Placido Salazar psalazar9@satx.rr.

com Two Marine Veterans Win VA Appeals for Exposure to AO in Subic Bay, Philippines

Two Marine Veterans Unite Decades Later to Win VA Appeals for Exposure to Agent Orange in Subic Bay, Philippines
How Veterans Use Buddy Statements and Other Evidence to Reopen Cases
3 3 56 459

July 09, 2013 13:32 | Source:The Law Offices of Hill & Ponton, P.A.
Daytona Beach, FL, July 9, 2013 (GLOBE NEWSWIRE) -- Marines are known for getting the job done. What seems impossible to the rest of us is not so to a Marine--whose hallmark bravery, strength, and determination carry him on the battlefield to accomplish any mission. And when service to our country comes to an end, those traits which embody the Marine are not left behind. That grit in the face of all odds prepares the veteran for a different battle at home. For many disabled veterans whose claims for service-connected disabilities are denied by the Department of Veterans Affairs (VA), the road to victory before the Board of Veterans' Appeals (BVA) is an uphill battle. This is the story of two Marine veterans, their exposure to Agent Orange, and the fight to obtain benefits which our government promised them long ago. Agent Orange is the name given to a blend of highly toxic herbicides the U.S. military sprayed from 1962 to 1971 in Vietnam to remove foliage that provided enemy cover. Its name is derived from the orange identifying stripe used on the 55-gallon drums in which it was stored. The U.S. government has maintained that the only place where Agent Orange was ever stored was in Vietnam and in the factory of origin, which was located in Gulfport, Mississippi.

Ariel Cintron served in the U.S. Marine Corps from 1970 to 1973. While stateside, he was stationed in Camp Lejuene, living in Haddick Point. He was also stationed in Subic Bay, Philippines, and served with the Separate Guard Company of the Marine Barracks. As a security guard, he patrolled the Cubic Point Naval Magazine and piers. It was at Camayan Pier, one of the main piers in Subic Bay, that Cintron was directly exposed to Agent Orange. The veteran recalls merchant ships delivering 55-gallon barrels, some with orange stripes, which were stacked on the pier. Many of these barrels were leaking due to corrosion, and the liquid would get on his shoes as he moved between barrels to check for hidden enemy. He remembers the smell of the liquid--an unmistakable odor of herbicides. As with all of our nation's veterans, the price of war is high. Even for those lucky enough to come home, the physical and emotional toll is heavy. As a result of his direct exposure to Agent Orange, Cintron developed Type II Diabetes Mellitus and many secondary disabilities resulting from that service-connected disease. However, the VA's Regional Office denied his claim in December 2002, and thus began his long journey of appeal, just as so many veterans before him. Rene Hernandez, also an ex-Marine, performed active military duty from December 1968 to October 1971. In fact, he was a contemporary of Cintron's in the same unit in Subic Bay, and performed the same job function-security guard. After completing his service, Hernandez too claimed direct exposure to the Agent Orange stored there in 55-gallon barrels. He also developed Type II Diabetes Mellitus and a host of secondary disabilities, as well. His claim for compensation was also denied in December 2002 by the VA's Regional Office, and the arduous task of appeal before the BVA was begun. Neither of these Marines could have foreseen that their paths would cross again stateside. Neither man at their time of service was aware that the liquid stored in those barrels was Agent Orange. Complicating matters, while the VA has admitted that Agent Orange can cause devastating diseases, including the diabetes suffered by these two ex-Marines, the agency has mandated that veterans must either have served in Vietnam or have had direct exposure to Agent Orange to claim benefits--a difficult thing to prove. Given that neither Cintron nor Hernandez had ever served in Vietnam, their cases rested upon the direct exposure connection. Somehow, contrary to the government's assertion, Agent Orange did end up in storage barrels in Subic Bay, Philippines. But how did it get there, who knew about it, and what could be done to prove it to the government? The veterans had their work cut out for them. Without new and material evidence that placed the storage of Agent Orange in Subic Bay during their service, the two cases were closed for good. The burden of proving exposure to Agent Orange lies with the victim. Though lay testimony is gaining acceptance before the VA--particularly in cases of combat veterans or victims of military sexual trauma--a victim's statement alone is generally not enough to prove the occurrence of an incident in service. Attorneys

who advocate for veterans often rely upon the detective work of their clients to investigate their past service and uncover new and material evidence that can be used to reopen their cases. That's where the power of the buddy network comes into play. The cases of Cintron and Hernandez shared three important circumstances of service--time, duty, and location. To find in favor of one veteran in terms of direct exposure would be to find in favor of the other, given that the two veterans were similarly situated individuals. Both veterans conceded to the Board that, at the time of their service, they did not know the contents of the barrels with an orange stripe contained Agent Orange. It was only later that each read an online VA fact sheet which indicated that barrels such as those they had witnessed did contain Agent Orange. And, thus, the investigation began. These two men who were there for each other as Marines had come full circle to support each other as veterans decades later. Both veterans would present new and material evidence to the Board, relying heavily upon "buddy statements" of service members from their past. These letters and affidavits would describe witnessing drums of herbicide marked with orange stripes being shipped to Subic Bay in the Philippines. Others would attest to seeing similar barrels leaking at piers in Subic Bay and cleaning spills from such barrels on ships bound to or from the Subic Bay harbor. In addition, media reports would surface in both the United States and New Zealand that contradicted our government's long-held assertion regarding the storage of Agent Orange only in Vietnam and the factory of origin. One such report actually quoted a New Zealand public official acknowledging that his government had indeed supplied the United States with Agent Orange chemicals which were shipped from New Zealand to Vietnam via the Philippines. On May 9, 2011, the VA notified Rene Hernandez of its decision "resolving all reasonable doubt in his favor." As a result, Hernandez has received benefits for treatment of his Type II Diabetes Mellitus as a presumptive inservice disability, along with the multiple complications he has suffered from the disease. In his case, these secondary conditions include neuropathy of his lower extremities, bilateral eye disorder, and kidney disorder. The decision afforded Hernandez was used by his attorney to substantiate the case of the other similarly situated marine, working around the VA's mandate that the merits of each veteran's case must stand on its own. Ariel Cintron received the VA's notification to grant his claim for service-connected disability of Type II Diabetes Mellitus on August 9, 2012. His appeal for service connection for bilateral eye disorder was denied. The issues of service connection for peripheral neuropathy, hypertension, and kidney disorder required further examination by the Board, and were eventually granted as well. According to Matthew D. Hill, who represented both veterans before the Board, Cintron finally received compensation from the VA this April, 2013. Both veterans reside in Florida. According to Attorney Hill, one of

the veterans recently reported from the hospital that he is down to four toes due to the peripheral neuropathy of his diabetes. Both men are willing and able to talk to others about their cases of appeal. A summary of evidence supplied by ex-marines Cintron and Hernandez, based upon buddy statements and new reports, to substantiate their cases before the Board of Veterans' Appeals: March 31, 2003 - Department of the Army letter in response to February 15, 2003 Freedom of Information Act request by Mr. Rene Hernandez for herbicide information, indicating that herbicides were not sprayed, stored, or tested near U.S. personnel in the Philippines. January 11, 2005 - New Zealand Herald article, "Government probes claims NZ exported Agent Orange," by Kevin Taylor, indicating that government officials were looking into a claim that Agent Orange ingredients were made in New Zealand and shipped to the U.S. military in the 1960s, specifically the military base at Subic Bay in the Philippines for the war. June 8, 2005 - Eyewitness statement from a retired U.S. Navy seaman/radioman assigned to the USS Arlington from September 1966 to April 1968, who witnessed gray barrels with an orange stripe and green barrels with yellow writing transported on the ship, both labeled chemical, with liquid inside that smelled like herbicide. Over 100 pallets with 4 to 8 barrels per pallet were off loaded at Subic Bay, Philippines in December 1967. He recalls cleaning spills from the barrels, and breathing air, eating food, and drinking water that was contaminated with Agent Orange while at port in Cam Rahn Bay, Vietnam. June 12, 2005 - Letter from a retired U.S. Navy captain and ship's chaplain, USS White Plains, from 1968 to 1970, regarding specific details of an August 1969 spill/clean up of chemicals, years later identified to him as Agent Orange. He claims the ship served as the primary supplier of the "substance" from the main supply source in Subic Bay to multiple points along the Vietnam coast in Operation Market Time. In 1992, the captain was diagnosed with Type II diabetes with little family history. In a statement in support of R. Hernandez, the major spill of non-diluted Agent Orange aboard the USS White Plains was collaborated by a member of the ship's Damage Control and Fire Fighter Team, who served on the ship from 1969 to 1970. He claims his 100 percent disability decision was due to contamination from nondiluted Agent Orange. September 1, 2005 - ABC News Online reports New Zealand admits supplying Agent Orange during the Vietnam War. The article quotes Transport Minister Harry Duynhoven as saying that "products used to make Agent Orange were shipped from New Plymouth to Subic Bay in the Philippines" during the 1960s.

July 9, 2009 - Affidavit from a retired U.S. Navy deck seaman who served on the USS Arlington from February to December, 1967, and witnessed the ship pick up 120-plus barrels on pallets in Subic Bay, Philippines, late September to early October 1967. The green barrels with yellow writing and the gray barrels with an orange stripe were stored in the hangar bay, secured, and eventually loaded off at Cam Rahn Bay, Vietnam on November 1-2, 1967. July 6, 2010 - Statement of support made by a veteran who served in the Marines from 1968 to 1975, and alongside R. Hernandez at Subic Bay, Philippines, providing security for the U.S. Naval Magazine. He verified the presence of 55-gallon barrels at both the magazine and the pier in the jungle, where all munitions and chemicals were loaded off and on the ships. He observed barrels marked with orange paint, which oftentimes leaked from the bottoms and dripped down on the pallets to the deck, where puddles formed and men routinely walked through them. Matthew Hill is on the board of National Organization of Veterans' Advocates, Inc. (NOVA) and a managing partner at Hill & Ponton, specializing in Veterans Disability Law. He oversees the NOVA committee responsible for organizing bi-annual training conferences on veterans' benefits. Hill also speaks at national seminars on veterans' benefits. He is a member of the Florida Bar Association, Orange County Bar Association and American Bar Association. For more information, please contact Hill & Ponton at 1-888-477-2363 or info@hillandponton.com

Contact: Matthew D. Hill, Attorney at Law Tel: 1-888-477-2363 Email: 444 Seabreeze Blvd., Suite 235 Daytona Beach, FL 32118

Sign up to vote on this title
UsefulNot useful