Vietnam combat veterans sue the VA

VA policy constitutes “cruel and unusual” punishment of our combat veterans

In the summer of 1981, during the Agent Orange litigation evidence of the horrendous treatment of Vietnam combat veterans was uncovered at the Los Angeles VA hospital. When the matter was brought to the attention of the Veterans Administration, their bureaucrats shrugged it off and said, “The Vietnam combat veterans will just have to wait their turn; we still have veterans of World War II and the Korean War to take care of!” Protest of any mistreatment by the VA was futile because the VA Administrator the sole and ultimate arbiter of the complaints and was accountable to no one.

Vietnam Veterans sue Veterans Administration

In August 1981, Victor Yannacone was forced to sue the Veterans Administration on behalf of the Vietnam combat veterans because of mistreatment, maltreatment, and non-treatment by the VA medical system and the generally appalling conditions of the VA hospitals. By the time this action was filed against the VA over the two years since the Agent Orange litigation had been filed, Congress had held twenty-eight days of hearings on Agent Orange. This lawsuit eventually led to legislation directly addressing VA medical care of veterans exposed to the dioxin contaminated herbicide.

But instead of improving treatment for the Vietnam combat veterans, the Veterans Administration cast down its gauntlet before the Court with the brazen assertion that even if the veterans had stated bona fide statutory and constitutional claims, the federal Court could not grant them any relief because the VA Administrator and the Veterans Administration itself are not liable to the people—through their federal Courts—for violations of this nation’s Constitution and its laws. At the time, the contempt of the VA response raised echoes of other claims of privilege and immunity raised unsuccessfully during the Watergate proceedings.
All the Agent Orange victims were seeking was a day in Court to present their evidence and face the bureaucrats who smiled at them from slick public relations handouts or from TV programs prepared at public expense to further the myth that all is well at the VA, especially the health of the veterans of combat in Southeast Asia.

The action established that VA bureaucrats substituted their own ad hoc rule summarily denying the “Agent Orange” claims of Vietnam combat veterans in spite of the statutory mandate of Congress that medical care and treatment be available to all combat veterans. Yannacone argued that even regulations promulgated ex cathedra by the VA Administrator may not exceed statutory authority; they may not be arbitrary or capricious; they may not represent an abuse of administrative discretion; and they must be in accordance with the law. The VA regulations denying claims of service connected disability and death from exposure to Agent Orange in Southeast Asia met none of these criteria.

What were the Vietnam combat veterans suing about?

The constitutional rights of all the Vietnam combat veterans were being callously disregarded by the Veterans Administration when they were denied “timely and complete” medical care for any disabilities that could reasonably be considered to be service related. A veterans’ right to such medical care had been recognized by the Supreme Court as the basis for denying combat veterans the right to sue the United States for injuries arising out of active military service. The Veterans Administration lawyers turned that cloak of immunity into a badge of shame.

Whether it was called a Fifth Amendment “due process” complaint or an Eighth Amendment “cruel and unusual punishment” claim, or a “Civil Rights” action, denying competent medical care to the Vietnam combat veterans suffering illness, disease, and disability attributable to service in Southeast Asia and now bound to the Veterans Administration system by physical disability or economic necessity was incompatible with the “evolving standards of decency that mark the progress of a maturing society.”

VA asserted sovereign immunity against the Vietnam combat veterans

The United States Attorney, representing the Veterans Administration attempted to shroud the VA and its bureaucrats with the sovereign immunity that was once claimed only by Royalty under the “Divine Right of Kings,” but Yannacone reminded the Court that the federal government continues to exist only because American families consent to offer up their young men and women as warriors to protect that government and they have done so, secure in their expectation that the Veterans Administration would continue to answer in a meaningful way the call of Abraham Lincoln in his Second Inaugural Address for a Veterans’ Administration “…to care for him who shall have borne the battle and for his widow and his orphan.”

Their expectation is based on a social compact between the sovereign people of the United States and their federal government which was first recorded in 1636 when the Pilgrims at Plymouth followed the established precedent of their English homeland and enacted a law providing that “if any man shall be sent forth as a soldier and shall return maimed, he shall be maintained competently by the colony during his life.”

Yannacone contended that the federal government waived any immunity it might have had with regard to veterans’ claims when it contracted with the American people to draft their sons. “The United States Attorney cannot seriously contend that American parents would consent to offer up their sons and daughters as fodder for war on the understanding that one man in Washington—appointed, not elected—may unilaterally and arbitrarily refuse to consider the valid claims of those men and women for the benefits they earned in jungles, swamps and paddies on the other side of the world.”

VA discretion

The VA attorneys conceded that the FTCA (Federal Tort Claims Act) might provide the Court with jurisdiction over individual claims of post-discharge medical malpractice at the VA, but that the FTCA affords jurisdiction only over “retail” as opposed to “wholesale” malpractice claims.
Yannacone argued that the discretion of the VA Administrator was not as limitless and unbounded as a monarch claiming authority to rule directly from Almighty God by Divine Right, but rather constrained by the law to resolve every reasonable doubt in favor of claims of service connected disease made by the Vietnam combat veterans or rebut those claims by clear and convincing evidence to the contrary.

The social compact with our veterans

Combat veterans have a right to “timely and complete” medical care for any injury, disease or disability resulting from exposure to toxic substances. The understanding of every American family that sends a son or daughter into battle is that the Veterans Administration will provide timely and complete medical care for all injuries and diseases that could reasonably be related in any way to their military service.

Nevertheless, the Veterans Administration raised another in their series of Catch-22 arguments: A veteran’s right to medical care does not vest until it is conferred by the Administrator; but if the Administrator does not choose to provide the medical care to which the Vietnam combat veterans are entitled, the federal Courts have no jurisdiction and the veteran goes without medical care.
Yannacone argued that a veteran’s right to medical care does not vest when it suits the fancy of the VA Administrator to acknowledge it. It vested the moment a veteran, whether volunteer or draftee stepped across that fabled line at the induction center into the military world of the armed forces of the United States and left their civilian world behind.

Constitutional arguments

Yannacone argued that deliberate fostering of institutional ineptitude by the VA which resulted in generalized “wholesale” medical malpractice throughout the entire VA Health Care System violated the constitutional rights of the Vietnam combat veterans who needed medical care and treatment at such facilities and are entitled to the best medical care and treatment this Country can provide as some partial recompense for their sacrifice in serving the interests of their fellow Americans.
Yannacone went on to raise the novel claim that the VA conspiracy to mistreat, maltreat, and fail to treat an entire class of American citizens—the more than 2.5 million combat veterans of the War in Southeast—was not just some kind of medical malpractice, it was a violation of an unenumerated right retained by these veterans as American citizens under the Ninth Amendment and protected under the Fifth Amendment of the United States Constitution.

Due process for Vietnam combat veterans

In the face of all that had been said and done since June, 1978 when a VA staffer, Maude De Victor, on behalf of a dying Vietnam combat veteran, Paul Reutershan, first complained publicly about the neglect of Agent Orange victims by the Veterans Administration, VA lawyers continued to assert that the Vietnam combat veterans had not been denied procedural due process in obtaining medical care or service connected disability benefits from the VA.
Yannacone raised the issue that there can be no due process for the Vietnam combat veteran within the Veterans Administration system when there is no way that attorneys experienced in litigating claims of occupational and environmental disease can represent veterans effectively before VA administrative tribunals. Congress eventually corrected this glaring injustice and Yannacone won the first case heard by the new Board of Veterans’ Appeals for a dying Agent Orange victim.

Yannacone also argued that there can be no due process for the Vietnam combat veteran within the VA system when the VA Administrator echoes the chemical company war contractors “party line” about the “lack of evidence establishing a clear link” between exposure to dioxin contaminated phenoxy herbicides in Vietnam and the subsequent development of cancer and other degenerative diseases among the exposed veterans and the awesome, catastrophic, polygenetic birth defects among their children.

The VA bureaucrats even called for medical evidence establishing the toxicity of 2,3,7,8-tetrachloro-dibenzo-p-dioxin (TCDD or dioxin) based on human experiments—the kind of experiments that were declared socially unacceptable for all times at Nuremburg shortly after the conclusion of World War II; the kind of experiments that require large numbers of “volunteers” who can only be found in concentration camps.

Later in the Agent Orange litigation, during the deposition testimony of one of the “paper clip” Nazi scientists who found a safe place to avoid judgment at Nuremburg by helping the United States develop defenses to the chemical-biological weapons they had helped develop, it was revealed that the Nazis had experimented with dioxin as part of their search for the “ultimate solution. ” Dioxin was rejected because it killed too slowly the be an effective agent of extermination in Hitler’s program of genocide and ethnic cleansing.

Yannacone also argued that due process for the Vietnam combat veterans required the Veterans Administration to perform the kind of comprehensive physiological and biochemical tests required to provide the veterans with the medical evidence necessary to establish a causal relation between their exposure to dioxin contaminated phenoxy herbicides in Vietnam and their present disease and disability.

In addition, due process for the Vietnam combat veterans required the VA to offer the genetic testing necessary to assure the veterans that their choices with respect to certain basic matters of family life—procreation and marriage—are truly “free’ from the doubt and free from the fear that haunts the Vietnam combat veterans today as some of their children and grandchildren add to the legacy of our military involvement in Southeast Asia as the victims of catastrophic polygenetic birth defects.

Civil Rights issues

One of the most important features of the VA litigation was Yannacone’s offer to prove through the testimony of Veterans Administration officials that Vietnam combat veterans were treated in a manner different from other veterans claiming compensation and benefits within the Veterans Administration system; that such treatment was invidiously discriminatory; and, to the extent that any mindless, soulless bureaucracy can be considered sentient, a malevolent “invidiously discriminatory animus” was present.

The lawyers for the VA argued that civil rights actions could be brought only to protect the rights of “negroes” since that was the intent of Congress when the original Civil Rights Act was enacted. Yannacone argued that real issue before the Court was, “Why shouldn’t Vietnam combat veterans have the same rights today as negroes after the Civil War?” Rhetorically, he said the question was, “How much more injury can the Grand Dragon of the Ku Klux Klan do to the plaintiff Johnny Wood and his sons, Johnny, Jr. and Jeffrey [named plaintiffs in the Agent Orange litigation who happened to be black], than the VA Administrator, his attorney, and their minions have already done?”

Alternatives for the Vietnam combat veterans

The Veterans Administration mandate carved in the granite facade of their national headquarters in Washington, D.C. proudly proclaims the mission of the Agency in the words of Abraham Lincoln, “to care for him who shall have borne the battle and for his widow and his orphan.” But the United States Attorney, representing the VA bureaucracy made it clear that the Vietnam combat veterans would have had better care in prison for draft evasion, and they could have remained healthier by fleeing to Canada, Sweden, or some other accommodating nation. By fleeing the country and ignoring their citizen obligations, they could have avoided both the inconveniences of combat in Southeast Asia, and the indignities of incarceration. They would also be free of the need to suffer at the whim of VA bureaucrats.

The sheer effrontery of the attorneys for the VA was no better demonstrated than in their suggestion to the Court that “it seems unlikely that the Supreme Court would give constitutional protection to their interests when it declines to confer it on more obviously fundamental interests such as housing, education and employment.”

The message

In their reluctant action against the Veterans Administration, the Vietnam combat veterans were not raising abstract questions as to the extent of bureaucrat’s ability to define the limits of their own administrative powers. The grievances of the Vietnam combat veterans were literally matters of life and death. Their lives and their deaths.

In-patient treatment of veterans at many VA hospitals is unconstitutional “cruel and unusual punishment!”
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