA were denigrated whilst witnesses who took the opposite view were said to be "eminent".

The medical and scientific witnesses were handled in such a way that a conclusion was reached that veterans were not and presumably could not have been harmed by chemicals used in Vietnam.

Dr. Shearer gave evidence concerning the effects of 2,4,5 -T and 2,4 - D and other chemicals upon humans. Justice Evatt said at Vol 4 p. V111-290:- (Commissioners report)

"Her training was as a nurse. Her evidence was based on a literature research only. She has no personal experience in any of the relevant chemicals but claimed experience in genetic toxicology. Any experience in pharmacology was retricted to that gained during her nursing training.

Her expertise, by comparison with the toxicologists truly expert in the field is negligible."

From what Justice Evatt says you would think Dr. Shearer has trained as a nurse and is a self styled expert in genetic toxicology.

What Justice Evatt doesn’t say is that after obtaining her primary degree, a B.Sc in Nursing, Dr. Shearer then obtained an M.Sc in Genetics (1966); Ph.d in Genetics (1969) and subsequently was a Post Doctoral Fellow in Pathology, University of washington, Seattle.

She has researched carcinogenics by chemicals, virus and radiation; molecular mechanisms of normal genes and effects of gene reputation during development.

She has been head of the Department of Molecular Biology, Research Foundation, Seattle, Washington: Program Director for Cancer Research, Issaquah Health Research Institute.

In addition she has published as author or co-author some 18 publications. She has served on numerous scientific and semi governmental bodies as a scientist.

Dr. Shearer has served and still works as an independent consultant to members in the medical profession in the United States for people poisoned by 2,4 - D.

Yet, Justice Evatt plays down her qualifications to the extent of suggesting that she is no more than a nurse.

Compare Dr. Shearer’s treatment with Dr. Brusick who is described in the report as a "most eminent genetic toxicologist".

His Curriculum Vitae is similar to Dr. Shearer - B.Sc., M.Sc and Ph.D with some postgraduate and teaching experience. However, Dr. Brusick claims to be a vice-president of the Molecular Science Directorate and a Director of Biological Safety Evaluation Division in Litton Bionetics Icorporated. (Sounds very impressive)

In cross-examination by senior counsel from VVAA, it is learned that Litton Bionetics is a private company which is employed by (and these are Dr Brusicks own words) virtually every chemical company in the United States and probably all the major chemical companies in Europe". He is engaged as a witness in litigation for chemical companies and was unable to recall ever giving evidence against a chemical company.

It should have been obvious to the Commissioner and Counsel assisting that if this witness gave evidence unfavourable to chemical companies, his livelihood might well disappear.

The treatment of Dr. Shearer compared with Dr. Brusick is just one instance of the total lack of even-handedness in the treatment of witnesses and which view they supported.

It is incredible that the commission would use its time and funds to bring out a witness who is little more than a chemical company employee, use his evidence and describe the witness as an "eminent scientist".

More confusing still is, as Justice Evatt must have been well aware Dr. Brusick studied under a Professor Marvin Legator. Professor Legator does not work for chemical companies only, he is independent. He is often called as a witness in the United States of America to contradict Dr. Brusick and with a good deal of success it seems. Whilst Professor Legator may not have been able to come to Australia, it is quite astonishing that there is no reference in the report to Justice Evatt or his staff interviewing or attempting to interview the Professor in the United States of America.

Since the Commission called Dr. Brusick, the failure to attempt to hear the contrary evidence is quite astonishing in this type of enquiry.

This is not the only instance of the uneven view of the evidence as described in the report. Dr Sildergeld is the senior scientist and chairperson of the toxic chemical program of the prestigeous Environmental Defence Fund. Her qualifications and experience are very impressive. She gave evidence of her expertise and opinions.

A look at the transcript shows that her evidence was not shaken in cross examination despite a carefully researched and thoughly prepared attack upon her evidence by the Monsanto representative. The opinion of people who heard her evidence was that she was an extremely impressive witness.

Notwithstanding this, she is described at Vol 4, p. V111-264:-

"…an admitted role as advocate rather than detached scientist, her evasions and lack of frankness, her broad assertions unsupported by authority and her highly coloured exaggerations have been noted by the Commissioner."

A fair reading of the transcripts do not show the things the Commissioner noted.

Dr. Silderberg of course said that the chemicals were harmful.

It is instructive to note the Commissioner’s reference Vol. 4, p V111-264/265. This was evidence in chief led by counsel for the VVAA (Transcript 5573 and sec.). What Dr. Silderberg said was that the scientific work she relied upon said dioxin was a complete carcinogen. She said that the actual words "complete carcinogen" may not have been used; the words used may have been "initiator" and "promoter" which together mean "complete carcinogen". It is for this she is taken to task. It is difficult to believe that the report could be so petty and indeed leads to speculation that the report was published in the belief that noone would read the evidence given and compare it with the report. One can only wonder that Justice Evatt was unable to find any valid ground for criticism and so resorted to a play on words.

The Monsanto submissions suggested this was the way of disposing of her evidence, and the Commissioner was only too ready to adopt Monsanto’s suggestion.

It is surprising that Dr. Brusick is not an advocate but Dr. Silderberg is. It is even more surprising that if she is of the view that chemicals are harmful, she should be decried because she advocates care in dispersal and handling of these chemicals.

The report contains conclusions repeatedly based upon the same type of reasoning (if reason it can be called).

Other scientific witnesses called at the insistence of the VVAA were disposed of in a similar unfair manner. These are but some illustrations of the way the scientific evidence was dealt with to achieve what appears to be the desired result.

The medical and scientific witnesses were handled in such a way that a conclusion was reached that the veterans were not and presumably could not have been harmed by chemicals used in Vietnam.

Only three witnesses called at the Commission had actual experience in dealing with persons (not necessary veterans) exposed to herbicide. The three were Dr. Shearer, Dr. Van Tiggelen and Dr. Orris. Predictably, none were called by the Commission or by Monsanto. Monsanto’s reluctance might well be understood but the Commission apparently did not even try to obtain the services of such a person.

Dr. Shearer has been referred to above. She, it is claimed, only did literature searches, i.e. she reads all the information available on the chemicals. But she did more as previously pointed out - she read out the medical case histories of people who had been exposed and examined by medical practitioners. She had first hand knowledge of symptoms of exposure. Her evidence was rejected.

Dr. Van Tiggelen, a medical practitioner, gave evidence of his experience with chemical exposed persons whom he had examined. His evidence was rejected because it was said he was a general practitioner. What was not said was that Dr. Van Tiggelen’s clinical observations of veterans were for the purpose of treating them, not discovering how they became to be in the state of health he found them. He did observe similarities between them and members of the farming community who had been exposed to chemicals.

His evidence is rejected because he is a general practitioner, because he refers to chemicals not used in Vietnam which cause toxicity and because he did not link specific disabilities with specific chemicals. The Commissioner preferred the opinion of others who had not had the advantage of examining people with symptoms, i.e. witnesses Holmstedt and Aldridge.

Dr. Peter Orris was another witness who works with and who had actual experience with Vietnam veterans. His evidence of actual examination and diagnosis was rejected in favour of other witnesses who gave what was no more than scientific opinions based on experience other than the examination of human beings.

Whilst it may be the Commissions right to reject evidence it is extremely surprising that counsel assisting did not call any physician, neurologist or the like who had dealt with persons exposed to chemicals.

APPENDIX A:

Full report by Admiral Zumwalt to The Secretary of Veterans Affairs in the United States. This is as downloaded from the internet and can get a bit confusing because of bits that are missing. My apologies for that , they were obviously removed from the original report.

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2 See Bruce Myers, "Soldier of Orange: The Administrative, Diplomatic, Legislative and Litigatory Impact of Herbicide Agent Orange in South Vietnam," 8 B. C. Env’t. Aff. L. Rev. 159, 162 (1979).

3 See GAO Report, 1979 at 2, 3 n.1; See also Myers, 8 B.C. Env’t Aff. L. Rev, at 162. In contrast, civilian applications of 2,4,5—T varied from 1 to 4 pounds per acre.

4 General Accounting Office, ‘Ground Troops in South Vietnam Were in Areas Sprayed with Herbicide Orange," FPCD 80-23, p.1 (November 16, 1979).

5 Letter from Dr. James R. Clary to Senator Tom Daschle (September 9, 1988). Dr. Clary is a former government scientist with the Chemical Weapons. Branch,. BW/CW Division, Air Force Armament Development Laboratory, Eglin APE, Florida. Dr. Clary was instrumental in designing the specifications for the A/A 45y-l spray tank (ADO 42) and was also the scientist who prepared the

5

The bulk of Agent Orange herbicides used in Vietnam were reportedly sprayed from "Operation Ranch Hand" fixed wing aircraft. Smaller quantities were applied from helicopters, trucks, riverboats, and by hand. Although voluminous records of Ranch Hand missions are contained in computer records, otherwise known as the HERBS and Service HERBs tapes, a significant, if not major source of exposure for ground forces was from non— recorded, non Ranch Hand operations.

6

Widespread use of Agent Orange coincided with the massive buildup of U.S. military personnel in Vietnam, reaching a peak in

_________________

final report on Ranch Hand: Herbicide Operations in SEA, July 1979. According to Dr. Clary:

When we (military scientists) initiated the herbicide program in the 1960’s, we were aware of the potential for damage due to dioxin contamination in the herbicide. We were even aware that the ‘military6 formulation had a higher dioxin concentration than the ‘civilian’ version due to the lower cost and speed of manufacture. However, because the material was to be used on the ‘enemy’, none of us were overly concerned. We never considered a scenario in which. our own personnel would become contaminated with the herbicide. And, if we had, we would have expected our own government to give assistance to veterans so contaminated.

See also notes 13, 73-75 and accompanying text infra for additional information of the manufacturer’s awareness of the toxicity of Agent Orange.

6 Combat units, such as the ‘Brown Water Navy,’ frequently conducted "unofficial" sprayings of Agent Orange obtained from out of channel, and thus unrecorded sources. Additionally, as Commander, U.S. Naval Forces, Vietnam, I was aware that Agent Orange issued to Allied forces was frequently used on unrecorded missions.

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1969 and eventually stopping in 1971. 7 Thus, according to an official of the then Veterans Administration, it was "theoretically possible that about 4.2 million American soldiers could have made transient or significant contact with the herbicides because of [the Ranch Hand Operation]." 8

A. REASONS FOR PHASE OUT

Beginning as early as 1968, scientists, health officials, politicians and the military itself began to express concerns about the potential toxicity of Agent Orange and its contaminant dioxin to humans. For instance, in February 1969 The Bionetics Research Council Committee ("BRC’) in a report commissioned by the United States Department of Agriculture found that 2,4,5-T showed a "significant potential to increase birth defects." 9 Within four months after the BRC report, Vietnamese newspapers began reporting significant increases in human birth defects ostensibly due to exposure to Agent Orange.10

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7 GAO Report 1979, supra note 1, at 29. See also note 82 and accompanying text infra for a discussion of the correlation between the spraying of Agent Orange and the hospitalization of Vietnam soldiers for disease and non-battle related injuries.

8 House Comm. on Veteran’s Affairs, 95th Cong., 2d Sess., Herbicide "Agent Orange". Hearings before the Subcommittee on Medical Facilities and Benefits, (Oct. 11, 1978) (Statement of Maj. Sen. Garth Dettinger USAF, Deputy Surgeon General USAF at 12).

9 Myers at 166.

10 Id While birth defects did significantly increase in Saigon, critics contend that Saigon was not an area where the preponderance of defoliation missions were flown and argue that such increases were due primarily to the influx of U.S. medical personnel who kept better records of birth defects. Subsequent

7

By October, 1969, the National Institute of Health confirmed that 2,4,5—T could cause malformations and stillbirths in mice, thereby prompting the Department of Defense to announce a partial curtailment of its Agent Orange spraying.11

By April 15, 1970, the public outcry and mounting scientific evidence caused the Surgeon General of the United States to issue a warning that the use of 2,4,5-T might be hazardous to "our health". 12

On the same day, the Secretaries of Agriculture, Health Education and Welfare, and the Interior, stirred by the publication of studies that indicated 2,4,5-T was a teratogen (i.e. caused birth defects), jointly announced the suspension of its use around lakes, ponds, ditch banks, recreation areas and studies in Vietnam confirm the incidence of increased birth defects among civilian populations exposed to Agent Orange. See e.g. Phuong, et. al. "An Estimate of Reproductive Abnormalities in Women Inhabiting Herbicide Sprayed and Non-herbicide Sprayed Areas in the South of Vietnam, 152-1981 18 Chemospere 843-846 (1989) (significant statistical difference between hydatidiform mole and congenital malformations between populations potentially exposed and not exposed to TCDD); Phuong, et. al., "An Estimate of Differences Among Women Giving Birth to Deformed Babies and Among Those with Hydatidiform Mole Seen at the OB-GYN Hospital of Ho Chi Minh City in the South of Vietnam," 18 Chemosphere 801-803 (1989) (statistically significant connection between frequency of the occurrence of congenital abnormalities and of hydatidiform moles and a history of phenoxyherbicide exposure); Huong, et. al., "An Estimate of the Incidence of birth Defects, Hydatidiform Mole and Fetal Death in Utero Between 1952 and 1985 at the OB-GYN Hospital of Ho Chi Minh City, Republic of Vietnam," 18 Chemosphere 805-810 (l989) (sharp increase in the rate of fetal death in utero, hydatidiform mole (with or without choriocarcinoma) and congenital malformations from the pre 1965-1975 period, suggesting possible association to phenoxyherbicide exposure).

11 Myers at 167 Id.8

homes and crops intended for human consumption.13 The Department of Defense simultaneously announced its suspension of all uses of Agent Orange.14

B. HEALTH STUDIES

As Agent Orange concerns grew, numerous independent studies were conducted between 1974 and 1983 to determine if a link exists between certain cancerous diseases, such as non-Hodgkin’s lymphoma and soft-tissue sarcomas, and exposure to the chemical components found in Agent Orange. These studies suggested just such a link.

In 1974, for example, Dr. Lennart Hardell began a study which eventually demonstrated a statistically significant correlation between exposure to pesticides containing dioxin and the development of soft tissuesarcomas_________________________

13 Id. Although Dow Chemical Company, the primary manufacturer of 2,45-T and 2,4-D, denied this teratogenicity, Dow’s own tests confirmed that when dioxin was present in quantities exceeding production specifications, birth defects did occur. See J. McCullough, Herbicides: Environmental Health Effects: Vietnam and the Geneva Protocol: Developments During 1979, 13 (1970) (Congressional Research Report No. UG 447, 70—303SP). Pressure from industry subsequently led to some relaxation of the limits placed on the 2,4,5—T and 2,4—D. The only current uses for these chemicals in the United States are on rice, pastures, rangelands and rights of way.

14 Id. at 167. See also Dow Chemical v. Ruckelshaus, 477 F.2d 1317, 1319 (8th Cir. 1973) (secretaries announcement quoted in the opinion).

15 Hardell, L. and Sandstrom, A. "Case—control Study: Soft Tissue Sarcomas and Exposure to Phenoxyacetic Acids or Chlorophenols," 39 Brit. J. Cancer, 711—717 (1979). See also note 89 infra for the confirming results of follow-up studies by Hardell and others.

9

In 1974, Axelson and Sundell reported a two—fold increase of cancer in a cohort study of Swedish railway workers exposed to a variety of herbicides containing dioxin contaminants.16

By 1976, the Occupational Safety and Health Administration, established rigorous exposure criteria for workers working with 2,4, 5-T.1 17

In 1977 the International Agency for Research on Cancer (IARC), while cautioning that the overall data was inconclusive, reported numerous anomalies and increased mortality rates in animals and humans exposed to 2,4-D or 2,4,5T.18________________________

16 Axelson and Sundell, "Herbicide Exposure, Mortality and Tumor Incidence: An Epidemiological Investigation on Swedish Railroad Workers," 11 Work Env’t. Health 21-28 (1974).

17 U.S. Occupational Safety and Health Administration (1976), Air Contaminants; U.S. Code, Federal Register 29, Part 1910.93 at p. 27

18 With regard to 2,4-D, the IARC found the following anomalies: elevated levels of cancer in rats; acute and short—term oral toxicity in mice, rabbits, guinea pigs and rats-—death, stiffness in the extremities, incoordination, stupor, myotonia, and other physical abnormalities; inmonkeys, injections caused nausea, vomiting, lethargy, muscular incoordination and head droop, fatty degeneration of the liver, spleen, kidneys and heart; foetal anomaly increases in some species; post—birth death rates increased in some. species; higher mortality rates and morphological alterations in pheasant embryos and their chicks when spraying took place under simulated field conditions; higher mortality rates in rat pups in a 3 generation exposure; gene mutation after exposure to high concentrations; chromosomal aberrations when cultured human lymphocytes were exposed; increased frequency of aberrant metaphases (2 to 4 times) in mice exposed to toxic concentrations.

In humans the IARC found that: a 23 year old farming student, a suicide, had 6 grams of 2,4-D in his body, acute congestion of all organs, severe degeneration of ganglion cells in the central nervous system; 3 cases of peripheral neuropathy in humans sprayed with 2,4-D with initial symptoms of nausea, vomiting, diarrhea, swelling and aching of feet and legs with latency, in individual cases, paresthesia in the extremities, pain in the legs, numbness and aching of fingers and toes, swelling in hand joints, flaccid

10

In 1978, the Environmental Protection Agency issued an emergency suspension of the spraying of 2,4,5-T in national forests after finding "a statistically significant increase in the frequency of miscarriages" among women living near forests sprayed with 2,4,5-T.19

In 1980, another provocative mortality study of workers_____________________

parapheresis; similar case reports in agriculture workers sprayed by 2,4-D; workers associated with 2,4—D developed symptoms of somnolence, anorexia, gastralgia, increased salivation, a sweet taste in the mouth, a sensation of drunkenness, heaviness of the legs and hyperacusea, rapid fatigue, headache, loss of appetite, pains in the region of liver and stomach, weakness, vertigo, hypotension, bradycardia, dyspeptic symptoms, gastritis, liver disfunction, changes in metabolic processes..

With regard to 2,4,5—Vs effect on animals the IARC found: it can increase the frequency of cleft palates in some strains of mice; fetal growth retardation may also be observed; cystic kidneys were observed in two strains of mice; in purest available form, it induced some fetal effects and skeletal anomalies in rats as well as behavioral abnormalities, changes in thyroid activity and brain serotonin levels in the progeny; increases in intrauterine deaths and in malformations in rats; fetal death and teratogenic effects in Syrian golden hamsters; chromosomal abnormalities.

The IARC reported in 1977 with respect to 2,4,5-T’s effects on humans that: workers exposed at a factory in the USSR had skin lesions, acne, liver impairment, and neurasthenic syndrome; similar findings were reported by Jerasneh, et al (1973, 1974) in a factory in Czechoslovakia which in 1965—68 produced 76 cases of chloracne, 2 deaths from bronchogenic cancers. Some workers had porphyria cutanea tarda, urophryimuria, abnormal liver tests, severe neurasthenia, depression syndrome, peripheral neuropathy; in a 1975 accident in West Virginia, 228 people were affected. Symptoms included chloracne, melanosis, muscular aches and pains, fatigue, nervousness, intolerance to cold; 4 workers of 50 affected in a similar accident in the Netherlands in 1963 died within 2 years and at least 10 still had skin complaints 13 years later.

19 June 1979 Congressional Hearings before House Commerce Committee. Subcommittee on Oversight and Investigations, quoted in "Human Disease Linked to Dioxin: Congress Calls for 2,4,5—T Ban After Dramatic Herbicide Hearings", 28 Bioscience 454 (August 1979). This study, otherwise known as the Alsea Study, has been cited as showing the first correlation between 2,4,5—T (and presumably its TCDD contaminant) and teratogenic effects in humans.

11. involved in an accident at an industrial plant which manufactured dioxin compounds suggested that exposure to these compounds resulted in excessive deaths from neoplasms of the lymphatic and hematopoietic tissues. 20

On September 22, 1980, the U.S. Interagency Work Group to Study the Long-term Health Effects of Phenoxy Herbicides and Contaminants concluded "that despite the studies’ limitations, they do show a correlation between exposure to phenoxy acid herbicides and an increased risk of developing soft-tissue tumors or malignant lymphomas."21

To be sure, there remain skeptics who insist that the studies failed in one respect or another to establish a scientifically acceptable correlation.22 Yet, it can fairly be said that the general attitude both within and outside the scientific community was, and continues to be increasing concern over the mounting evidence of a connection between certain cancer

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20 Zack and Suskind, "The Mortality Experience of Workers Exposed to TCDD in a Trichlorophenol Process Accident," 22 Journal of Medicine 11—14 (1980).

21 See U.S. Interagency Workgroup to Study the Long-Term Health Effects of Phenoxy Herbicides and Contaminants (September 22, 1980) (executive summary).

22 See...e.g. "The Weight of the Evidence on the Human Carcinogenicity of 2,4—D" (January 1990) (This report, sponsored by the National Association of Wheat Growers Foundation and a grant from the Industry Task Force II on 2,4—D Research Data, an association of manufacturers and commercial formulators of 2,4—D, concluded that the toxicological data on 2,4-D does not provide a strong basis for predicting that 2,4-D is carcinogenic to humans. Nevertheless, the panel reviewing the evidence did conclude that "evidence indicates that it is possible that exposure to 2,4-D can cause cancer in humans.").

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illnesses and exposure to dioxins.

III. VETERANS’ DIOXIN AND RADIATION EXPOSURE COMPENSATION

STANDARDS ACT OF 1984

With the increasing volume of scientific literature giving credence to the belief of many Vietnam Veterans that exposure to Agent Orange during their military service was related to their contraction of several debilitating diseases -- particularly non-Hodgkin’s lymphoma, soft tissue sarcoma ("STS") (malignant tumors that form in muscle fat, or fibrous connective tissue) and porphyria cutanea tarda ("PCT") (deficiencies in liver enzymes) --Vietnam Veterans rightfully sought disability compensation from the Veterans Administration ("VA").

The VA determined, however, that the vast majority of claimants were not entitled to compensation since they did not have service connected illnesses. 23 As a consequence, Congress attempted to alter dramatically the process governing Agent Orange disability claims through passage of the Veterans’ Dioxin and Radiation Exposure Compensation Standards Act of 1984

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23 By October 1, 1983, 9170 veterans filed claims for disabilities that they alleged were caused by exposure to Agent Orange. The VA denied compensation to 7709 claimants on the grounds that the claimed diseases were not service connected. Only one disease was deemed associated with service related exposure to Agent Orange, a skin condition known as chloracne. See House Report No. 98-592, reprinted in U.S.Code Cong. & Adm. News, 98th Cong. 2d Sess.,1984, at 4452. See also Nehmer v. U.S. Veterans Administration, 712 F.Supp. 1404, 1407 (1989).

13

(hereinafter the "Dioxin Standards Act") 24 To ensure that the VA provided disability compensation to veterans exposed to herbicides containing dioxin while serving in Vietnam,25 Congress authorized the VA to conduct rulemaking to determine those diseases that were entitled to compensation as a result of a service--related exposure to Agent Orange.26

In promulgating such rules, the Dioxin Standards Act required the VA to appoint a Veterans’ Advisory Committee on Environmental Hazards (the "Advisory Committee") -- composed of experts in dioxin, experts in epidemiology, and interested members of the public -- to review the scientific literature on dioxin and submit periodic recommendations and evaluations to the Administrator of the 27 Such experts were directed to evaluate the scientific evidence pursuant to regulations promulgated by the VA, and thereafter to submit recommendations

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24 Veterans’ Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. 98—542, Oct. 24, 1984, 98 State. 2727 (hereinafter the Dioxin Standards Act). In passing the Act Congress found that Vietnam Veterans were "deeply concerned about possible long term health effects of exposure to herbicides containing dioxin,"(Section 2 (1)), particularly since "(t)here is scientific and medical uncertainty regarding such long—term adverse health effects." (Section 2 (2)). In responding to this uncertainty, Congress mandated that "thorough epidemiological studies of the health effects experienced by veterans in connection with exposure . to herbicides containing dioxin" be conducted, (Section 2(4)), especially in light of the fact that "[t)here is some evidence that chloracne, porphyria cutanea tarda, and soft tissue sarcoma are associated with exposure to certain levels of dioxin as found in some herbicides." (Section 2 (5)).

25 Id. at Section 3.

26 Id. at Section 5.

27 Id. at Section 6.

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and evaluations to the Administrator of the VA on whether "sound scientific or medical evidence" indicated a connection to exposure to Agent Orange and the manifestation of various diseases.28

In recognition of the uncertain state of scientific evidence and the inability to make an absolute causal connection between exposure to herbicides containing dioxin and affliction with various rare cancer diseases,29 Congress mandated that the VA Administrator resolve any doubt in favor of the veteran seeking compensation. As stated in the Dioxin Standards Act:

It has always been the policy of the Veterans Administration and is the policy of the United States, with respect to individual claims for service connection of diseases and disabilities, that when, after consideration of all the evidence and material of record, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of a claim, the benefit of the doubt in resolving each such issue shall be given to the claimant. 30

A. NEHMER V. U.S. VETERANS ADMINISTRATION

Despite Congressional intent to give the veteran the benefit of the doubt, and in direct opposition to the stated purpose of

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28 Id. at Section 5.

29 See Nehmer v. U.S. Veterans Admin., 712 F. Sup. 1404, 1408. (N.D. Cal. (1989). wherein the court found after reviewing the legislative history of the Act "that Congress intended service connection to be granted on the basis of "increased risk of incidence" or a "significant correlation" between dioxin and various diseases," rather than on the basis of a casual relationship.

30 See Dioxin Standards Act at Section 2 (23).

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the Dioxin Standards Act to provide disability compensation to Vietnam Veterans suffering with cancer who were exposed to Agent Orange, the VA continued to deny compensation improperly to over 31,000 veterans with just such claims. In fact, in promulgating the rules specified by Dioxin Standards Act, the VA not only confounded the intent of the Congress, but directly contradicted its- own established practice of granting compensable service-connection status for diseases on the lesser showing of a statistical association, promulgating instead the more stringent requirement that compensation depends on establishing a cause and effect relationship.31

Mounting a challenge to the regulations, Veterans groups prosecuted a successful legal action which found that the VA had "both imposed an impermissibly demanding test for grantingservice connection for various diseases and refused to give the

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31 See e.g. 38 C.F.R. 3.310(b) (compensation granted for cardiovascular diseases incurred by veterans who suffered amputations of legs or feet); Nehmer at 1418.

The significance of the distinction between a statistical association and a cause and effect relationship is in the burden of proof that the veteran must satisfy in order to be granted benefits. A statistical association "means that the observed coincidence in variations between exposure to the toxic substance and the adverse health effects is unlikely to be a chance occurrence or happenstance," whereas the cause and effect relationship "describes a much stronger relationship between exposure to a particular toxic substance and the development of a particular disease than ‘statistically significant association’ does." Nehmer, 712 F.Supp. at 1416.

Thus, the regulation promulgated by the VA established an overly burdensome standard by incorporating the causal relationship test within the text of the regulation itself. 38 C.F.R. 1 3.311(d) ("(s] ound scientific and medical evidence does not establish a cause and effect relationship between dioxin exposure" and any diseases except some cases of chloracne) (emphasis added).

16

veterans the benefit of the doubt in meeting the demanding standard." Nehmer v. U.S. Veterans Administration, 712 F. Sup. 1404, 1423 (1989) (emphasis in original). As a result, the court invalidated the VA’s Dioxin regulation which denied service connection for all diseases other than chloracne; ordered the VA to amend its rules; and further ordered that the Advisory Committee reassess its recommendations in light of the court’s order.32

Thus, on October 2, 1989, the VA amended 38 C.F.R. Part 1, which among other things set forth various factors for the Secretary and the Advisory Committee to consider in determining whether it is "at least as likely as not" that a scientific study shows a "significant statistical association" between a particular exposure to herbicides containing dioxin and a specific adverse health effect.33 Equally important, the

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32 Nehmer, 712 F. Sup at 1423.

33 38 C.F.R. 1.17 (b) & (d). 38 C.F.R. 1.17 states:

(a) From time to time, the Secretary shall publish evaluations of scientific or medical studies relating to the adverse health effects of exposure to a herbicide containing 2,3,7,8 tetrachlorodibenzo-p-dioxin (dioxin) and/or exposure to ionizing radiation in the "Notices" section of the Federal Register.

(b) Factors to be considered in evaluating scientific studies include:

(1) Whether the study’s findings are statistically significant and replicable.

(2) Whether the study and its findings have withstood peer review.

(3) Whether the study methodology has been sufficiently described to permit replication of the study.

(4) Whether the study’s findings are applicable to the veteran population of interest.

(5) The views of the appropriate panel of the Scientific Council of the Veteran’ Advisory Committee on Environmental Hazards.

(c) When the Secretary determines, based on the evaluation of

17

regulation permits the Secretary to disregard the findings of the Advisory Committee, as well as the standards set forth at 38

____________________

scientific or medical studies and after receiving the advice of the Veteran’s Advisory Committee on Environmental Hazards and applying the reasonable doubt doctrine as set forth in paragraph (d) (1) of this section, that a significant statistical association exists between any disease and exposure to a herbicide containing dioxin or exposure to ionizing radiation, 3.311a or 3.311b of this title, as appropriate, shall be amended to provide guidelines for the establishment of service connection.

(d) (1) For purposes of paragraph (c) of this section a "significant statistical association" shall be deemed to exist when the relative weights of valid positive and negative studies permit the conclusion that it is at least as likely as not that the purported relationship between a particular type of exposure and a specific adverse health effect exists.

(2) For purposes of this paragraph a valid study is one which:

(i) Had adequately described the study design and methods of data collection, verification and analysis;

(ii) Is reasonably free of biases, such as selection, observation and participation biases; however, if biases exist, the investigator has acknowledged them and so stated the study’s conclusions that the biases do not intrude upon those conclusions; and

(iii) Has satisfactorily accounted for known confounding factors.

(3) For purposes of this paragraph a valid positive study is one which satisfies the criteria in paragraph (d) (2) of this section and whose findings are statistically significant at a probability level of .05 or less with proper accounting for multiple comparisons and subgroups analyses.

(4) For purposes of this paragraph a valid negative study is one which satisfies the criteria in paragraph (d) (2) of this section and has sufficient statistical power to detect an association between a particular type of exposure and a specific adverse health effect if such an association were to exist.

(e) For purposes of assessing the relative weights of valid positive and negative studies, other studies affecting epidemiological assessments including case series, correlational studies and studies with insufficient statistical power as well as key mechanistic and animal studies which are found to have particular relevance to an effect on human organ systems may also be considered.

(f) Notwithstanding the provisions of paragraph (d) of this section, a "significant statistical association" may be deemed to exist between a particular exposure and a specific disease if, in the Secretary’s judgment, scientific and medical evidence on the whole supports such a decision.

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C.F.R. § 1.17 (d) and determine in his own judgment that the scientific and medical evidence supports the existence of a "significant statistical association" between a particular exposure and a specific disease. 38 C.F.R. § 1.17 (f).

The Secretary recently exercised his discretionary authority under this rule when he found a significant statistical association between exposure to Agent Orange and non—Hodgkin’s lymphoma, notwithstanding the failure of his own Advisory Committee to recommend such action in the face of overwhelming scientific data.34

B. . THE WORK OF THE VETERANS’ ADVISORY COMMITTEE ON ENVIRONMENTAL HAZARDS

To assess the validity and competency of the work of the Advisory Committee, I asked several impartial scientists to

______________________

34 After reviewing numerous scientific studies, at least four of which were deemed to be valid positive in demonstrating the link . between exposure to herbicides containing dioxin and non--Hodgkin’s lymphoma, the Advisory Committee still concluded that: The Committee does not find the evidence sufficient at the present time to conclude that there is a significant statistical association between exposure to phenoxy acid herbicides and non—Hodgkin’s lymphoma. However, the Committee cannot rule out such an association.

The Secretary should be interested to note that a new mortality study positively confirms that farmers exposed to herbicides containing 2,4-D have an increased risk of developing non-Hodgkin’s lymphoma. See Blair, "Herbicides and Non-Hodgkin’s Lymphoma: New Evidence From a Study of Saskatchewan Farmers," 82 Journal of the National Cancer Institute 575--582 (1990).

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review the Advisory Committee transcripts. Without exception, the experts who reviewed the work of the Advisory Committee disagreed with its findings and further questioned the validity of the Advisory Committee’s review of studies on non—Hodgkin’s lymphomas .

For instance, a distinguished group at the Fred Hutchinson Cancer Research Institute in Seattle, Washington, upon reviewing the Advisory Committee transcripts, concluded "that it is at east., as likely as not that there is a significant association (as defined by the Secretary of Veterans Affairs) between (exposure to phenoxy acid herbicides and non-Hodgkin’s lymphoma.)" 35 This same group further asserts that the Committee’s work was "not sensible" and "rather unsatisfactory" in its review and classification of the various studies it reviewed. Additionally, these scientists regarded Dr. Lathrop’s views as "less than objective" and felt that the possibility exists that "his extreme views (e.g., in respect to the role of dose--response testing) may have unduly affected the Committee’s work." Finally, the Hutchinson scientists argue that the issue of chemical-specific effects, in which animal studies have been sufficient to demonstrate the carcinogenicity of dioxin, is an important factor "not well cons idered by the Committee." (emphasis in original)

A second reviewer of the Committee’. work, Dr. Robert

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35 Letter to Admiral Zumwalt from Dr. Robert W. Day, Director of the Fred Hutchinson Cancer Research Center of Seattle, Washington (Feb. 20, 1990).

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Hartzman (considered one of the U.S. Navy’s top medical researchers), effectively confirms the views of the Hutchinson group. Dr. Hartzman states that "the preponderance of evidence from the papers reviewed [by the Advisory Committee) weighs heavily in favor of an effect of Agent Orange on increased risk for non—Hodgkin’s lymphoma."36 Dr. Hartzman also attests that:

an inadequate process is being used to evaluate scientific publications for use in public policy. The process uses scientific words like ‘significant at the 5% level’ and a committee of scientists to produce a decision about a series of publications. But in reality, the Committee was so tied by the process, that a decision which should have been based on scientific data was reduced to vague impressions... Actually, if the reading of the rules of valid negative found in the transcript is correct (‘a valid negative must be significant at the p=.05 level’ that is statistically significant on the negative side) none of the papers reviewed are valid negatives. 37

A third reviewing team, Dr. Jeanne Hager Stellman, PhD (Physical Chemistry) and Steven D. Stellman, PhD (Physical Chemistry), also echo the sentiments expressed by the Hutchinson Group and Dr. Hartzman on the validity of the Committee’s proceedings and conclusions. In fact, the Stellmans’ detailed annotated bibliography and assessment of numerous cancer studies relevant to herbicide exposure presents a stunning indictment of the Advisory Committee’s scientific interpretation and policy judgments regarding the link between Agent Orange and Vietnam

________________

36 Letter to Admiral Zumwalt from Dr. R.J. Hartzman Capt. MC USN (March 7, 1990).

37 Id. at p.3

21

Veterans . 38

A fourth reviewer, a distinguished scientist intimately associated with government sponsored studies on the effects of exposure to Agent Orange, states the same conclusions reached by the other reviewers:

The work of the Veterans’ Advisory Committee on Environmental Hazards, as documented in their November 2, 1989 transcript, has little or no scientific merit, and should not serve as a basis for compensation or regulatory decisions of any sort...

My analysis of the NHL articles reviewed by the committee reveals striking patterns which indicate to me that it is much more likely than not that a statistical association exists between NHL and herbicide exposure.

As these various reviewers suggest, the Advisory Committee’s conclusions on the relationship between exposure to Agent Orange and non—Hodgkin’s lymphoma were woefully understated in light of the clear evidence demonstrating a significant statistical association between NHL and exposure to phenoxy acid herbicides such as Agent Orange.

Perhaps more significant than the Committee’s failure to sake such obvious findings is the distressing conclusion of the independent reviewers that the Committee’s process is so flawed

_________________

38 See Stellman & Stellman, "A Selection of Papers with Commentaries Relevant to the Science Interpretation and Policy: Agent Orange and Vietnam Veterans,’ (March 1, 1990) . See also note 51 and accompanying text infra for additional discussion of the Stellmans’ work.

39 A copy of the anonymous reviewer’s analysis can be madeavailable for the Secretary’s personal .inspection and review. In another paper, this same source stated: "I estimate that the Vietnam Veterans are experiencing a 40% to 50% increase in sarcomas and non--Hodgkin’s lymphoma rates."

22

as to be useless to the Secretary in making any determination on the effects of Agent Orange. From a mere reading of Committee transcripts, these reviewers detected overt bias in the Committee’s evaluation of certain studies. In fact, some members of the Advisory Committee and other VA officials have, even before reviewing the evidence, publicly denied the existence of a correlation between exposure to dioxins and adverse health effects.40 This blatant lack of impartiality lends credence to the suspicion that certain individuals may have been unduly influenced in their evaluation of various studies. Furthermore, such bias among Advisory committee members suggests that the Secretary should, in accordance with the Dioxin Standards Act, appoint new personnel to the Advisory Committee.

III. THE CDC STUDIES

Were the faulty conclusions, flawed methodology and noticeable bias of the Advisory Committee an isolated problem, correcting the misdirection would be more manageable. But, experience with other governmental agencies responsible for specifically analyzing and studying the effects of exposure to

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40 For instance, Dr. Lawrence B. Hobson (Director, Office of Environmental Medicine, Veterans Health Services and Research Administration), claims that TCDD ‘presents no threat from the exposures experienced by the veterans and the public at large," and virtually accuses scientists who find that such health effects do exist to be nothing more than witch doctors. See Hobson, ‘Dioxin and Witchcraft" presented at the 5th InternatiOnal Symposium on Chlorinated Dioxins and Related Compounds (September 1985) .

23

Agent Orange strongly hints at a discernible pattern, if not outright governmental collaboration, to deny compensation to Vietnam Veterans for disabilities associated with exposure to dioxin .

A case in point is the Centers for Disease control ("CDC") . As concerns grew following the first studies of human exposure to Agent Orange, Congress commissioned a large scale epidemiological study to determine the potential health effects for Vietnam Veterans exposed to Agent Orange. Initially, this study was to be conducted by the VA itself. When evidence surfaced, however, of the VA’s footdragging in commencing the study (and initial disavowal of any potential harm from exposure to Agent Orange), Congress transferred the responsibility for the study to the CDC in 1983. 41

Unfortunately, as hearings before the Human Resources and Intergovernmental Relations Subcommittee on July 11, 1989 revealed, the design, implementation and conclusions of the CDC study were so ill conceived as to suggest that political pressures once again interfered with the kind of professional, unbiased review Congress had sought to obtain.42

The Agent Orange validation study, for example, a study of

_______________________

41 See 135 Congressional Record, Statement of Senator Tom Daschle (November 21, 1989); See also Agent Orange Hearings at p.37.

42 Oversight Review of CDC’s Agent Orange Study: Hearing Before the Human Resources and Intergovernmental Relations Subcommittee of the Committee on Government Overations House of Representatives, 101st Cong., 1st Sess. at p. 71 and 330 (1989) [hereinafter cited as Agent Orange Hearing].

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the long—term health effects of exposures to herbicides in Vietnam, was supposedly conducted to determine if exposure could, in fact, be estimated.43 After four years and approximately $63 million in federal funds, the CDC concluded that an Agent Orange exposure study could not be done based on military records. 44 This conclusion was based on the results of blood tests of 646 Vietnam Veterans which ostensibly demonstrated that no association existed between serum dioxin levels and military— based estimates of the likelihood of exposure to Agent Orange.45 Inexplicably, the CDC then used these "negative" findings to conclude that not only could an exposure study not even be done, but that the "study" which was never even conducted proves that Vietnam Veterans were never exposed to harmful doses of Agent Orange.

Even more disturbing, when the protocol for this "study" and the blood test procedures were examined further, there appeared to be a purposeful effort to sabotage any chance of a meaningful Agent Orange exposure analysis. For , the original protocol for the Agent Orange exposure study understandably called for subject veterans to be tracked by company level

______________________

43 Id. at 37; See also, Protocol for Epidemiologic Studies of the Health of Vietnam Veterans, Centers for Disease Control, Public Health Service, U.S. Department of Health and Human Services (November, 1983).

44 Agent Orange Hearings at 13 (Statement of Dr. Vernon Houk).

45 Id. at 12—13.

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location.46 By tracking company level units of 200 men, rather than battalions of 1,000 men, the location of men in relation to herbicide applications would be known with greater precision, thereby decreasing the probability that study-subjects would be misclassified as having been or not been exposed to Agent Orange.

However, in 1985 the CDC abruptly changed the protocol to have battalions, rather than companies, serve as the basis for cohort selection and unit location. 47 By the CDC’s own admission, changing the protocol to track veterans on the broader batta1ion basis effectively diluted the study for the simple reason that many of the 1,000 men in a battalion were probably not exposed to Agent Orange. Why then did the CDC change the protocol in 1985?

According to Dr. Vernon Houk, Director of the Center for Environmental Health and Injury control, the department within the CDC responsible for conducting the Agent Orange study, the protocol was changed because the CDC concluded that company— specific records were unreliable and contained too many gaps of information. As a result, military records could simply not be used to assess exposure.48

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46 Id. at 4l.

47 Id. at 38.

48 Agent Orange Hearing: Testimony of Dr. Vernon Houk at 38-40 and 69. Dr. Houk sports an unbounded skepticism for the health hazards of dioxin. He recently endorsed the lessening of the dioxin dumping standard in the State of Georgia at a rate 500 times more lenient than EPA recommended guidelines. See Letter from Dr. Vernon N. Houk to Leonard Ledbetteber, Commissioner Georgia Department of Natural Resources (November 27, 1989)

26

Richard Christian, the former director of the Environmental Study Group of the Department of Defense ("ESG") testified that not only was this conclusion false, but that he had personally informed the CDC that adequate military records existed to identify company—specific movements as well as spray locations.49 Furthermore, in a February 1985 report to the Congressional Office of Technology Assessment, the CDC reported that in analyzing 21 of 50 detailed computer HERBs tapes developed by the ESG on company movements that it was possible to correlate the exposure data to areas sprayed with Agent Orange with consistent results.50 Indeed, a peer reviewed study sponsored by the American Legion conclusively demonstrated that such computerized data could be used to establish a reliable exposure classification system essential to any valid epidemiologic study of Vietnam Veterans.51

In addition to altering the protocol from company units to battalions, the CDC further diluted the study by changing the protocol on the length of time study subjects were to have served in Vietnam. Whereas the original protocol required subjects to have served a minimum of 9 months in combat companies, the CDC reduced the minimum to 6 months. Furthermore, the CDC eliminated

_____________________

49 Agent Orange Hearing, Testimony of Richard Cheristian at 41.

50 Interim Report, Agent Orange Study: Exposure Assessment: Procedures and Statistical Issues. See Also American Legion Magazine Special Issue, "Agent Orange" (1990) at p. 12.

51 Agent Orange Hearing 155-220 (Testimony of Steven and Jeanne Stellman); American Legion and Columbia University Vietnam Experience Study, Environmental Research (December, 1988).

27

from consideration all veterans who served more than one tour in Vietnam. Finally, while the original protocol called only for subjects who served in Vietnam from 1967 to 1968, the years that Agent Orange spraying was at its height, the CDC added an additional 6 months to this time period. The net effect of these various changes was seriously to dilute the possibility that study subjects would have been exposed to Agent Orange, which in turn would impair any epidemiological study’s ability to detect increases in disease rate.52

Although the above referenced problems cast serious suspicion on the work of the CDC, perhaps its most controversial

__________________

52 Agent Orange Hearing at 46-49. This "dilution effect" is considered the classic flaw in epidemiological study design. most epidemiologists would try to optimize the chances of observing an effect by including, rather than excluding, the subjects who are most likely to have been exposed to the suspected disease causing agent. This statistical ability to observe an effect if one is present is generally referred to as the "statistical power" of a given study.

When the CDC chose to generalize exposure to Agent Orange to groups of veterans who were less likely, rather than more likely, to be exposed, the power of the study was diluted. For example, if we assume that 1 out of every 5 men who served in Vietnam was exposed to Agent Orange, any possible effects of the exposure will be diluted when the 4 non—exposed men are averaged in. If we assume further that exposure to Agent Orange caused a doubling of the incidence of cancers among the 20% of men exposed, the effect would largely be obscured since 80% of the group being studied would not have been sprayed with Agent Orange and would thus have a normal background rate of cancer. Consequently, only exceptionally large increases in the cancer rate would be discovered and or reach statistical significance in a study group so diluted from the outset. See Agent Orange Hearing at 149 (Testimony of John F. Sommer, Jr., Director National Veterans Affairs and Rehabilitation commission the American Legion).

See also Agent Orange Legislation and Oversight: Hearing Before the Committee on Veterans’ Affairs, United States Senate, 100th Cong.,(May 12, 1988) (Testimony of Dr. Joel Nichalek) at pp. 65, 66 and 668.

28

action was to determine unilaterally that blood tests taken more than 20 years after a veteran’s service in Vietnam were the only valid means of determining a veteran’s exposure to Agent Orange. In addition, Dr. Houk further "assumed" that the half—life for dioxin in the blood was seven years. 53 When the underlying data for Houk’s assumptions were recently reviewed, however, 11 percent of the blood tests were invalid (i.e. study subjects had higher values of dioxin in their blood in 1987 than in 1982 even though the subjects had no known subsequent exposure to dioxin) and the half lives of dioxin in the remaining study subjects ranged from a low of 2 to a high of 740 years! 54 Yet despite this tremendous variance in the data and the high incidence of false results, Houk and the CDC concluded, rather remarkably, that a large scale exposure study was simply not possible since "negative" blood tests appeared to "confirm" that study subjects were not even exposed to Agent Orange.

Such conclusions are especially suspect given the fact that scientists have consistently cautioned against the use of blood tests as the sole basis for exposure classification. Although blood and adipose tissue tests can be used to confirm that___________________

53 Agent Orange Hearing at 59. Dr. Houk’s assumption was based on a study of only 36 former Ranch Handers (members of "Operation Ranch Hand," the Air Force herbicide defoliation program) who had volunteered blood samples in 1982 and 1987.

54 American Legion Magazine Reprint "Agent Orange" at 12 See also Agent Orange Hearing at p. 67 (testimony of Dr. Houk revealed that the senior-statistician on the Agent Orange project believed that the dioxin blood analysis was so flawed there is a substantial likelihood that there is no correlation between the exposure scores and the blood levels).

29

Vietnam veterans were heavily exposed to Agent Orange and the contaminant dioxin55, even the CDC’s own researchers have unequivocally stated that "much more has to be learned about the kinetics of dioxin metabolism and half-life before current levels can be used to fully explain historic levels of exposure."56

While the CDC’s changes in protocol have been "justified", however unreasonably, on the basis of "scientific" explanations57, what cannot be justified is the evidence of political interference in the design, implementation and drafting of results of the CDC study by Administration officials rather than CDC scientists. As early as 1986, the Subcommittee on Oversight and Investigations of the Committee on Energy and Commerce documented how untutored officials of the Office of Management and Budget (0MB) interfered with and second-guessed the professional judgments of agency scientists and multidisciplinary panels of outside peer review experts

____________________

55 See Kahn, "Dioxins and Dibenzofurans in Blood and Adipose Tissue of Agent Orange Exposed Vietnam Veterans and Matched Controls," 259 Journal of the American Medical Association 1661 (1988). This report found that "Vietnam veterans who were heavily exposed to Agent Orange. exceeded matched control subjects in both blood, and adipose tissue levels of 2,3,7, 8—tetrachlorodibenzo-p— dioxin (TCDD) but not in the levels of the 12 other 2,3,7,8-substituted dioxins and Dibenzofurans that were detected. Since only TCDD among these compounds was present in Agent Orange but all are present in the population of the industrialized world, it is likely that the elevated TCDD levels arose from wartime exposure."

56 Patterson, "Levels of Polychlorinated Dibenzo-p-dioxins and Dibenzofurans in Workers Exposed to 2,3,7,8 --tetrachlorodibenzo-p—dioxin,. 16 American Journal of Industrial Medicine 135, 144 (1989).

57 See generallv, Agent Orange Hearing (Testimony of Dr. Vernon Houk) at 44--50.

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effectively to alter or forestall CDC research on the effects of Agent Orange, primarily on the grounds that "enough" dioxin research had already been done.58 These Agent Orange Hearings revealed additional examples of political interference in the CDC~s Agent Orange projects by members of the White House Agent Orange Working Group.59

Dr. Philip 3. Landrigan, the former Director of the Environmental Hazards branch at the CDC, upon discovering the various irregularities in CDC procedures concluded that the errors were so egregious as to warrant an independent investigation not only of the methodology employed by the CDC in its validation study, but also a specific inquiry into what actually transpired at the Center for Environmental Health of the CDC.60

With these suspicions in mind, it should come as no surprise that those familiar with the CDC~s work found little credence in the conclusions reached by the CDC in its recently released Selected Cancers Study. Even though the CDC has previously stated that it believes exposure to Agent Orange is impossible to assess, it found no difficultly in reporting to the press upon the release of the Selected Cancers Study that exposure to Agent___________________

58 OMB Review of CDC Research: Impact of the Paperwork Reduction Act; A Report Prepared for the Subcommittee on Oversight and Investigations of the Coumittee on Energy and Commerce, 99th Cong. 2nd Sess. (October 1986).

59 See Agent Orange Nearing at 49-54 (Testimony of Dr. Vernon Houk).

60 Agent Orange Hearing at 229 and 330

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Orange does not cause cancer. This conclusion was reached despite the fact that the CDC made no effort to determine, through military records or blood/adipose tissue tests, if study subjects were, indeed, exposed to dioxins; nor did the CDC attempt to verify exposure to Agent Orange of those study subjects who actually contracted cancerous diseases. In fact, according to scientists who have made preliminary reviews of the CDC’s findings, the statistical power of any one cancer grouping, with the exception of non—Hodgkin’s lymphoma, was so low as to make any conclusion virtually impossible.

IV. RANCH HAND STUDY

Unfortunately, political interference in government sponsored studies associated with Agent orange has been the norm, not the exception. In fact, there appears to have been a systematic effort to suppress critical data or alter results to meet preconceived notions of what alleged scientific studies were meant to find.61 As recently as March 9, 1990 Senator Daschle disclosed compelling evidence of additional political interference in the Air Force Ranch Hand study, a separate government sponsored study meant to examine the correlation between exposure to Agent Orange and harmful health effects among Air Force veterans who participated in Agent Orange spraying

61 See generallv Agent Orange Nearing; Congressional Record, S 2550 (March 9, 1990); Congressional Record, (November 21, 1989) (Statements of Senator Thomas Daschle).

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missions under Operation Ranch Hand. As Senator Daschle explained: In January 1984, the scientists in charge of the Ranch Hand Study issued a draft baseline morbidity report that described some very serious health problems in the Ranch Hand veterans and stated that the Ranch Handers, by a ratio of five to one, were generally less well than the veterans in the control group. The opening sentence of the draft report’s conclusion was clearly stated: "It is incorrect to interpret this baseline study as ‘negative.’

After the Ranch Hand Advisory Committee, which operates under the White House Agent Orange Working Group of the Domestic Policy Council, got its hands on the document, the final report was changed in some very important ways. Most notably, the table and exposition explaining that the Ranch Handers were generally less well than the controls was omitted, and the final conclusion was altered substantially. The statement that the baseline study was not negative was completely omitted and the study was described as "reassuring." 62

By altering the study’s conclusion, opponents of Agent Orange compensation were able to point to "irrefutable proof" that Agent Orange is not a health problem: if those veterans most heavily exposed to Agent Orange did not manifest any serious health problems, they argued, then it could safely be deduced that no veteran allegedly exposed to Agent Orange in smaller doses could have health problems. Yet, when Senator Daschle questioned Air Force scientists on why discrepancies existed between an Air Force draft of the Ranch Hand Study and the final report actually released to the press, the answers suggested not merely disagreements in data evaluation, but the perpetration of fraudulent conclusions. In a word, the major premise was badly

_______________________

62 See Congressional Record S 2550 (March 9, 1990)

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flawed.

For example, in 1987 Ranch Hand scientists confirmed to Senator Daschle that an unpublished birth defects report shows that birth defects among Ranch Hand children are double those of children in the control group and not "minor" as originally reported in l984.63

This increase in birth defects takes on added significance when one considers that the original CDC birth defects study, which found no increase in birth defects, merely examined birth defects as reported on birth certificates, rather than as reported by the child’s parent or physician. The CDC never recorded hidden birth defects, such as internal organ malformations and other disabilities that only became apparent as the child developed. Consequently, it is very likely that the CDC’s negative findings on birth defects were also vastly understated.64

In addition to elevated birth defects, Ranch Handers also showed a significant increase in skin cancers unrelated to overexposure to the sun as originally suggested in the 1984 report. Air Force scientists also admitted that Air Force and White House Kanagement representatives were involved in____________________

63 Congressional Record, (November 21, 1989) (Statement of Senator Thomas Daschle).

64 The CDC birth defects study was confined to Vietnam Veterans located in the Atlanta, Georgia region. The study was not an Agent Orange birth defects study since no effort was made to determine whether the veterans had even been exposed to Agent orange. See notes 10 and 18 supra for additional information on birth defects.

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scientific decisions in spite of the study’s protocol which prohibited such involvement.65

On February 23, 1990, the Air Force released a follow-up morbidity report on the Ranch Handers. That report, "1987 Followup Examination Results," described statistically significant increases in health problems among Ranch Handers including: all cancers —— skin and systemic combined, both verified and suspected; skin cancers alone; hereditary and degenerative neurological diseases and other problems. The Air Force-concluded, however, that these and other problems cannot necessarily be related to Agent Orange/dioxin exposure, as they do not always show a "dose-response" relationship — particularly since the exposure index used in the data analysis "is not a good measure of actual dioxin exposure." 66

With this conclusion, the Air Force for the first time officially acknowledged that the conclusions reached in its original 1984 Ranch Hand study are not simply moot, but that the Ranch Hand study is not, at this date, an Agent Orange study at all since dioxin exposure could not be determined reliably in the first place. In other words, the Air Force could just as easily have concluded that the health problems associated with the Ranch Handers were not necessarily related to eating beer nuts.

_________________________

65 Congressional Record, S 2551 (March 9, 1990) (Statement of Senator Daschle).

66 Wolfe, St. al., Air Farce Health Study and Epidemiologic Investigation of Health Effects in Air Force Personnel Following Exposure to Herbicides (Feb. 1990) at p. vi.

35

For the Air Force to have made the statement in 1990 of no evidence of a link between exposure to Agent Orange and the cancer problems experienced by Ranch Handers is, as Senator Daschle notes, "patently false."67. Although not yet conclusive, what the Ranch Hand and CDC studies demonstrate is that there is evidence of a link between health problems and dioxin exposures which may become definitive when a new and reliable exposure index is used to evaluate the data.

As stated by Dr. James Clary, one of the scientists who prepared the final Ranch Hand report:

The current literature on dioxin and non--Hodgkin’s lymphoma and soft tissue sarcoma can be characterized by the following:

1. It underestimates (reduced risk estimates) the effect of dioxins on human tissue systems. As additional studies are completed we can expect to see even stronger correlations of dioxin exposure and NHL/STS.

2. Previous studies were not sensitive enough to detect small, but statistically significant increases in NHL/STS. As time progresses, and additional evidence is forthcoming, it will be increasingly difficult for anyone to deny the relationship between dioxin exposure and NHL/STS

V. INDEPENDENT STUDIES

Shamefully, the deception, fraud and political interference that has characterized government sponsored studies on the health

____________________________

67 Congressional Record 5. 2551 (March 9, 1990). See also Letter from Maj. Gen. James G. Sanders, U.S.A.F. Deputy Surgeon General to Senator Thomas Daschle (February 23, 1990).

68 Letter from Dr. James Clary to Senator Tom Daschle (September 9, 1988).

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effects of exposure to Agent Orange and/or dioxin has not escaped studies ostensibly conducted by independent reviewers, a factor that has only further compounded the erroneous conclusions reached by the government.

For instance, recent litigation against the Monsanto corporation revealed conclusive evidence that studies conducted by Monsanto employees to examine the health effects of exposure to dioxin were fraudulent. These same fraudulent studies have been repeatedly cited by government officials to deny the existence of a relationship between health problems and exposure to Agent Orange. According to court papers:

Zack and Gaffey, two Monsanto employees, published a mortality study purporting to compare the cancer death rate amongst the Nitro workers who were exposed to Dioxin in the 1949 explosion with the cancer death rate of unexposed workers. The published study concluded that the death rate of the exposed worker was exactly the same as the death rate as the unexposed worker. However, Zack and Gaffey deliberately and knowingly omitted 5 deaths from the exposed group and took 4 workers who had been exposed and put these workers in the unexposed group, serving, of course, to decrease the death rate in the exposed group and increase the death rate in the unexposed group. The exposed group, in fact, had 18 cancer deaths instead of the reported 9 deaths (P1. Ex. 1464), with the result that the death rate in the exposed group was 65% higher than expected (emphasis in original)69.

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69 Brief of Plaintiffs-appellees in Kemner. et. al. v. Monsanto Company, No. 5--88--0420 (5th Dist., Illinois Appellate Court) (Oct. 3, 1989) (as the facts were proven at trial, the appeal only considered appealable matters of law). Plaintiff’s brief refers to Zack and Gaf fey, "A Mortality Study of Workers Employed at the Monsanto Company Plant in Nitro, WV,. man Environmental Risks of Chlorinated Dioxins and Related Compounds (1983) pp. 575--591. It should be noted that the Advisory Committee classified this report as "negative" in evaluating compensation for NHL

The brief also states that another study of the workers exposed in the 1949 accident was also fraudulent (e.g. R.R. Suskind

37

Similarly, recent evidence also suggests that another study heavily relied upon by those opposed to Agent Orange compensation to deny the existence of a link between dioxin and health effects was falsified. Three epidemiologic studies and several case report studies about an 1953 industrial accident in which workers at a BASF plant were exposed to dioxins concluded that exposure to TCDD did not cause human malignancies.70 A reanalysis of the data that comprised the studies, all of which was supplied by the BASF company itself, revealed that some workers suffering from chloracne (an acknowledged evidence of exposure to dioxin) had actually been placed in the low--exposed or non--exposed cohort groups. Additionally, 20 plant supervisory personnel, not believed to have been exposed, were placed in the exposed group.

When the 20 supervisory personnel were removed from the exposed group, thereby negating any dilution effect, the reanalysis revealed statistically significant increases in cancers of the respiratory organs (lungs, trachea, etc.) and

_________________________

and V.S. Hertzberg, "Human Health Effects of 2,4,5-T and Its Toxic Contaminants," Journal of the American Medical Association, Vol. 251, No. 18 (1984) pgs. 2372-2380.) The study reported only 14 cancers in the exposed group and 6 cancers in the unexposed group. Trial records conclusively demonstrated, however, that there were 28 cancers in the group that had been exposed to dioxins, as opposed to only 2 cancers in the unexposed group.

70 See e.g. Thiess, Frentzel-Beyme, Link, "Mortality Study of Persons Exposed to Dioxin in a Trichlorophenol Process Accident that occurred in the BASF AG on November 17 , 1953", 3 American Journal of Industrial Medicine 179—189 (1982)

38

cancers of the digestive tract.71 According to the scientist who conducted this study, "t)his analysis adds further evidence to an association between dioxin exposure and human malignancy."72

Recent evidence also reveals that Dow Chemical, a manufacturer of Agent Orange was aware as early as 1964 that TCDD was a byproduct of the manufacturing process. According to Dow’ s then medical director, Dr. Benjamin Holder, extreme exposure to dioxins could result in "general organ toxicity" as well as "psychopathological" and "other systemic" problems. 73 In fact, a

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71 Friedemann Rohleder, "Dioxins and Cancer Mortality Reanalysis of the BASF Cohort," presented at the 9th International Symposium on Chlorinated Dioxins and Related Compounds, Toronto, Ontario (Sept. 17-22, 1989). BASF recently published a study in an attempt to refute the allegations that the original studies related to the accident were fraudulent. See Zobier, Messerer & Huber, "Thirty Four Year Mortality Follow Up of BASF Employees, 62 Occupational Environmental Health 139-157, (Oct. 19, 1989). While the company states that "there was no significant increase in deaths from malignant neoplasms," the study does conclude that:

There was, however, a significant excess for all cancers combined among the chloracne victims 20 or more years after initial exposure when an excess would be most likely to occur. In addition, there is the notable finding on one case of liver cancer without cirrhosis in a worker with an exceptionally high level of TCDD in the blood.

Id. at 155. See also id. at 139 ("In general, our results do not appear to support a strong association between cancer mortality and TCDD, but they do suggest that some hazard may have been produced.) (emphasis added) and 149 ("Although TCDD blood levels were available for only 5 of the 10 subjects, the three highest levels were found in subjects with liver cancer, leucosis and Merkell—cell carcinoma of the skin.").

72 Wanchinski, "New Analysis Links Dioxin to Cancer," New Scientist, (Oct. 28, 1989) p. 24.

73 See L. Casten, Patterns of Secrecy: Dioxin and Agent Qrange (1990) (unpublished manuscript detailing the efforts of government and industry to obscure the serious health consequences of exposure to dioxin).

39

recent expert witness who reviewed Dow Chemical corporate documents on behalf of a plaintiff injured by exposure to dioxin who successfully sued Dow74 states unequivocally that "the manufacturers of the chlorphenoxy herbicides have known for many years about the adverse effects of these materials on humans who were exposed to them."75

VI. CURRENT SCIENCE ON HEALTH EFFECTS OF HERBICIDES AND DIOXIN

Despite its poor record in carrying out its responsibility to ascertain the health effects of exposure to Agent Orange, the CDC has been candid in some of its findings. As early as 1983, for instance, the CDC stated in the protocol of its proposed Agent Orange Studies "(t)hat the herbicide contaminant TCDD is considered to be one of the most toxic components known. Thus any interpretation of abnormal findings related to 2,4,5—T must take into consideration the presence of varying or undetermined

_________________

74 Peteet v. Dow Chemical Co., 868 F.2d 1428 (5th Cir. 1989) cert...denied 110 S.Ct. 328 (1989).

75 Letter from Daniel Teitelbaum, M.D., P.C. to Admiral E.R. Zumwalt, Jr. (April 18, 1990). Dr Teitelbaum additionally states:

What I do think...may bear on the Agent Orange issue, is the fact that in review of Dow’s 2,4-D documentation I found that there are significant concentrations of potentially carcinogenic materials present in 2,4-D which have never been made known to the EPA, FDA, or to any other agency. Thus, in addition to the problem of the TCDD which, more likely than not, was present in the 2,4,5--T component of Agent Orange, the finding of other dioxins and closely related furans and xanthones in the 2,4--D formulation was of compelling interest to me.

40

amounts of TCCD." 76

In 1987, after first being leaked by the New York Times, a VA mortality study was released indicating a 110 percent higher rate of non-Hodgkin’s lymphoma in Marines who served in heavily sprayed areas as compared with those who served in areas that were not sprayed. 77 The study also found a 58 percent higher rate of lung cancer among the same comparative groups . 78

Also in 1987, a second VA study found a suggestive eight-fold increase in soft tissue sarcoma among veterans most likely to___________________________

76 CDC Protocol, see note 1 supra The CDC went on to state that a wide variety of health effects have been observed following the administration of TCDD to experimental animals including soft tissue sarcomas and lymphoma1 nasal and nasopharyngeal cancers, birth defects, changes in thymus and lymphoid tissues, and other numerous cancers. Additionally, the CDC acknowledged the toxic effects of occupational exposure to dioxin, including evidence that exposure "may be associated with an increased risk of soft tissue sarcoma and lymphoma" and perhaps nasal and nasopharyngeal cancers.

77 Breslin, et. al. "Proportionate Mortality Study of U.S. Army and U.S. Marine Corps Veterans of the Vietnam War," Veterans Administration (1987).

78 Id. Some scientists, including the Advisory Committee have attempted to denigrate these significant findings on the basis that Army personnel did not show similar results. The explanation for this lack of comparative Army findings is directly attributable to the dilution effect caused by including logistics personnel as part of the Army study. Marines were studied as a separate group. The Marine’s logistical support personnel (i.e. the Navy), were not included. Thus, the increased cancers among Marines were clearly associated with field exposure to Agent Orange.

The Army study, on the other hand, combined field personnel with personnel on logistics assignments who were unlikely to have been exposed to Agent Orange. As a result, the Army findings were drastically diluted. Additionally, Army personnel generally engaged the enemy and returned to base, whereas Marines consistently remained in areas presumably sprayed by Agent Orange to provide medical, health and engineering assistance to the local population. Such "pacification" efforts gave Marines additional opportunities to be exposed to dioxins.

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have been exposed to Agent Orange.79

A proportionate mortality study of deaths in pulp and paper mill workers in New Hampshire from 1975 to 1985 showed that one or more of the exposures experienced by such workers (dioxin is a byproduct of pulp and paper production) posed a "significant risk" for cancers of the digestive tract and lymphopoietic tissues . 80

Another case control study of farmers in Hancock County, Ohio, showed a "statistically significant" rise in Hodgkin’s disease and non-Hodgkin’s lymphoma. Although the study speculates that exposure to phenoxy herbicides may be the cause of such elevated cancers, the study recognizes that, given the size of its cohort, the only credible conclusion that can be drawn is that it "adds to the growing body of reports linking farming and malignant lymphoma, particularly NHL." 81

A study of disease and non—battle injuries among U.S. Marines in Vietnam from 1965 to 1972 showed a significantly higher rate of first hospitalizations for Marines stationed in Vietnam as opposed to Marines stationed elsewhere, particularly

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79 Kang, et. al., "Soft-Tissue Sarcoma and Military Service in Vietnam: A Case Control Study," 79 Journal of the National Cancer Institute 693 (October, 1987). The increases were not statistically significant as reported. Nonetheless, the results are remarkable.

80 E · Schwartz, "A Proportional Mortality Ratio of Pulp and Paper Mill Workers in New Hampshire," 45 British Journal of Industrial Medicine, 234—238 (1988).

81 Dubrow, Paulson & Indian, "Farming and Malignant Lymphoma in Hancock county, Ohio," 45 British Journal of Industrial Medicine 25—28 (1988).

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For neoplasms, diseases of the blood and blood forming organs and diseases of the circulatory and respiratory systems.82 Of particular significance is the fact that the rate of first hospitalization for disease and non—battle injuries among Vietnam personnel rose steadily, reaching a peak in 1969, while the rate of non—Vietnam personnel remained relatively constant.83 This rise in hospitalization for non—combat injuries coincides exactly with the increased use of Agent Orange, reaching a peak in 1969, and declining thereafter until its elimination in 1971.

In a recently published article entitled "2,4--D, 2,4,5 --T, and 2,3,7,8 --TCDD: An Overview", the authors acknowledge that at least three weaknesses in research related to dioxins are sufficient to cast doubt on the validity of any study. 84 The

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82 Palinkas & Coben, "Disease and Non—Battle Injuries Among U.S. Marines in Vietnam, 153 Military Medicine 150 (March, 1988).

83 Id. at 151. It should be noted that the year of greatest combat activity, as measured by the number of personnel wounded in action, 1968, had the smallest disease and non-battle injury vs. wounded in action ratio. Id. at 152.

84 Lilienfeld and Gallo "2,4-D, 2,4,5—T and 2,3,7,8-TCDD An Overview," Epidemiologic Review, Vol. II (1989). Three major criteria must be considered in evaluating the numerous epidemiologic studies of phenoxy herbicides and 2,3,7,8-TCDD: 1) the accuracy of exposure assessment; 2) the studies’ statistical power; and 3) the adequacy of follow-up. Problems in any one of the three areas leaves the study open to criticism and subject to manipulation.

For instance, in retrospective studies, various proxies of exposure to herbicides and 2,3,7,8,—TCDD have been used such as military service in Vietnam or residence in an area in which the herbicides were sprayed. The weakness in such an approach is that unless the proxy corresponds to exposure, the "exposed group" is diluted with the individuals who have NOT been exposed, thereby reducing the magnitude of the strength of the association. In fact, such reduction may be of such a degree as to preclude detection of any

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authors report that while the data on soft tissue sarcoma and phenoxy acids are too inconsistent to allow for any comment at this time, there is evidence of a strong association between STS and the suspect chemicals in 2 of the 8 studies analyzed in their article. Furthermore, the birth defect studies analyzed "suggest that adverse reproductive effects can be caused by (dioxin) . 85

Recent studies in Vietnam continue to show statistically significant reproductive anomalies and birth defects among women, and children of women presumably exposed to Agent Orange spraying.86

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of a serum marker for 2,3,7,8-TCDD by Kahn may provide the means of identifying persons who have been exposed.

Furthermore, studies concerning Agent Orange have nearly all been conducted in the past decade. This 10 year latency period is generally thought to be insufficient for many cancers to be clinically detected .

85 Id.

86 See note 10 supra. It should be noted that as early as 1977 information about Agent Orange’s potential for genetic damage was known to the VA. For example, a "NOT FOR RELEASE" VA document expressly noted Agent Orange’s "high toxicity" and "its effect on newborn, deformed children —— similar to the thalidomide situation." See L. Casten, Patterns of Secrecy note 73 supra at Department of Veteran Affairs p.4. Similarly, in March of 1980, Senator Tom Daschle and Rep. David Bonior received an anonymous memorandum written on VA stationery which stated:

chemical agents 2,4,5-T and 2,4-D commonly known as Agent Orange and Agent Blue, are mutagenic and teratogenic. This means they intercept the genetic DNA message processed to an unborn fetus, thereby resulting in deformed children being born. Therefore, the veteran would appear to have no ill effects from the exposure but he would produce deformed children due to this breakage in his genetic chain.... . .Agent Orange is 150,000 times more toxic than organic arsenic.

Id. See also Wolfe & Lathrop, "A Medical Surveillance Program for Scientists Exposed to Dioxins and Furans," Human and Environmental Risks of Chlorinated Dioxins and Related Compounds, 707—716 (1983)

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In the December 1, 1989, issue of Cancer, a study of the cancer risks among Missouri farmers found elevated levels of lip and bone cancer as well as nasal cavity and sinuses, prostrate, non-Hodgkin’s lymphoma and multiple myeloma. Smaller elevations, but elevations nonetheless, were found for cancers of the rectum, liver, malignant melanoma, kidney and leukemia. According to the authors, evidence of the cause for the elevated risks for these illnesses "may be strongest for a role of agricultural chemicals, including herbicides, insecticides and fertilizers." 87

Both the U.S. Environmental Protection Agency (EPA) and the International Agency for Research on Cancer (IARC) have concluded that dioxin is a "probable human carcinogen." 88

In a work entitled "Carcinogenic Effects of Pesticides" to be issued by the National Cancer Institute Division of Cancer Etiology, researchers conclude that while confirmatory data is lacking there is ample evidence to suggest that NHL, STS, colon, nasal and nasopharyngeal cancer can result from exposure to phenoxy herbicides .

A just released case control study of the health risks of exposure to dioxins confirmed previous findings that exposure to

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(Proceedings of International Symposium on Chlorinated Dioxins and Related Compounds, Arlington, VA, October 25—29, (1981)). The article explains the possible mechanism for paternally transmitted birth defects.

87 Brownson, et. al. "Cancer Risks Among Missouri Farmers," 64 Cancer 2381, 2383 (December 1, 1989) .

88 Agency for Toxic Substances and Disease Registry, pp. 7,, 61—68, 94 reprinted in Rachel’s Hazardous Waste News # 173 (March 21, 1990)

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phenoxyacetic acids or chlorophenols entails a statistically significant increased risk (i.e. 1.80) for soft tissue sarcoma.89

As recently as February 28, 1990 an additional study found that farmers exposed to various herbicides containing 2,4—D may experience elevated risks for certain cancers, particularly cancers of the stomach, connective tissue, skin, brain, prostate, and lymphatic and hematopoietic systems."90

This week a scientific task force, after reviewing the scientific literature related to the potential human health effects associated with exposure to phenoxyacetic acid herbicides and/or their associated contaminants (chlorinated dioxins) concluded that it is at least as likely as not that exposure to Agent Orange is linked to the following diseases: non—Hodgkin’s lymphoma, soft tissue sarcoma, skin disorders/chloracne, subclinical hepatotoxic effects (including secondary coproporphyrinuria and chronic hepatic porphyria), porphyria cutanea tarda, reproductive and developmental effects, neurologic

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89 Eriksson, Hardell & Adami, "Exposure to Dioxins as a Risk Factor for Soft Tissue Sarcoma: A Population--Based Case--Control study," 82 Journal of the National Cancer Institute 486—490 (March 21 1990) . It should be noted that in this study the median latency for phenoxyacetic acid and chlorophenols exposure was 29 and 31 years respectively, thereby suggesting that many of the veterans who are at risk have not yet manifested symptoms of STS.

90 Blair, "Herbicides and Non-Hodgkin’s Lymphoma: New Evidence From a Study of Saskatchewan Farmers," 82 Journal of the National cancer

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effects and Hodgkin’s disease.91

On the same day that this scientific task force reported a statistically significant linkage between exposure to the dioxins in Agent Orange and various cancers and other illnesses, the Environmental Protection Agency reported that the cancer risk posed by the release of such a "potent carcinogen" as dioxin in the production of white paper products is "high enough to require tighter controls on paper mills."92

CONCLUSIONS

As many of the studies associated with Agent Orange and dioxins attest, science is only at the threshold of understanding the full dimension of harmful toxic effects from environmental agents on various components of the human immune system. 93 In

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91 Report of the Agent Orange Scientific Task Force of the American Legion, Vietnam Veterans of America, and the National Veterans Legal Services Project, reported by McAllister, "Viet Defoliant Linked to More Diseases, Washington Post, May 1, 1990 at AS, col. 4. The report also found that there are other disorders for which there is evidence suggesting an association with exposure to Agent Orange, but for which statistically significant evidence is not currently available. Those diseases include: leukemia's, cancers of the kidney, testis, pancreas, stomach, prostate, colon hepatobiliary tract, and brain, psychosocial effects, immunological abnormalities, and gastrointestinal disorders.

92 Weisskopf, "EPA Seeking to Reduce Dioxin in White Paper: Cancer Risk Said to Justify Mill Restrictions," Washington Post, May 1, 1990 at AS, col. 1.

93 A recent report in the Washington Post suggests that there is an inherent uncertainty in trying to measure the dangers posed by the chemicals humans eat, drink and breathe. Since human experimentation is impossible to assess the effect of varied doses of a chemical on human health, scientists are ultimately required

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fact, a whole new discipline — immunotoxicology — has developed to explore further the effects of environmental chemicals on human health and to relate animal test results to humans.94

Immunotoxicology has established, however, at a minimum that at least three classes of undesirable effects are likely occur when the immune system is disturbed by environmental exposure to chemicals such as dioxin, including: 1) immunodeficiency or suppression; 2) alteration of the host defense mechanism against mutagens and carcinogens (one theory is that the immune system detects cells altered by mutagens or other carcinogenic trigger and destroys these cells. Thus, an impaired immune system may not detect and destroy a newly forming cancer); and 3) hypersensitivity or allergy to the chemical antagonist. Because of dioxin’s ability to be both an immunosuppressant and a carcinogen, as early as 1978 immunologists were suggesting that "(a) gents such as TCDD.. .may be far more dangerous than those possessing only one of these properties."95

While scientists are not in agreement, some immunotoxicologists argue that one molecule of a carcinogenic agent, like dioxin in the right place and at the right time can

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to speculate or guess as to the health effects of a given chemical to the human body. See Measuring Chemicals’ Dangers: Too Much Guesswork?" Washington Post, March 23, 1990.

94 Silbergeld & Gaisewicz, "Dioxins and the Ah Receptor," 16 American Journal of Industrial Medicine 455, 468—69 (1989).

95 Inadvertent Modification of the Immune Response — The Effect of Foods, Drugs, and Environmental Contaminants; Proceedings at the Fourth FDA symposium; U.S. Naval Academy (August 28-30, 1978), p. 78.

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cause the human immune system to turn on itself, manifesting such breakdowns in the form of cancer. Indeed, even some courts have accepted this theory of causation in matters specifically related to exposure to dioxin.96

With additional evidence from Vietnam suggesting that Agent Orange contaminants have the ability to migrate away from actual spray locations via river channels and the food chain, the opportunity for a Vietnam Veteran to have been exposed to dioxin contaminant molecules increases significantly.97

It cannot be seriously disputed that any large population exposed to chemical agents, such as Vietnam Veterans exposed to Agent Orange, is likely to find among its members a number who will develop malignancies and other mutagenic effects as a result of being exposed to harmful agents.

To be sure, decisions today with regard to the seriousness of Agent Orange health effects must be made while the science of

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96 See Peteet V. Dow Chemical Co. , 868 F.2d 1428, 1433 (5th Cir. 1989) cert denied 110 S.Ct. 328 (1989).

97 See e.g. Schecter, et. al., "Levels of 2,3,7,8—TCDD in Silt Samples Collected Between 1985—86 From Rivers in the North and South of Vietnam," 19 Chemosphere 547—550 (1989) (suggestive findings that the predominant dioxin isomer in Agent Orange has moved into downstream rivers in the South of Vietnam); Olie, et. al., "Chlorinated Dioxin and Dibenzofuran Levels in Food and Wildlife Samples in the North and South of Vietnam," 19 Chemosphere 493-496 (1989) (food and wildlife specimens in South Vietnam had a higher relative abundance of 2,3,7,8-TCDD suggesting contamination from Agent Orange); Schecter, et · al. "Chlorinated Dioxin and Dibenzofuran Levels in Food Samples Collected Between 1985—87 in the North and South of Vietnam," 18 Chemosphere 627—634 (1989) (Agent Orange contaminants, specifically 2,3,7,8-TCDD found at relatively elevated levels in food and wildlife samples 15-2 5. years after environmental contamination with compound in South of Vietnam

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immunotoxicology is in its infancy. After having evaluated and considered all of the known evidence on Agent Orange and dioxin contaminants, it is evident to me that enough is known about the current trends in the study of dioxins, and their linkage with certain cancers upon exposure, to give the exposed Vietnam Veteran the benefit of the doubt.

This benefit of the doubt takes on added credence given two separate means for determining exposure to Agent Orange — 1) HERBs and Service HERBs tapes establishing troop location for comparison with recorded Ranch Hand spraying missions; and 2) blood testing from living Veterans,to ascertain elevated dioxin levels. The inexplicable unwillingness of the CDC to utilize this data has had the effect of masking the real increase in the rate of cancers among the truly exposed. There is, in my opinion, no doubt that had either of these methods been used, statistically significant increased rates of cancer would have been detected among the Veterans for whom exposure can still be verified.

Since science is now able to conclude with as great a likelihood as not that dioxins are carcinogenic directly and indirectly through immunosuppression, and since a large proportion of those exposed to dioxin can be so ascertained, I am of the view that the compensation issue for service—related illnesses associated with exposure to Agent Orange should be resolved in favor of Vietnam Veterans in one of the two following ways:

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COMPENSATION FOR SERVICE RELATED ILLNESSES

Alternative 1:

Any Vietnam Veteran, or Vietnam Veteran’s child who has a birth defect, should be presumed to have a service—connected health effect if that person suffers from the type of health effects consistent with dioxin exposure and the Veteran’ s health or service record establishes 1) abnormally high TCDD in blood tests; or 2) the veteran’s presence within 20 kilometers and 30 days of a known sprayed area (as shown by HERBs tapes and corresponding company records); or 3) the Veteran’ s presence at fire b se perimeters or brown water operations where there is reason believe Agent Orange have- occurred.

Under this alternative compensation would not be provided for those veterans whose exposure came from TCDD by way of the food chain; silt runoff from sprayed areas into unsprayed waterways; some unrecorded U.S. or allied Agent Orange sprayings; inaccurately recorded sprayings; or sprayings whose wind drift was greater than 20 kilometers. Predictably, problems generated by the foregoing oversights, the mass of data to be analyzed as claims were filed, and the known loss of many service records would invalidate many veterans’ legitimate claims

Alternative 2:

Any Vietnam Veteran or child of a Vietnam Veteran who experiences a TCDD—like health effect shall be presumed to have a service—connected disability. This alternative is admittedly

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broader than the first, and would provide benefits for some veterans who were not exposed to Agent Orange and whose disabilities are not presumably truly service connected. Nevertheless, it is the only alternative that will not unfairly preclude receipt of benefits by a TCDD exposed Vietnam Veteran.

Furthermore, this alternative is consistent with the Secretary’s decision regarding the Service—connection of non— Hodgkin’s lymphoma, as well as legal precedent with respect to other diseases presumed by the Department of Veterans Affairs to be connected to one or more factors related to military service (i.e. veterans exposed to atomic radiation and POW’s with spastic colon).