I



i

TABLE OF CONTENTS

Authorities Cited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Statement of the Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Statement of the Case . . . . . . .. . . . . . . . . . . . . . . . . . . . . . 1

Summary of Argument . . . . . . .. . . . . . . . . . . . . . . . . . . . . 3

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I THE APPELLANT WAS DENIED INFORMATION, AID AND ASSISTANCE AS REQUIRED BY 38 U.S.C. § 5103A . . . . . . .4

II THE VETERAN MUST BE PRESUMED TO HAVE CONTRACTED HIS FATAL DISEASE AS A RESULT OF AGENT ORANGE . .. . . . 7

A. THE APPELLANT SERVED IN THE REPUBLIC OF VIETNAM

B. AGENT ORANGE DIOXIN ENTERED THE SHIP’S POTABLE WATER SYSTEM AND WAS ENHANCED BY THE SHIP’S DISTILLING PLANT . . . . . . . . . . . . . . . . . . . . 9

C. COMPENSATION IS PROPER UNDER 38 U.S.C. § 1113(b) . . . . . 11

III THE APPELLANT’S CANCER WAS CONNECTED TO HIS SERVICE . . . . . . . . . . . . . . . . . . . . . 12

Conclusion and Prayer for Relief . . . . . . . . . . . . . . . . . . 15

Ii

AUTHORITIES CITED

Cases

Bucklinger v. Brown, 5 Vet.App. 435 (Vet.App.1993) . . . .. . . 14

Brooks v. West, 17 Vet. App. 335 (Table) 2000 WL 140020 . . .. . . . . . 12

C. A. B. v. Island Airlines, Inc. 235 F.Supp. 990 (D.C.Hawaii 1964) . .. . . . 7

Combee v. Brown, 34 F.3d 1039 (Fed.Cir.1994) . . . . . . . . .. . . 12

Godwin v. Derwinski, 1 Vet.App. 419 (1991) . . . . . . . . . .. . . . 4

Gordon v. Principi, 15 Vet.App. 124 (2001) . . . . . . . . .. . . 6

Jackson v. West, 12 Vet.App. 422 (Vet.App. 1999) . . . . . .. . . 6

Louisiana v. Mississippi, 202 U.S. 1 (1906) . . . . . . . . . . . .. . . . 8

Murincsak v. Derwinski, 2 Vet.App. 363 (1992) . . . . . . . . .. . . 5

United States v. Louisiana 394 U.S. 11 (1969) . . . . . . . . . .. . 7, 8

Wynn v. Gober 17 Vet.App. 460 (Vet.App. 2000) . . . . . . . . .. . 12

Statutes

28 U.S.C. § 2412 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 15

33 U.S.C. § 1251 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 10

38 U.S.C. § 1113 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i, 11, 12

38 U.S.C. § 1116 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 8, 11

38 U.S.C. § 1310 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 1

38 U.S.C. § 1318 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 1

iii

38 U.S.C. § 3500 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 1

38 U.S.C. § 5103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i, iv, 4

38 U.S.C. § 5107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 14

38 U.S.C. § 7252 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 7

42 U.S.C § 9601 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 10

Code of Federal Regulations

38 C.F.R. § 3.159 . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 5

38 C.F.R. § 3.307 . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 13

38 C.F.R. § 3.309 . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Other

. . .. . . 7

. . . . .. . . 8

. . . . . .. . 10

. . . . . . . . . . .. . . 10

Law of the Seas Convention, Article 2 . . . . . . . . . . . . . . . . . . . .. . . . 9

National Research Centre for Environmental Toxicology and the Queensland Health Services, EXAMINATION OF THE POTENTIAL EXPOSURE OF ROYAL AUSTRALIAN NAVY (RAN) PERSONNEL TO POLYCHLORINATED DIBENZODIOXINS AND POLYCHLORINATED DIBENZOFURANS VIA DRINKING WATER, Brisbane Queensland, Australia (2002) . . . .. . 3, 5, 6, 10, 11, 12, 15

Territorial Sea Convention Article 1-2 (1958) . . . . . . . . . .. . . 9

Iv

STATEMENT OF THE ISSUES

I The Appellant Was Denied Information, Aid And Assistance as Required

by 38 U.S.C. § 5103A.

II The Veteran Must Be Presumed to Have Contracted His Fatal Disease as a Result of Agent Orange.

III Whether the Appellant’s Cancer Was Connected to His Service.

1

STATEMENT OF THE CASE

Appellant (Name) is the surviving widow of (Name) who served on active duty from May 1965 through May 1969. R. 20. Mr. (Name) died on March 9, 2002. R. 186. Cause of death, as listed on the death certificate, was pneumonia, probable lung carcinoma and a history of squamous cell cancer of the neck. Id.

Mrs. (Name) requested benefits pursuant to 38 U.S.C. §§ 1310, 1318, 3500 et. seq. Specifically she requested that her husband’s death be rated as a disability incurred or aggravated by military service, and that she be found entitled to Dependent’s Educational Assistance and Dependent’s Indemnity Compensation. R. 292, 193, 461, 886.

On 21 December 1968 Mr. (Name) was assigned to the U. S.S. Orleck, (DD 886), a FRAM I 2250 class Destroyer assigned to the Pacific Fleet. R. 88. He was transferred on 8 May 1969 to Treasure Island, San Francisco for separation processing. R. 83. He was released from active duty and transferred to the Naval Reserve on 20 May 1969. R. 20. He was awarded the National Defense Service Medal and the Vietnam Service Medal. Id.

The Orleck was involved in naval gunfire support in the territorial waters of Vietnam including several harbor areas. R. 482 and 483. The Orelck spent many days and nights on the gun line just a few 2 thousand yards off shore and at least one day in port in Vung Tau, Republic of Viet Nam. Id.

The veteran was diagnosed with tongue cancer in 1986. R. 112. He had a noted history of tongue and jaw cancer. R. 368. In May 25, 2000, the VA denied the veteran’s carcinoma of the tongue because “the available scientific and medical evidence does not support the conclusion that this condition is associated with herbicide exposure, nor is there any objective evidence to show that the condition was incurred in or aggravated by military service.” R. 167.

On June 13, 2002, the VA Regional Office denied appellant’s request for a determination that the veteran’s death was service connected, that she was entitled to Dependent’s Indemnity Compensation and her eligibility for Dependent’s Educational Assistance.

In December 2002, a report by the National Research Centre for Environmental Toxicology in conjunction with the Queensland Health Scientific Services determined that sailors assigned to ships of the Royal Australian Navy were exposed to Agent Orange. National Research Centre for Environmental Toxicology and the Queensland Health Services, EXAMINATION OF THE POTENTIAL EXPOSURE OF ROYAL AUSTRALIAN NAVY (RAN) PERSONNEL TO POLYCHLORINATED DIBENZODIOXINS AND POLYCHLORINATED DIBENZOFURANS 3 VIA DRINKING WATER, Brisbane Queensland, Australia (2002) (hereinafter RAN Report). The study noted that ships in the near shore marine waters collected waters that were contaminated with the runoff from areas sprayed with Agent Orange. RAN Report at 10. The distilling plants aboard the ship, which converted the salt water into potable drinking water, according to the study, actually enhanced the effect of the Agent Orange. RAN Report at 42. The study found that there was an elevation in cancer in veterans of the Royal Australian Navy which was higher than that of the Australian Army and Royal Australian Air Force. RAN Report at 13. The report further found that oral ingestion can cause multi-site cancer in the human body. RAN Report at 58.

The Board of Veterans Appeals considered and rejected appellant’s claim in a decision dated December 29, 2004. This appeal followed.

SUMMARY OF THE ARGUMENT

The appellant was not provided the required statutory assistance by the Secretary to help her develop her case. Critical information known to the Secretary, which confirmed the presence of the ship in Vietnamese harbors and near shore waters was not provided. Nor was empirical information proving that ships in the near shore waters used contaminated sea water to produce potable water. The Secretary further failed to advise the appellant of the enhancement 4 effects of the ship’s distillers.

The facts of the case show that the veteran’s ship was within the sovereign waters of the Republic of Vietnam. Under both national and international law the veteran’s service was “in the Republic of Vietnam.” He met the statutory presumptions.

Additionally, the Board of Veterans Appeals failed to apply the benefit of the doubt standard despite the approximate balance of the evidence that the lung cancer did not metastasize.

The court should find for appellant as a matter of law or in the alternative remand to the Board of Veterans Appeals to further develop the facts.

ARGUMENT

I THE APPELLANT WAS DENIED INFORMATION, AID AND ASSISTANCE AS REQUIRED BY 38 U.S.C. § 5103A

It is well settled that the Secretary has a duty to assist a claimant in the development of their claim. 38 U.S.C. 5103A(a)(1). This includes reasonable assistance in obtaining relevant records including private records. 38 U.S.C. 5103A(b)(1). Godwin v. Derwinski, 1 Vet.App. 419, 425 (1991).

The duty to assist the veteran does not end with the rating decision but continues while the claim is pending before the BVA. The statute imposes a continuing obligation upon the VA to assist the claimant in developing the facts of his claim throughout 5 the entire administrative adjudication. Murincsak v. Derwinski, 2 Vet.App. 363, 373 (1992).

Here the Secretary faltered in his statutory duty by failing to assist appellant in the development of her claim. The Regional Office had access to the USS Orleck web site. R. 470-485. On the masthead of the website, is a hyperlink to the deck logs. R. 470. Although the appellant could not be expected to understand the significance of the deck logs, the Secretary’s representative should have recognized their importance. The deck logs show the exact location of the ship when it patrolled the gun line within Vietnamese territorial waters and when it anchored near the shore or in the Agent Orange infected harbors of Vietnam. The deck logs are irrefutable proof of the ship’s position in contaminated waters. Pursuant to 38 C.F.R. § 3.159(c)(1)(i) the veteran must provide the Department enough information to locate the records. This was done. The web site information provided by the appellant included access to the deck logs.

Additionally, the Secretary failed to make the appellant aware of the RAN report, supra. Although the report did not come into existence until after the Regional Office decision, it was available prior to the BVA hearing. When faced with a well-grounded claim, the Board is required to assist a claimant in developing the facts pertinent to the claim. Jackson v. West, 12 Vet.App. 422, 428 6 (Vet.App. 1999).

The RAN Report showed that the near shore waters of Vietnam were contaminated, that Navy ships used this contaminated water to make potable water, that the ship’s distillers enhanced the Agent Orange dioxin and that sailors drinking that contaminated water were more likely to develop cancer. Had the VA assisted the veteran by providing that report, the decision of the Board of Veterans Affairs might well have been different. Although the BVA found that the Regional Office provided assistance, they obviously did not consider this new factual evidence.

As in the instant case, when the issue was not fully developed by the Board of Veterans Appeals, a remand would certainly be appropriate. Gordon v. Principi, 15 Vet.App. 124 (2001). As in Gordon , the arguments contained herein were not fully developed or perhaps even properly raised at the Board of Veterans Appeals. The lack of proper legal representation forced by current statute is a significant factor in issues not being properly identified. It is apparent, now, however, that these additional arguments could benefit from the additional record development. Additionally, they could well produce a different result on remand.

The Secretary has refused to consent to a remand. This court has the authority to order such a remand sua sponte. 38 U.S.C. § 7252(a). In the 7 alternative, the court can and should rule that the VA Regional Office and the Board of Veterans Appeals failed to properly assist the claimant.

II THE VETERAN MUST BE PRESUMED TO HAVE CONTRACTED HIS FATAL DISEASE AS A RESULT OF AGENT ORANGE

A. THE APPELLANT SERVED IN THE REPUBLIC OF VIETNAM

The deck logs, which were available to the Secretary, show clearly that the ship was within the territorial waters of Vietnam. Territorial waters were historically defined as 1, the water area comprising both inland waters (rivers, lakes and true bays, etc.) and 2, the waters extending seaward three nautical miles from the coast line, i.e., the line of ordinary low water, (ofttime called the 'territorial sea'). Seaward of that three-mile territorial sea lie the high seas. C. A. B. v. Island Airlines, Inc. 235 F.Supp. 990, 1007 (D.C.Hawaii 1964). A wider area, the contiguous zone, reaches out to twelve miles from the coast. United States v. Louisiana 394 U.S. 11, 23 n. 26. (1969). Vietnam claims a 12 mile territorial sea. (Last visited 3 April 2006). That is consistent with the limitations of the United Nations Convention on the law of the Sea Article 3. Three nautical miles is within the outermost range of the 5" 38 gun mounts of the Orleck. Twelve nautical miles (24,000 years) is beyond the maximum range of the ship’s main battery. last visited 3 April 8 2006. Accordingly, the Orelck had to have been within the 12 mile limit, or the territorial waters, whenever she was conducting gunfire support.

The enabling statute, 38 U.S.C. § 1116(a)(1)(A) recognizes a presumption of service connection when the veteran manifests a disease, including lung cancer, when the person was “a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975.” The threshold factors are the existence of a prescribed disease and service in Vietnam.

In Louisiana v. Mississippi, 202 U.S. 1, 52 (1906), the Supreme Court held that the Mississippi Sound, and by extension the waters surrounding Vung Tu as inland waters, were under the category of "bays wholly within [the Nation's] territory not exceeding two marine leagues in width at the mouth.” Inland, or internal waters are subject to the complete sovereignty of the nation, as much as if they were a part of its land territory. United States v. Louisiana, supra. The territorial waters to include the contiguous zone are also under the control of the sovereign nation, although innocent passage may not be denied. Id. Subject to the right of innocent passage, the coastal state, in this case Vietnam, has the same sovereignty over its territorial sea as it has with respect to its land territory. See, 1958 Territorial Sea Convention Article 1-2; Law of the Seas Convention, Article 9 2.

Thus any time the Orleck was firing its guns ashore, it would have had to have been within the territorial waters of Vietnam. When at anchor at Vung Tu, it was within the inland waters of Vietnam. At all relevant times, the ship was within the sovereignty of Vietnam and therefore its crew “served in the Republic of Vietnam.” The distance to shore directly corresponds to the maximum range of the support of forces ashore. Naval units often operated close to shore. The logs of the Orleck, had they been provided, would show that appellant’s husband was often within the sovereign territory of the Republic of Vietnam. The closer a ship was to shore, the higher the possibility that they steamed through waters contaminated with Agent Orange. In the case of the Vung Tu anchorage, the Orleck and Mr. (Name) were not only within the sovereign territory of Vietnam, they were within the inland waters. Consequently, under both national and international law, (Name) served in the Republic of Vietnam.

B. AGENT ORANGE DIOXIN ENTERED THE SHIP’S POTABLE WATER SYSTEM AND WAS ENHANCED BY THE SHIP’S DISTILLING PLANT

In adopting the Comprehensive Environmental Response Compensation and Liability Act, the United States Congress acted to prevent or redress the pollution of the environment. In its definition, the Congress noted that the environment 10 included the waters of the contiguous zone. 42 U.S.C § 9601. In the Clean Water Act Congress recognized that pollutants discharged from shore will contaminate the navigable waters, waters of the contiguous zone, and the oceans. 33 U.S.C. § 1251(a)(6). Further, as delineated in the RAN report, the Agent Orange dioxide entered the harbors and territorial waters of Vietnam. Thus it can safely said that pollutants used ashore find their way into the near shore waters.

The Orleck was a member of the Sumner/Gearing class of Destroyers. Ships such as the Orleck carried four potable water tanks with two distilling plants (also known as evaporators). gyrodynehelicopters,com/the_water_king.htm last visited April 4, 2006.

While efforts were made to reduce potable water distillation in port that was not always possible - especially if the ship was anchored in the near shore waters for long periods providing naval gunfire support. The distillers were solo shell double effect submerged evaporators with a total capacity of 12,000 gallons per day. See, Main Propulsion Plant DD- 445 and 692 Classes and Converted Types, Operation Manual found at last visited April 4, 2006.

Water is injected from the sea and is passed through the distilling condenser and air ejector condenser where it acts as a coolant for the condensers. It is then sent through the vapor feed heater into the first effect chamber and into the second 11 effect chamber where it is changed to water vapor. Vapor then is passed through a drain regulator into a flash chamber and passes through baffles and separators into the distilling condenser where it is condensed into water and pumped to the ship’s water distribution system. Sea water not vaporized is pumped over the side by the brine pump. Id. This is the same type of process discussed in the RAN report. In fact many Royal Australian Navy ships were former Sumner/Gearing class ships obtained from the United States Navy.

The Australian study confirmed the enhancing effects of the shipboard distilling plants. RAN Report at 42. In other words, the effect was even more pronounced than if the veteran had merely ingested Agent Orange by breathing it or by drinking water from a contaminated stream. Consequently, it cannot be argued that Mr. (Name) was not exposed to Agent Orange.

C. COMPENSATION IS PROPER UNDER 38 U.S.C. § 1113(b).

Notably, service connection should also be granted pursuant to 38 U.S.C. § 1113(b). This provision provides that: Nothing in section 1112, 1116, 1117, or 1118 of this title, subsection (a) of this section, or section 5 of Public Law 98-542 (38 U.S.C. 1154 note) shall be construed to prevent the granting of service-connection for any disease or disorder otherwise shown by sound judgment to have been incurred in or aggravated by active military, naval, or air service.

It is well settled that under 38 U.S.C. § 1113(b), even if a particular disease 12 is not listed as presumptively service connected, a veteran is not precluded from establishing service connection with proof of actual direct causation. Wynn v. Gober 17 Vet.App. 460 (Vet.App. 2000). Such evidence is established by satisfactory proof of direct service connection. See Combee v. Brown, 34 F.3d 1039 (Fed.Cir.1994).

This court can and should find that as a matter of law, the RAN report is sufficient to establish that connection. Certainly the onset of tongue and jaw cancer in the veteran makes sense when the enhanced Agent Orange was ingested orally by the veteran through his drinking water. Thus even if the lung cancer was metastic from the earlier cancer as found by the BVA (R. 12) the original cancer could have come from the Agent Orange.

This court, in an unpublished decision, noted that agent orange could possibly cause throat cancer and ordered a remand. Brooks v. West, 17 Vet. App. 335 (Table) 2000 WL 140020. Like the case in Brooks, given the additional technical and scientific information available, this case should be remanded to ascertain whether sufficient facts exist to demonstrate that the tongue and throat cancer came from Agent Orange ingested through drinking water.

III THE APPELLANT’S CANCER WAS CONNECTED TO HIS SERVICE

The Board of Veterans Appeals erroneously found that the veteran had pulmonary metastasis. R. 11. This finding was based on a review of the records 13 which revealed that the lung cancer was a “possible secondary cancer.” R. 12. There was also treatment records which showed that the lung cancer could be metastic. Id. VA treatment records also show “likely lung cancer.” R. 204. The BVA then found that the service connection for lung cancer is not warranted under the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309. R.12. The BVA claimed that there was only one competent medical opinion and that it showed that the lung cancer metastasized. This opinion, while not well referenced in the BVA opinion, appears to be buried in the record at page 875.

In January of 2004, a VA doctor reviewed “available records.” R. 875. Presumably the doctor was not aware of the effects of shipboard distillers on Agent Orange or even that the veteran steamed and was anchored in the contaminated near shore waters of Vietnam. The doctor took no tissue samples and performed no autopsy. His conclusion was that it was “at least as likely as not that the cancer was metastic.” R. 875. This opinion does not support the BVA’s assumption that the cancer had metastasized.

The BVA rejected the application of the benefit of the doubt rule since, they claimed, the preponderance of the evidence was against the appellant’s claim. This action was erroneous as a matter of law. The BVA should have applied the benefit of the doubt standard under 38 U.S.C. § 5107(b), which provides as follows: 14

The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.

Under "benefit-of-the-doubt" rule, when Board of Veterans' Appeals (BVA) has made its determinations as to credibility and probative value of all pertinent evidence of record and there is approximate balance of positive and negative evidence, veteran prevails. Bucklinger v. Brown, 5 Vet.App. 435 (Vet.App.1993).

The findings of the doctor relied upon by the BVA indicates that “it was at least as likely as not” that the cancer was metastic. The converse is also true. It was as least as likely as not that the cancer was not metastic. Based on the doctor’s evaluation, there was an approximate balance of evidence. Consequently, the BVA should have applied the benefit of the doubt standard and found for the claimant.

The additional information which should have been considered by the BVA tips the balance in favor of the appellant. It is now known that the deck logs show that the Orelck was within the near shore waters of Vietnam. The BVA already knew that the Orleck anchored at Vang Tu. The BVA knew or should have known that contaminated water was processed by the ship’s distillers, and based on the RAN Report, it is now known that the distillers enhance the effect of the Agent Orange dioxin. The fact that the enhanced dioxin was ingested orally certainly 15 supports the onset of mouth and tongue cancer. If the cancer was caused by the dioxin, whether or not the cancer metastasized to the lung is irrelevant.

Conclusion and Prayer for Relief

For the reasons stated herein, appellant prays that the court reverse the findings of the Board of Veterans Appeals and rule as a matter of law that the Secretary should find that the veteran’s death be rated as a disability incurred or aggravated by military service, and that appellant be found entitled to Dependent’s Educational Assistance and Dependent’s Indemnity Compensation. In the alternative, appellant prays that the case be remanded to the Board for veterans Appeals to consider their findings in light of the factual evidence delineated by the RAN Report and the ship’s deck logs. Additionally, Appellant prays that this honorable court award attorneys fees in a reasonable amount pursuant to the equal Access to Justice Act, 28 U.S.C. § 2412.

Respectfully Submitted,

____________________

John B. Wells

Attorney for the Appellant

LA Bar #23970

16 317 Portsmouth Drive

Slidell, LA 70460-8429

985-641-1855

985-649-1536 (fax)

CERTIFICATE OF SERVICE

I hereby certify under penalty of perjury under the laws of the United States of America that a copy of the foregoing motion was sent by courier postage prepaid to:

Bobbiretta E. Jordan

Office of General Counsel

U. S. Department of Veterans Affairs

810 Vermont Avenue, N. W. (027B)

Washington, D. C. 20420

on this the ____ day of April, 2006.

_____________________

JOHN B. WELLS

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download