By Jonathan Tilden
Over the past few decades, a great deal of attention has been given to the seemingly ever-rising number of cases of birth defects being reported in the children and grand-children of Vietnam veterans who were exposed to Agent Orange. The federal government and the Department of Veterans Affairs have taken objectionable stances on issues relating to those afflicted by vehemently denying any connections between certain illnesses and exposure to Agent Orange. They do this by showing a reluctancy to assume responsibility and provide care to those who have legitimate claims of their illnesses being scientifically linked to the deadly chemical compound. Could the consequences of being exposed to burn pits in the modern age create similar hurdles for those afflicted and their future generations?
Current Complications
Due to the increase of birth defects being reported in the children and grandchildren of Vietnam veterans over the last few decades, The Victims of Agent Orange Relief Act of 2019 (“H.R. 326”) was introduced in January of that year. The bill has currently been referred to the Subcommittee on Health. This proposed bill will not only greatly expand the protections and compensation afforded to American Vietnam veterans and their children, but also the exposed Vietnamese, Vietnamese-Americans, and the children of these individuals who have not been afforded any type of compensation under previous legislation. These changes are due to the results of studies focused on the epigenetic impact of Agent Orange on Vietnam veterans and the transmission of such conditions to future generations.
H.R. 326 has cited to the Institute of Medicine and recent scientific studies as having indicated likely epigenetic links between exposure to toxins, particularly Agent Orange, and the occurrence of developmental disorders and birth defects in successive generations. A study performed by the International Journal of Epidemiology determined that their findings supported a conclusion that “exposure to Agent Orange is associated with a statistically significant increase in risk of birth defects.” This finding is supportive of the conclusions stated in H.R. 326, all of which should serve as a basis to provide the treatment and compensation that is deserved to all of those who have been genetically impacted by the use of Agent Orange, regardless of generation. Individuals forced to seek treatment would surely suffer a great deal monetarily without the illnesses being recognized by the Department of Veterans Affairs.
A Brief History
From January 1962 to February of 1971 Agent Orange was a herbicide used in the Vietnam War to clear trees and shrubbery from selected areas. This chemical that accounted for sixty percent, or 11.4 million gallons, of the herbicides used during this period of time was ultimately deployed, at concentrations twenty to fifty-five times the normal agricultural use, over 5 million acres of land which made up approximately twenty-four percent of southern Vietnam. Agent Orange is made up of two active ingredients, one of which contained what is known scientifically as 2,3,7,8-tetrachloro-dibenzo-para-dioxin (“TCDD”). TCDD is the deadliest compound in the dioxin family and has been classified as a human carcinogen by the Environmental Protection Agency. A carcinogen is a substance that causes changes to the DNA of a cell. The United States Department of Veterans Affairs has recognized that exposure to Agent Orange causes several different types of cancer as well as other illnesses such as heart diseases and Parkinson’s disease.
The effects of exposure to Agent Orange have not only been seen in veterans but also in their children and grandchildren. Currently there is a list of recognized birth defects that entitles afflicted individuals to receive medical and other benefits for these conditions. Women who served in Vietnam have a lengthy list of recognized birth defects in their children. This list of nineteen birth defects includes conditions like cleft lip and cleft palate, congenital heart disease, abnormalities of the skull and facial bones, fused digits, and genetic neurodevelopmental disorders. For men who served in Vietnam, Spina Bifida was and is the only recognized birth defect in their children that qualified. Spina Bifida occurs when the backbone that protects the spinal cord does not form properly and causes damage to the spinal cord and related nerves.
After the Vietnam War ended the Department of Defense acknowledged the exposure of grounds troops to Agent Orange after originally holding the position the only individuals exposed were the crews of the aircrafts that sprayed the chemical. The Department of Veterans Affairs alleged that because of the scientific uncertainty of the link between Agent Orange exposure and certain illnesses they could not compensate veterans who claimed their illnesses were caused by their exposure. In order to attempt to bring aid to these veterans, Congress and the Centers for Disease Control (“CDC”) attempted to force the hand of the Department of Veterans Affairs through legislation and scientific studies respectively. What continued from this point to the present time was decades of struggles, legislation, and scientific advancements regarding Agent Orange and those affected who were battling for treatment.
The passing of the Agent Orange Act of 1991, in part, allowed men and women affected to obtain medical compensation for their ailments. Though there was only a limited amount of conditions the Department of Veterans Affairs recognized as being able to receive such compensation due to their opinion that it was only these illnesses that were directly connected to Agent Orange exposure. This Act also provided medical compensation for children whose conditions were thought to be genetically linked to exposure to Agent Orange by the Department of Veterans Affairs.
Looking Forward
The enactment of H.R. 326 would not only provide for medical coverage and relief, but also other assistance to those affected in the form of care provision, housing and poverty reduction. Great emphasis is also being placed by the bill on the areas still rife with Agent Orange contamination to be promptly and properly cleaned. It is imperative that H.R. 326 be put in effect immediately to provide some semblance of justice and retribution to those who have incurred the physical and monetary burden of exposure to Agent Orange for decades. A message must be sent to those who create such dangerous chemicals and to the United States government who condoned the use of such harmful materials. They must both assume responsibility for their wrongdoings and pay for the consequences of their actions in the form of medical and monetary assistance to those who were exposed.
Drawing a parallel to Agent Orange exposure, a current concern for veterans of the last two decades is their exposure to burn pits. Burn pits are, essentially, holes dug in the ground where military members dispose of munitions (including unexploded ordinance), petroleum products, chemicals, rubber, paint, and medical and human waste by burning them. Burn pits have been used in several countries where the military members are, and have been, present over the last few decades. Currently there are nine active burn pits: one in Afghanistan, one in Egypt, and seven in Syria.
Though they concede the toxins in the smoke from burn pits can affect the heart, lungs, organs, eyes, ears, and skin of those exposed, the Department of Veterans Affairs has alleged research does not show evidence of exposure to burn pits being linked to long-term health problems. The organization even alleges the dust and sand in the areas that burn pits have been, and are being used in, poses a greater risk than that of burn pits. Recent studies have concluded otherwise. These studies have found a higher dose-response association, which measures the relation between exposures to changes in health and bodily functions (a higher dose means a more severe response), for conditions of the lung such as chronic bronchitis and obstructions in the lungs in military personnel who were frequently deployed within 2 miles of certain burn pits. A study done focusing specifically on the connection between respiratory health and those deployed to Kabul, Afghanistan showed a statistical elevation in the rate of asthma in these individuals compared to military individuals stationed in the United States. As we wait for these illnesses to develop, further testing must be done in the future. Though the longer we wait, the potential for the illnesses to become more severe increases.
Birth defects is a current area of concern for those exposed to burn pits, much like with Agent Orange. A major issue is that there has not been enough research in this area in relation to burn pit-related illnesses and their genetic transferability. The unfortunate reality is that these individuals may have to wait and see how these illnesses affect them and their children, all the while potentially becoming more seriously ill and unwillingly and unknowingly passing their illnesses to their future children. Because there have been several decades of fighting for the expansion of coverage and recognition of specific birth defects in relation to those affected by Agent Orange, it is unlikely that any significant progress will be made quickly and willingly to research the extent of burn pit-related illnesses and their potential to be passed to children of those exposed.
The Department of Veterans Affairs has callously rejected most of the claims for relief in the form of disability compensation in connection to burn pits. This is likely due to their denial of the connection between the burn pits and certain illnesses and their reluctance to bear the expense as shown in the Agent Orange situation. They have also consciously made the decision to bar family members of affected individuals to participate in the documentation and related studies of their afflictions linked to the service-member’s exposure. This decision is in line with their historical stance on the provision of care to those exposed to harmful substances.
The Veterans Burn Pits Exposure Act is a recently proposed bill that hopes to change that by requiring the department to concede specific information to make it easier for effected veterans to be provided with relief. These two incidents show that it is crucial for the government and its related entities to act immediately to situations that carry a risk of exposure to harmful chemicals or substances to the individuals that may be affected. Failing to do so has been shown to cause a significant amount of damage to a group that is largely discarded by those that have the duty to care for them. This duty arises by knowingly and intentionally placing them in the active combat situations where such harmful chemicals were and are being used; causing a generation, if not multiple generations, of individuals to suffer as a consequence.
Jonathan Tilden is currently a second-year law student at Suffolk University Law School and a staff member of the Journal of Health and Biomedical Law. He is interested in pursuing a future in personal injury and medical malpractice law. Jonathan is currently working on a note discussing the public health implications of criminalized sex work.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.
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