Agent Orange
Limited Information Is Available on the Number of Civilians Exposed in Vietnam and Their Workers' Compensation Claims Gao ID: GAO-05-371 April 22, 2005Concerns about difficulties civilian employees of the U.S. government may have in obtaining workers' compensation benefits for medical conditions they developed as a result of their exposure to Agent Orange in Vietnam led to GAO being asked to determine (1) what is known about the number of civilians who served in Vietnam, both those employed directly by the U.S. government and those employed by companies that contracted with the government; (2) what is known about the number, processing, and disposition of claims filed by these civilians; and (3) what options are available if Congress chooses to improve access to benefits for civilians exposed to Agent Orange in Vietnam who developed illnesses as a result of their exposure, and what are their cost implications?
While many federal agencies that were likely employers of civilian federal and contract workers during the Vietnam War had little information on these employees, a few provided us with limited information on federal employees and the amounts of contracts for companies that provided services to the military in Vietnam. We were unable to determine the reliability of the data provided. However, we used these data for the limited purpose of estimating that between 72,000 and 171,000 civilians may have worked for the U.S. government in Vietnam between 1964 and 1974. Our ability to provide more accurate information on the size of this workforce was limited because most agency records maintained during this period were not computerized, and because so much time has elapsed that many paper records have been destroyed and many agency personnel knowledgeable of the period are no longer working at these agencies. For the 32 Agent Orange-related claims identified (12 from federal civilians and 20 from contract employees), we found that these claimants faced many difficulties and delays because of a lack of readily available information on how to file a claim, their Vietnam era employers, and their exposure to Agent Orange, as well as processing delays caused by employers, insurance carriers, and Labor. Both Labor and private insurance carriers had difficulty identifying the number of claims they had received, largely because they do not assign a unique code to Agent Orange claims that would enable easy identification. Most of the claims we identified were filed in the past 10 years, and most have been denied. Denials of the claims stemmed, in part, from the fact that under the laws governing these claims, claimants must demonstrate a causal link between their exposure to Agent Orange and their medical conditions, which is difficult to prove so many years later. If Congress chooses to address this issue, several legislative options could be considered to attempt to improve access to compensation for civilians who were exposed to Agent Orange and developed medical conditions as a result, although they could have significant cost and policy implications. Congress could amend current law authorizing benefits for veterans to cover certain civilians or set up a separate program to cover them. Another option is for Congress to amend the GI Bill Improvement Act of 1977, which allows DOD to retroactively grant military status and authorize full VA benefits to certain civilian groups that support the military during armed conflicts. However, it is difficult to assess the potential costs of these options because of the limited data available on the number of civilians and their claims for compensation. Despite the difficulty of assessing the potential costs, before any of these options are pursued, their fiscal impact and the precedent-setting implications for individuals involved in other wars and conflicts since the Vietnam era should be carefully considered.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-05-371, Agent Orange: Limited Information Is Available on the Number of Civilians Exposed in Vietnam and Their Workers' Compensation Claims
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Report to Congressional Requesters:
United States Government Accountability Office:
GAO:
April 2005:
Agent Orange: Limited Information Is Available on the Number of
Civilians Exposed in Vietnam and Their Workers' Compensation Claims:
Civilian Exposure to Agent Orange in Vietnam:
GAO-05-371:
GAO Highlights:
Highlights of GAO-05-371, a report to congressional requesters.
Why GAO Did This Study:
Concerns about difficulties civilian employees of the U.S. government
may have in obtaining workers‘ compensation benefits for medical
conditions they developed as a result of their exposure to Agent Orange
in Vietnam led to GAO being asked to determine (1) what is known about
the number of civilians who served in Vietnam, both those employed
directly by the U.S. government and those employed by companies that
contracted with the government; (2) what is known about the number,
processing, and disposition of claims filed by these civilians; and (3)
what options are available if Congress chooses to improve access to
benefits for civilians exposed to Agent Orange in Vietnam who developed
illnesses as a result of their exposure, and what are their cost
implications?
What GAO Found:
While many federal agencies that were likely employers of civilian
federal and contract workers during the Vietnam War had little
information on these employees, a few provided us with limited
information on federal employees and the amounts of contracts for
companies that provided services to the military in Vietnam. We were
unable to determine the reliability of the data provided. However, we
used these data for the limited purpose of estimating that between
72,000 and 171,000 civilians may have worked for the U.S. government in
Vietnam between 1964 and 1974. Our ability to provide more accurate
information on the size of this workforce was limited because most
agency records maintained during this period were not computerized, and
because so much time has elapsed that many paper records have been
destroyed and many agency personnel knowledgeable of the period are no
longer working at these agencies.
For the 32 Agent Orange-related claims identified (12 from federal
civilians and 20 from contract employees), we found that these
claimants faced many difficulties and delays because of a lack of
readily available information on how to file a claim, their Vietnam era
employers, and their exposure to Agent Orange, as well as processing
delays caused by employers, insurance carriers, and Labor. Both Labor
and private insurance carriers had difficulty identifying the number of
claims they had received, largely because they do not assign a unique
code to Agent Orange claims that would enable easy identification. Most
of the claims we identified were filed in the past 10 years, and most
have been denied. Denials of the claims stemmed, in part, from the fact
that under the laws governing these claims, claimants must demonstrate
a causal link between their exposure to Agent Orange and their medical
conditions, which is difficult to prove so many years later.
If Congress chooses to address this issue, several legislative options
could be considered to attempt to improve access to compensation for
civilians who were exposed to Agent Orange and developed medical
conditions as a result, although they could have significant cost and
policy implications. Congress could amend current law authorizing
benefits for veterans to cover certain civilians or set up a separate
program to cover them. Another option is for Congress to amend the GI
Bill Improvement Act of 1977, which allows DOD to retroactively grant
military status and authorize full VA benefits to certain civilian
groups that support the military during armed conflicts. However, it is
difficult to assess the potential costs of these options because of the
limited data available on the number of civilians and their claims for
compensation. Despite the difficulty of assessing the potential costs,
before any of these options are pursued, their fiscal impact and the
precedent-setting implications for individuals involved in other wars
and conflicts since the Vietnam era should be carefully considered.
What GAO Recommends:
The Department of Labor (Labor) should enhance its processing and
management of claims, including improving the information used to track
claims, maintaining better information on the insurance carriers it
licenses, and providing better information to claimants to use in
filing claims.
Labor generally agreed with our recommendations, while the Department
of Veterans Affairs (VA) expressed serious concerns about the cost and
policy implications of the options for improving civilians‘ access to
compensation.
[Hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-05-371].
To view the full product, including the scope
and methodology, click on the link above.
For more information, contact Robert E. Robertson at (202) 512-7215,
robertsonr@gao.gov.
[End of Section]
Contents:
Letter:
Results in Brief:
Background:
Because Information Is Limited, Our Estimate of the Number of Federal
and Contract Employees in Vietnam during Wartime Is Imprecise:
For the Few Claims Identified, Claimants Faced Many Obstacles, and to
Date, Most Claims Have Been Denied:
Legislative Options Could Ease Access to Benefits for Civilians:
Conclusions:
Recommendations for Executive Action:
Agency Comments:
Appendix I: Technical Appendix:
Appendix II: Comments from the Department of Labor:
Appendix III: Comments from the Department of Veterans Affairs:
Appendix IV: GAO Contacts and Staff Acknowledgments:
GAO Contacts:
Staff Acknowledgments:
Tables:
Table 1: Timeline Showing Difficulties One Claimant Experienced
Locating His Former Employer's Insurance Carrier:
Table 2: Criteria for Acceptance under DOD Directive 1000.20:
Table 3: Estimated Number of DOD Federal Employees in Vietnam, 1964 to
1974:
Table 4: Estimated Number of DOD Contract Employees in Vietnam, 1966-
1974:
Figures:
Figure 1: Conditions VA Recognizes as Related to Agent Orange Exposure:
Figure 2: Overview of the Workers' Compensation Claims Process for
Federal Employees:
Figure 3: Overview of the Workers' Compensation Claims Process for
Contract Employees:
Abbreviations:
CIA: Central Intelligence Agency:
DBA: Defense Base Act:
DOD: Department of Defense:
FECA: Federal Employees' Compensation Act:
IOM: Institute of Medicine:
OWCP: Office of Workers' Compensation Programs:
VA: Department of Veterans Affairs:
[End of Section]
United States Government Accountability Office:
Washington, DC 20548:
April 22, 2005:
The Honorable Bill Nelson:
United States Senate:
The Honorable Lane Evans:
House of Representatives:
The Honorable Mark Foley:
House of Representatives:
The Honorable Robert Wexler:
House of Representatives:
During the Vietnam War, U.S. civilians, along with military personnel,
were in the country when Agent Orange, an herbicide containing dioxin,
was used as a defoliant. Civilians--both federal and contract
employees--performed a variety of jobs in support of the military,
including helicopter maintenance, road building, and cargo handling.
After many years of controversy, in 1991 Congress passed the Agent
Orange Act to provide military veterans who developed medical
conditions related to dioxin exposure in Vietnam with easier access to
compensation, such as payments for medical expenses. The act associates
dioxin exposure with latent illnesses, including several forms of
cancer. The act also includes several presumptions, including the
presumed exposure to Agent Orange of any military service member who
was in Vietnam and developed a dioxin-related disease. While civilians
who worked for the U.S. government in Vietnam are not covered under the
Agent Orange Act, workers' compensation programs are available to
restore lost wages and pay medical expenses of those who are disabled
by an occupational illness. Federal employees file claims for workers'
compensation with their employing agency, which refers the claims to
the Department of Labor (Labor) under the Federal Employees'
Compensation Act (FECA). Workers' compensation coverage for employees
who work under contract to the U. S. government outside the United
States is provided under the Defense Base Act (DBA), which extends the
Longshore and Harbor Workers' Compensation Act. These individuals file
claims through their employers with the employers' insurance carriers.
Concerned about difficulties civilian employees have had in obtaining
workers' compensation benefits for diseases that may be related to
their exposure to Agent Orange in Vietnam, you asked us to determine
(1) what is known about the number of civilians who served in Vietnam,
both those employed directly by the U.S. government and those employed
by companies that contracted with the government; (2) what is known
about the number, processing, and disposition of claims filed by these
civilians; and (3) what options are available to Congress if it chooses
to improve access to workers' compensation and benefits for civilians
exposed to Agent Orange in Vietnam who developed illnesses as a result
of their exposure, and what are their cost implications?
To determine the number of civilian employees working in Vietnam during
the war, we relied on interviews with and reports from the Departments
of Defense (DOD), State, Agriculture, and Treasury as well as the
Central Intelligence Agency (CIA), the Census Bureau, and the National
Archives. To determine the number and disposition of workers'
compensation claims filed by federal employees, we reviewed the
policies and procedures of Labor's Office of Workers' Compensation
Programs (OWCP), interviewed agency officials and claims examiners, and
reviewed claim files. For claims filed by contract employees, we
contacted employers and the insurance carriers that provided a majority
of the workers' compensation coverage during the Vietnam War to obtain
information on the number of claims filed and the disposition of these
claims. We also interviewed Labor officials and examined files for
claims filed by contract employees that were referred to Labor after
being denied by the insurance carriers. To identify options for
improving access to workers' compensation and other benefits for
civilian employees, we reviewed relevant laws and policies and
discussed possible options and estimates of the potential costs with
Labor and Department of Veterans Affairs (VA) officials. We conducted
our work in accordance with generally accepted government auditing
standards between June 2004 and March 2005.
Results in Brief:
While many federal agencies that were likely employers of civilian
federal and contract workers during the Vietnam War had little
information on these employees, a few provided us with limited
information on federal employees and the amounts of contracts for
companies that provided services to the military in Vietnam. Although
we were unable to determine the reliability of this information, we
used it for the limited purpose of estimating the number of civilians
that may have worked for the U.S. government in Vietnam during the war.
Using these data, we estimated that between 72,000 and 171,000
civilians may have worked for the U.S. government in Vietnam between
1964 and 1974. Our ability to more accurately identify the size of this
workforce was limited by the fact that at that time, most records were
not computerized, and many of the paper records have either been
destroyed or were not organized in a way that would facilitate the
identification of such personnel. For many other agencies likely to
have had federal civilian or contract workers in Vietnam, officials
with knowledge of the period were no longer there because of
retirements, reassignments, and other staff turnover. Nevertheless,
using numbers provided by two agencies that were able to locate some
records--the Department of State and DOD--we developed estimates of the
number of federal and contract employees in five agencies who may have
worked in Vietnam between 1964 and 1974.
For the 32 civilian workers' compensation claims for diseases
associated with Agent Orange exposure identified, we found that
claimants faced many obstacles and that to date, most of the claims
have been denied. Neither Labor nor private insurance carriers could
readily identify the number of claims they had received, largely
because they did not have a unique code to identify Agent Orange
claims, and because some claims were not accurately recorded in Labor's
database. By asking claims examiners to recall information about claims
that may have been related to Agent Orange exposure and conducting
searches of their databases, Labor and the insurance carriers
identified 12 claims from federal civilians and 20 claims from contract
employees, most of which were filed in the past 10 years. However,
because we were unable to determine whether additional claims that were
not identified exist, the information we obtained about these claims
does not necessarily represent the nature or disposition of all Agent
Orange claims. Our review of these claims showed that claimants faced a
number of difficulties and delays because of a lack of readily
available information on how to file a claim, their Vietnam era
employers, and their exposure to Agent Orange, as well as processing
delays caused by employers, insurance carriers, and Labor. Labor's
denial of 11 of the 12 claims filed by federal employees (1 claim was
withdrawn by the claimant) stemmed, in all but 1 case, from the fact
that the claimants were unable to establish a sufficient causal link
between their employment-related injury (exposure) and their medical
conditions, as required under FECA. This was the case even when the
claimants established that they were exposed to Agent Orange in
connection with their employment and suffered from a serious illness or
disease. Establishing this causal link between exposure and an illness
or disease is difficult in cases involving cancer and other illnesses
that may have multiple causes and take many years to develop. Of the 20
claims filed by contract employees, 9 were initially denied by the
insurance carriers and 1 was approved for payment. The disposition of
the other 10 claims is unknown, because although Labor officials
initially told us they were not Agent Orange claims, with our
assistance, they later discovered that they were Agent Orange claims,
but it was too late for us to include them in our analysis. Of the 9
claims initially denied by the insurance carriers, the claimants have
taken no further action on 4 of them, 3 of the claimants are awaiting
hearings by an administrative law judge, and Labor upheld the insurance
companies' denial for 2 of the claims--1 because it was not filed
timely and the other because the claimant did not sufficiently prove
his exposure to Agent Orange. The claim that was approved by Labor for
payment involved a self-insured contractor to the CIA that was no
longer in business. Absent an employer or insurance carrier, the CIA--
acting in the role of the employer and the insurance carrier--stated
that it "had no objections" to paying the claim. Labor reviewed the
claim and accepted it for payment.
If Congress chooses to address this issue, several legislative options
could be considered to attempt to improve access to workers'
compensation or other benefits for civilian employees exposed to Agent
Orange in Vietnam who developed medical conditions as a result of their
exposure. Congress could amend the Agent Orange Act and related
legislation authorizing benefits for veterans to include civilians who
worked in Vietnam or authorize a separate program to specifically cover
these individuals. Another option is for Congress to amend the GI Bill
Improvement Act of 1977, which allows DOD retroactively to grant
military status and authorize providing full VA benefits to certain
civilian groups that support the military during armed conflicts. All
of these options, however, have cost and policy implications, as
illustrated by the payments VA makes for claims paid under the Agent
Orange Act. Currently, for the four most common medical conditions
covered under the act, VA pays, on average, $8,500 annually for
disability compensation and $1,000 for medical costs for each claim.
Any consideration of these options should include an assessment of
their cost and policy implications, such as whether they would set a
precedent that could prompt other federal and contract employees who
have worked for the U. S. government in a war zone since the Vietnam
era to seek similar benefits. Such a precedent could have significant
cost implications because the U.S. military has employed a much larger
number of contractor personnel in recent wars and conflicts than in
Vietnam.
We are making several recommendations intended to improve Labor's
processing and management of workers' compensation claims from
individuals related to diseases associated with exposure to Agent
Orange in Vietnam, including improving the information used to track
claims, maintaining better information on insurance carriers authorized
by Labor to provide coverage to contract employees, and providing
better information to claimants to use in filing their claims. In its
written comments on a draft of this report, Labor generally agreed with
our recommendations and provided details of actions it plans to take to
improve its handling of claims. In its written comments, VA stated
serious concerns about the policy and cost implications of the
legislative options we included in the report for easing civilians'
access to workers' compensation benefits. As noted in the report, we
agree that the cost and policy implications of these options should be
carefully considered.
DOD provided only an informal technical comment on the report. Labor
and VA also provided a few technical clarifications, which we
incorporated as appropriate.
Background:
Agent Orange is one of several herbicides sprayed by the U.S.
government in Vietnam in the 1960s and 1970s as a defoliant. It
contains tetrachlorodibenzo-para-dioxin (dioxin), a chemical that the
Environmental Protection Agency and the Occupational Safety and Health
Administration have classified as highly toxic and carcinogenic. DOD
sprayed an estimated 11 million gallons of Agent Orange in Vietnam
during the war. In the ensuing years, dioxin has been a focus of
research and has been associated with a number of latent illnesses,
including cancer and most recently diabetes, which have developed among
people who have been exposed to the chemical. The use of Agent Orange
has also spawned much litigation over the years, including suits
against the manufacturers of the product and against the United
States.[Footnote 1]
Until 1991, when Congress passed the Agent Orange Act, military
veterans who believed their illnesses were caused by dioxin exposure
had limited success in obtaining medical benefits and other
compensation. Previously, the VA had denied benefits to most veterans
who claimed adverse health effects from the herbicide because poor
records made it difficult for many of them to demonstrate where and
when they had come into contact with the chemical, and because VA had
not accepted proof of a direct link between certain illnesses and
dioxin. The Agent Orange Act subsequently authorized awards on the
presumption that any veteran who served in Vietnam and who develops
certain diseases identified by the National Academy of Sciences'
Institute of Medicine (IOM) and accepted by VA had been exposed to
Agent Orange. The act also gave VA responsibility for providing
information to veterans about health conditions related to Agent Orange
exposure and assistance in preparing their claims.
Over time, the body of research on the health effects of dioxin
exposure has grown, and in recent years, research organizations such as
IOM have learned more about positive associations between exposure and
certain medical conditions. Further, both the National Institutes of
Health and the Environmental Protection Agency consider dioxin a
carcinogen on the basis of studies showing associations between
exposure and medical conditions such as lung cancer. Under the Agent
Orange Act, IOM is required to review and analyze all medical research
on dioxin exposure every 2 years and advise VA on the degree to which
it believes Agent Orange is associated with certain health conditions.
On the basis of this research, VA has accepted a number of medical
conditions associated with Agent Orange exposure. Most of these
conditions are types of cancers, such as non-Hodgkin's lymphoma and
soft-tissue sarcomas, or skin disorders, such as chloracne. More
recently, prostate cancer and diabetes were added to the list after
research showed a higher than expected rate of these conditions among
those exposed to dioxin. (See fig. 1.)
Figure 1: Conditions VA Recognizes as Related to Agent Orange Exposure:
[See PDF for image]
Source: VA.
[End of Figure]
Federal employees and employees who worked under contract to the U.S.
government in Vietnam are not covered by the Agent Orange Act. Rather,
federal employees who are injured or become ill as a result of their
employment, including those who worked in Vietnam, may file a claim
under FECA, a comprehensive workers' compensation law for federal
employees. To obtain benefits under FECA, claimants must show that (1)
they were employed by the U.S. government, (2) they were injured
(exposed) in the workplace, (3) they have filed a claim in a timely
manner, (4) they have a disabling medical condition, and (5) there is a
causal link between their medical condition and the injury or exposure.
Unlike veterans, federal employees who file claims under FECA based on
Agent Orange exposure must demonstrate that they were personally
exposed to Agent Orange while in Vietnam and that their medical
conditions were "proximately caused" by this exposure, (i.e., that
there was a causal link between the exposure and their condition).
Labor has primary responsibility for processing all FECA claims and has
assigned the processing of special types of claims, such as those for
Agent Orange exposure, to specific OWCP offices. Labor also processes
all appeals from claimants regarding claims that were denied. Claimants
have three levels of appeal: (1) reconsideration by an OWCP claims
examiner, (2) a hearing or review of the written record by OWCP's
Branch of Hearings and Review, and (3) a review by the Employees'
Compensation Appeals Board. Either a request for reconsideration by a
senior claims examiner not involved in the initial decision or a
hearing request is generally the first level of appeal, followed by an
appeal to the Employees' Compensation Appeals Board. A decision of the
Employees' Compensation Appeals Board is final--claimants cannot appeal
Labor's decisions in federal court. However, if new evidence becomes
available after the decision, the claimant can request the claim be
reopened for reconsideration and further review by Employees'
Compensation Appeals Board.
Workers' compensation coverage for employees who work under contract to
the U. S. government outside the United States is provided by the
employing contractor under DBA.[Footnote 2] Under DBA, individuals who
can show that they were harmed and that working conditions could have
caused this harm are entitled to a presumption that their claims are
work-related and valid. Claimants must also establish that their claim
was filed timely and show proof of employment, exposure to Agent
Orange, a disabling medical condition, and that their condition arose
naturally out of employment (i.e., that their condition was related to
their employment in Vietnam).[Footnote 3] Under DBA, Labor is required
to license the insurance carriers that provide the employers' workers'
compensation coverage.[Footnote 4] To prevent employers and insurance
carriers from an undue financial burden for insuring employees during a
time of armed conflict, Congress enacted the War Hazards Compensation
Act, which allows insurance carriers to obtain reimbursement from Labor
when a claim is paid for an injury or death caused by a "war-risk
hazard."[Footnote 5] Contract employees who are injured file workers'
compensation claims directly with their employers and their employers'
private insurance carriers. The insurance carrier may either accept or
"controvert" (deny) the claim.[Footnote 6] Claimants may request that
OWCP review the insurance carrier's decision and may ask for a hearing
with one of Labor's administrative law judges. The administrative law
judge issues a decision and order awarding or denying benefits.
Claimants may appeal an administrative law judge's decision to Labor's
Benefits Review Board. Claimants may also obtain review of the Benefits
Review Board's decisions in federal court.[Footnote 7]
Because Information Is Limited, Our Estimate of the Number of Federal
and Contract Employees in Vietnam during Wartime Is Imprecise:
Many of the agencies we contacted were unable to locate records on
federal and contract workers employed in Vietnam, but on the basis of
the limited data available, we estimated that at least 72,000 civilian
employees and as many as 171,000 may have worked in Vietnam between
1964 and 1974. We developed these estimates using data we obtained from
the Department of State and DOD but were unable to determine the
reliability of the data.
Many Agencies Were Unable to Locate Records on Civilians Employed in
Vietnam, but a Few Provided Some Estimates:
Most of the federal agencies we identified as likely to have had
employees in Vietnam--DOD, CIA, and the Departments of State,
Agriculture, and Treasury--were unable to provide us with the exact
number of civilian employees they had working in Vietnam during the
war. Agency officials told us they had difficulty identifying these
workers because personnel records were kept solely on paper, as
computers were not in common use at that time. Agency officials told us
that these paper records may have been destroyed or, if such records
still exist, were not indexed or organized in searchable formats. In
addition, the location of some records was unknown because of the loss
of institutional knowledge resulting from staff turnover over the years.
Both the State Department and DOD located some historical data that we
used to develop estimates of the number of civilians who worked in
Vietnam. Three of the five agencies we contacted--CIA and the
Departments of Agriculture and Treasury--were unable to provide us with
any data on the number of federal and contract employees they had
working in Vietnam during the war. The Department of State was able to
identify its federal employees who worked in Vietnam between January
1964 through November 1965 and January 1967 through November 1974 from
published quarterly lists of employees, but the agency was unable to
determine the number of employees working for the agency in Vietnam
under contract. Although DOD officials were unable to locate data, we
located historical reports of civilian personnel strength by year at
DOD's Directorate for Information, Operations, and Reports but were not
able to obtain an unduplicated count of civilians who were in Vietnam
between 1964 and 1974. This office later located service contract
amounts during the Vietnam War period published in historical reports,
from which we were able to estimate the number of contract employees.
Using Limited Data, We Estimated That There May Have Been as Many as
171,000 Civilians Working in Vietnam during the War:
Using data from the Department of State and DOD, we estimated that at
least 72,000 and as many as 171,000 civilian employees may have worked
in Vietnam during the war. From the quarterly lists of employees
provided to us by the Department of State, we estimated that the agency
had about 6,000 employees in Vietnam between 1964 and 1974.
To estimate the number of DOD federal employees, we used annual
civilian personnel strength data from historical DOD reports and
assumed a 2-year rotation similar to that of military personnel to
develop an unduplicated count of about 4,600 employees. We obtained the
personnel strength data from published DOD reports but were unable to
determine how the data were collected; therefore, we were unable to
determine the reliability of these data.
To estimate the number of DOD contract employees, we obtained from DOD
the dollar amount of DOD service contracts, by year from 1966 to 1974,
where the workplace was Vietnam, and divided these annual amounts by a
range of "burdened labor rate" estimates to calculate the number of
employees represented by these contracts each year.[Footnote 8]
However, DOD was unable to provide us with information on the range of
salaries paid to contract employees in Vietnam. Therefore, for our
analysis, we assumed annual salaries of $7,500, $15,000 and $25,000---
which represent a range of low, middle, and high salaries of federal
employees during that time--to obtain burdened labor rates of $15,000,
$30,000 and $50,000 per person. As with the annual estimates of federal
DOD employees, we assumed a 2-year rotation to obtain an unduplicated
count, which ranged from about 43,000 to 142,000 contract workers.
To determine the number of federal and contract employees from the CIA
and the Departments of Agriculture and Treasury, we used numbers from
the Department of State as a proxy, assuming that these agencies all
had roughly the same number of employees in Vietnam and would not have
had as many employees in Vietnam as the much larger number of DOD
contract employees needed to support military operations. On the basis
of these assumptions, we estimated that these four agencies may have
had about 24,000 employees in Vietnam during the war. See appendix I
for additional information on the methods we used to develop these
estimates.
For the Few Claims Identified, Claimants Faced Many Obstacles, and to
Date, Most Claims Have Been Denied:
Although Labor's claims examiners and the insurance carriers we
interviewed had difficulty identifying claims, our review of the claims
identified showed that civilians faced difficulty in pursuing them
because of difficulty obtaining information about the claims process,
their former employers, and their employers' insurance carriers, and
because of processing delays. Labor denied 11 of the 12 claims filed by
federal employees (1 was withdrawn), primarily because the claimants
were not able to prove a direct relationship between exposure to Agent
Orange and their medical conditions, as required by FECA. Of the 20
claims filed by contract employees, 9 were initially denied by the
insurance carriers and 1 was approved for payment. We were unable to
review the case files for the remaining 10 cases to determine whether
or not they were paid because they were identified too late in our
review to include them.
Labor and the Insurance Carriers Could Not Readily Identify Agent
Orange Claims through Their Databases:
Labor and the insurance carriers we contacted had difficulty
identifying Agent Orange claims using their databases but were able to
identify 12 claims from federal employees and 20 claims from contract
employees. However, because we were unable to determine whether
additional claims that were not identified exist, the information we
obtained about these claims does not necessarily represent the nature
of all Agent Orange claims or their disposition. Most of the claims
they identified were filed in the past 10 years.
Claims from Federal Employees:
Because Labor does not assign a unique code to identify Agent Orange
claims in its database, the agency was unable to locate any of the
claims filed by federal employees under FECA by querying its database.
Although Labor has a code for injuries caused by exposure to chemicals
and toxins, this code is used for many claims involving toxins other
than dioxin and therefore was not useful in identifying Agent Orange
claims. In addition, this code was not used for several of the Agent
Orange claims identified. Unable to locate claims using Labor's
database, we asked the claims examiners in OWCP assigned to review
Agent Orange claims from federal employees if they could recollect how
many of these claims they had processed. They identified 12 claims
using information from e-mails, personal notes, and personal
recollections of information about the claims.[Footnote 9] However, we
were unable to confirm that they had identified all Agent Orange claims
from federal employees. Of the 12 claims identified, most were filed in
the past 10 years, although 2 were filed in 1988 and 1 in 1991.
In addition, inaccurately coded claims and inconsistent coding
procedures prevented identification of Agent Orange claims. For
example, for 9 of the 12 claims identified by the claims examiners, the
"cause of injury" code recorded in Labor's database was "99--cause
unknown," a catch-all code used to identify the type of injury when the
cause of injury reported by the claimant on the claim form is not
clear.[Footnote 10] Other fields in the database, such as the type of
medical condition, were not useful in identifying Agent Orange claims
because such exposure could cause more than one type of condition, and
because most of the medical conditions associated with Agent Orange
exposure could also have other causes. One clerk who codes the claims
told us she was sometimes uncertain which codes should be used for
Agent Orange claims and that she received limited guidance on how to
code them. For example, two of the claims files showed that Labor coded
the same condition, diabetes, with two different nature of injury
codes, "cardiovascular disease--other" for one, and "blood disorder"
for the second claim. In addition, the agency has no procedures for
checking for data entry errors, and our review of Agent Orange claims
identified errors. For example, one claim coded as "exposure to
chemicals and toxins" was actually a heart condition. One Agent Orange
claim for breast cancer was coded "sprain/strain of ligament, muscle,
tendon, not back." Claims examiners told us that although they can
request that the clerks who entered the codes go back and correct
coding errors, there is little incentive for them to request that
errors be corrected because it does not affect their ability to process
claims.
Claims from Contract Employees:
Labor and representatives from insurance carriers had difficulty
identifying Agent Orange claims filed by contract employees under DBA
largely because they did not have a unique code to identify these
claims. However, with our assistance, Labor was able to identify 20
claims. Ten of the claims were initially identified by Labor using its
database and recollections of claims by Labor officials. Labor located
5 claims by--upon our request--querying its database for claims where
the date of injury was during the Vietnam War (January 1, 1964, through
December 31, 1975) and the nature of the injury was an occupational
disease, and then reviewing the list of claims produced to identify
claims they remembered as being related to Agent Orange. In addition,
Labor officials remembered the names of 3 claimants that were not
identified in their query of the database. The insurance carriers we
interviewed identified 2 additional Agent Orange claims. Labor located
1 of these claims but was not able to find the other claim because,
according to Labor officials, it was not sent to the agency by the
insurance carrier, as required.[Footnote 11] All but 1 of these 10
claims was filed in the past 10 years.
In addition, we assisted Labor in identifying 10 more claims from
contract employees. Although 7 of these claims appeared on the printout
from their initial database query, Labor officials initially told us
they were not Agent Orange claims. In addition, because the employer
noted on the printout for some of these claims was the same as the
employer for 1 of the Agent Orange claims we reviewed, we asked Labor
to go back and review the other claims to make sure that they were not
Agent Orange claims. From this second review, Labor identified 3
additional claims. However, because they were identified so late in our
review, we were not able to include these 10 claims in our analysis of
the disposition of the claims.
Civilians Faced Difficulty in Pursuing Claims, in Part, because of
Difficulty Obtaining Information about the Claims Process and Poor
Records:
Both federal and contract employees faced difficulties pursuing claims
for Agent Orange exposure because they lacked key information on the
filing process, had difficulty identifying responsible parties and
obtaining needed documentation, and experienced processing errors and
delays. Our review of the files showed that several claimants had
little information about the claims process because their first point
of contact, their former employer, was difficult to locate.
Although claims processing for both federal and contract employees
begins with their former employer, the process differs thereafter. As
shown in figure 2, federal employees obtain the appropriate forms and
documentation from their former employers and file claims with those
agencies or departments, which then forward the claims to Labor for a
decision. As shown in figure 3, contract employees also obtain the
appropriate forms and documentation from their former employers but
file their claims with their employer's insurance carriers.
Figure 2: Overview of the Workers' Compensation Claims Process for
Federal Employees:
[See PDF for image]
[End of figure]
Figure 3: Overview of the Workers' Compensation Claims Process for
Contract Employees:
[See PDF for image]
[End of figure]
Our review of the claims files showed that federal and contract
employees sometimes filed their claims incorrectly because they were
unable to locate their former employers in order to obtain information
about the filing process. Although the first source of information in
filing workers' compensation claims is the employer, since the Vietnam
War, some employers have reorganized or are no longer in business. Of
the claims we reviewed, 6 claimants had difficulty locating their
former employer. Even federal employees can have difficulties locating
their employer because of the many government reorganizations over the
30 years since the end of the Vietnam War. For example, one claimant
who worked for DOD in Vietnam had difficulty determining which office
to send his claim to because the workers' compensation office of his
former employer, the U.S. Army Audit Agency, had been renamed and
relocated. He initially filed his claim with his current DOD employer,
the Defense Finance and Accounting Service, which advised him to send
the claim to the Department of the Army's Personnel and Employee
Services, the office that now handles claims for former employees of
the U.S. Army Audit Agency.
Our review of the claims files also showed that contract employees and
Labor had difficulty locating the responsible insurance carriers
because of industry mergers, changes in carriers over time, and lack of
easily accessible records. Some employers changed insurance carriers
over time, so their current carrier was not the one that had provided
coverage during the Vietnam War. Although Labor licensed the insurance
carriers that provided coverage for contract employees during the war,
the agency does not track information about the carriers in a format
that is easily researchable. Labor officials told us that they keep the
information on the licensed insurance carriers on handwritten 3 x 5
cards that are filed by employer name in filing cabinets. Searching for
a carrier is a time-consuming effort because there are hundreds of
cards for multiple policies covering various periods of time. In
addition, Labor does not track historical changes in the ownership of
the insurance carriers over time, and companies may have been acquired
by other companies--a common practice in the insurance industry,
according to Labor officials. For example, an insurance company that
provided coverage for contract employees for 3 of the claims we
reviewed was purchased by another company, which could not locate
claims for these individuals from the old company's records. Labor had
no information about the company being purchased by another company and
had difficulty locating the insurance carrier liable for payment.
Difficulties identifying insurance carriers can add up to extensive
delays for claimants. Of the 10 claims we reviewed from contract
employees, 4 claimants had difficulty locating their insurance carrier.
For example, one contract employee's claim was delayed 13 months before
the correct carrier was identified. Initially, the claimant mistakenly
sent his claim directly to Labor instead of his employer and the
employer's insurance carrier. Once notified by Labor of the claim, the
employer requested Labor's assistance in locating the carrier. One of
OWCP's district offices searched its paper records (the 3 x 5 cards it
retains on the carriers it licenses) and identified the correct
carrier. At the same time, however, the employer asserted that another
carrier was the responsible party. The claim was filed with this
carrier, who later denied the claim, asserting that it was not the
employer's carrier during the period when the claimant worked for the
employer. During the months that this carrier was deciding the claim,
another of OWCP's district offices, apparently unaware of the other
district office's efforts, identified yet a different carrier as the
responsible party. When presented with the claim, this carrier also
denied it because the carrier had not been the employer's carrier
during that time. Over a year since the claim was first filed, the
employer correctly identified the correct carrier. The claim was filed
with the correct carrier and was ultimately denied (see table 1).
Table 1: Timeline Showing Difficulties One Claimant Experienced
Locating His Former Employer's Insurance Carrier:
Date: January 1996;
Activity: Claimant filed claim with OWCP's New York district office,
and his former employer requested Labor's assistance in locating the
insurance carrier.
Date: February 1996;
Activity: OWCP's Seattle district office identified an insurance
carrier (#1) as the responsible party. At the same time, the claimant's
former employer asserted that another insurance carrier (#2) was the
responsible party and sent the claim to them.
Date: March 1996;
Activity: OWCP's New York district office identified another insurance
carrier (#3) as the responsible party and notified the insurance
carrier of the claim.
Date: April 1996;
Activity: Insurance carrier #3 denied the claim, stating that although
it provided coverage for this employer, it was not the responsible
party during the period when the claimant's alleged exposure occurred.
Date: May 1996;
Activity: Insurance carrier #2 also denied the claim, stating that it
had not provided coverage during the period when the claimant's alleged
exposure occurred.
Date: January 1997;
Activity: Claimant's former employer identified the correct insurance
carrier (#1) and sent the claim to it.
Date: February 1997;
Activity: The correct insurance carrier (#1) denied the claim.
Source: GAO analysis.
[End of table]
Employer and insurance carrier processing errors and difficulty
locating records further delayed employees' claims. For the claims we
reviewed, several employers had difficulty verifying the claimant's
employment because they were unable to locate personnel records for
employees who had worked in Vietnam. For example, one employer denied
that the claimant had been one of its employees, although the claimant
provided copies of pay stubs, employee identification documents, and
several letters of recommendation from the company. Eventually, Labor
interceded on behalf of the employee and insisted that the employer
recognize the claimant as an employee. Insurance carriers also had
difficulty determining if they had provided coverage to employers and
claimants because of difficulties locating old records. Even federal
employees can experience difficulty finding their employers and
locating records. For example, one federal employee's claim was delayed
over 2 years while the Department of Agriculture determined that he was
an employee during the Vietnam War but was on detail to the Department
of State. In its reply to Labor regarding the delay, the Department of
Agriculture noted that it no longer had records for the period in
question. Another federal employee, who was unable to obtain relevant
medical records from his employer or the National Personnel Records
Center, eventually withdrew his claim stating "at this time, I am under
Hospice care and have not the energy to fight you anymore."
Once claims were submitted to Labor, both federal and contract
employees faced additional delays because of processing errors at
Labor, including claims being sent to the wrong office and information
on the claims forms being typed incorrectly. For example, for one claim
from a federal employee, Labor incorrectly processed the claimant's
request for reexamination of the written record by Labor's Branch of
Hearings and Review (typically, a claimant's second level of appeal),
instead sending it to the Employees' Compensation Appeals Board (a
claimant's final level of appeal). This error created confusion and
delayed processing of the claim for 11 months while the error was
identified and the claim sent to the correct location. For the same
claim, Labor continued to send notices to the claimant's former federal
employer at the wrong address for over a year, even though the post
office returned these letters stamped "undeliverable" and the employer
notified Labor of the correct address.
Claims Filed under FECA Require Proof of a Causal Link, and to Date,
Labor Has Denied All but One Claim:
Of the 12 claims filed by federal employees for medical conditions
related to Agent Orange exposure, Labor denied 11 of them for failure
to meet at least one of FECA's five requirements, and 1 claim was
withdrawn by the claimant. Of the 11 claims that were denied, Labor
denied 10 of them because the claimant failed to prove a causal link
between his medical condition and exposure to Agent Orange, and 1 claim
was denied because it was not filed within the time limits prescribed
by FECA.
Furthermore, 5 of the claims denied by Labor were appealed by the
claimants. Of those that were appealed, Labor upheld the denial of 4
claims, and a decision is still pending on 1 claim. All of the claims
that were appealed were initially denied because of the claimants'
failure to prove a causal link between exposure and their medical
conditions. Three of the 5 claimants requested reconsideration of their
claims by a claims examiner. Labor upheld its initial denial after
reconsidering 2 of these claims, and to date, neither claimant has
sought a hearing by OWCP's Branch of Hearings and Review or a review by
the Employees' Compensation Appeals Board. The third claim for which a
reconsideration was requested is still pending. Of the 2 remaining
claims that were appealed, one of the claimants requested an oral
hearing; the denial was upheld. The other claimant sought redress
through both a written review by the Branch of Hearings and Review and
an appeal to the Employees' Compensation Appeals Board. The board
upheld Labor's decision.
Almost all of these claims from federal employees--10 of the 11 claims-
-were denied because the claimants failed to prove a causal link
between their medical conditions and exposure to dioxin. Under FECA, to
prove causation, claimants must provide "medical evidence establishing
that the employment factors identified by the claimant were the
proximate cause of the condition for which compensation is claimed, or,
stated differently, medical evidence establishing that — the diagnosed
condition is causally related to the employment factors identified by
the claimant." To determine whether a claimant has shown proximate
cause, Labor's claims examiners and hearings representatives told us
that they examine the medical research and the "rationalized medical
opinions" provided by the claimants' doctors to demonstrate an explicit
cause and effect relationship between the medical conditions and
alleged exposure. Claims examiners and hearing representatives told us
that the claimants' doctors may use medical literature to support these
rationalized opinions, but the doctors must apply this research to the
claimants' specific circumstances.
Claimants, however, have faced three challenges to proving a causal
link between their medical conditions and their exposure to dioxin.
First, some of the claimants' doctors are not familiar with the link
between dioxin exposure and the development of some illnesses. In one
case file we reviewed, one of the claimant's doctors stated: "I have
very little training in epidemiology and cannot tell you much about the
coincidence of Agent Orange exposure with the development of prostate
cancer," and another said he was "certainly unable to provide any kind
of expert opinion" on the relationship between Agent Orange and the
development of prostate cancer.
Second, according to Labor, some of the claimants' doctors relied on
general medical research to support their opinions without applying the
research to the individual claimant. For example, in one case, the
claimant's doctor stated that he had reviewed the research on Agent
Orange, relying primarily on the IOM biennial report that showed an
association between prostate cancer and exposure to dioxin to support
his opinion that the claimant's prostate cancer was related to his
exposure to Agent Orange. Labor denied the claim because the doctor
failed to give his opinion but rather inferred a connection by
presenting an excerpt from an article published by the National
Academies Press.[Footnote 12] The decision letter also stated that
Labor has long established that causality cannot be inferred and
publications are of no evidentiary value, as they are not case specific.
The third challenge the claimants faced is ruling out other factors
that could have caused their medical conditions. For long-latency
illnesses, such as the cancers associated with dioxin exposure, it is
difficult for the claimants' doctors to definitively rule out other
factors that could have caused the medical condition during the
intervening years between Agent Orange exposure and the development of
the medical condition. For example, in one case that was denied by
Labor, five different doctors--including one doctor to whom the
claimant was referred by Labor--asserted an association between the
claimant's medical condition and his exposure to Agent Orange. The
doctor to whom the claimant was referred by Labor stated that "it is
reasonable to assume that his exposure to Agent Orange and to other
herbicides are the causative agent for his transitional cell carcinoma
[i.e., bladder cancer]." Another doctor provided his opinion that the
claimant's bladder cancer was a consequence of his exposure to dioxin
and other environmental toxins during his tenure in Vietnam. A third
doctor stated in his written opinion that "chemical exposures in the
course and scope of his duties as a federal employee are the cause of
his bladder cancer." However, the claim was denied because Labor
determined that the claimant failed to submit medical evidence that
attributed his bladder cancer to his exposure to herbicides in Vietnam.
The decision letter stated that although one of the doctors provided a
medical opinion stating a cause and effect relationship between the
claimant's medical conditions and his federal employment, the doctor
"cannot state with certainty that non-work related factors have no
connection to the claimed conditions. Specifically, he admits that
cigarette smoking and exposure to asbestos are also bladder
carcinogens. Therefore, his opinion is considered speculative and
equivocal in nature, and has little probative value." The claimant
requested four different reconsiderations by OWCP's claims examiners,
and after his death, his widow requested a fifth reconsideration;
Labor's decision was upheld each time.
Labor Identified Few Claims from Contract Employees, but Insurance
Carriers Initially Denied Most of the Claims Identified:
Although Labor and the insurance carriers identified a total of 20
claims from contractor employees, we were not able to include 10 of
them in our analysis of the disposition of the claims because Labor
identified them too late for us to include them. For the 10 claims we
reviewed, 1 was accepted and 9 were initially denied by the insurance
carriers. Of the 9 claims denied, 5 of the claimants asked Labor to
review the insurance carriers' decisions, and 4 claimants took no
further action on the claims. Of the 5 claims that the claimants asked
Labor to review, 3 claimants are waiting for a hearing by one of
Labor's administrative law judges. For the other 2 claims, Labor upheld
the insurance carriers' decisions--1 because the claim was not filed
within the 2-year time period allowed under the law and the other
because the claimant had not sufficiently proved that he had been
exposed to Agent Orange in Vietnam.
For the one claim accepted for payment, the claimant asked Labor to
intervene because his employer, a self-insured contractor for the CIA,
was no longer in business. Absent an employer or insurance carrier, the
CIA--acting in the role of the employer and the insurance carrier--
stated that it "had no objections" to paying the claim. In accepting
the claim, Labor referenced VA's policy regarding Agent Orange claims
and an Environmental Protection Agency report on the health effects of
dioxin exposure to justify its approval of compensation. Noting VA's
presumption that any veteran who served in Vietnam and developed
certain medical conditions associated with Agent Orange had been
exposed, the claims examiner stated that it would be difficult for
Labor to take a contrary position. This claim was also accepted for
reimbursement under the War Hazards Compensation Act. Under the act, an
insurer who pays a claim for an injury from a war risk may be
reimbursed for the costs it bears in connection with the claim.
However, according to Labor officials, some insurance carriers may not
be aware that they can obtain reimbursement under the War Hazards
Compensation Act.
Legislative Options Could Ease Access to Benefits for Civilians:
If Congress chooses to address this issue, several legislative options
could provide more similar consideration of civilian claims as compared
with the claims of their veteran counterparts and improve civilian
access to workers' compensation or other benefits. However, these
options have cost implications, although the lack of data on the number
of civilians in Vietnam and the difficulty potential claimants have in
locating the information needed to file claims make it difficult to
accurately assess their potential costs. In addition, these options
should be carefully considered in the context of the current federal
fiscal environment, as well as the significant policy and cost
implications any changes could have for civilian employees involved in
wars and conflicts since the Vietnam era.
Congress Could Amend the Agent Orange Act to Include Civilians or Set
Up a Separate Program for Civilians Exposed to Agent Orange in Vietnam:
Congress could amend the Agent Orange Act and related legislation that
authorizes benefits for veterans to include civilians. However,
including civilians under these laws may raise concerns for those who
feel that civilians should not be entitled to the same benefits as
military veterans.
Alternatively, Congress could create a separate program to cover claims
for medical conditions that civilians develop as a result of their
exposure to Agent Orange. In addition to the Agent Orange Act for
veterans, Congress has established programs for some special
populations exposed to toxic substances in the workplace that develop
into serious medical conditions after long latency periods. For
example, Congress passed the Radiation Exposure Compensation Act in
1990[Footnote 13] to provide payments to individuals who contracted
certain cancers and other serious diseases as a result of their
exposure to radiation released during nuclear weapons tests or as a
result of their employment in the uranium mining industry. More
recently, Congress passed the Energy Employees Occupational Illness
Compensation Program Act of 2000, as amended,[Footnote 14] which
provides payments to contract employees working in Department of Energy
facilities who were exposed to radioactive and hazardous materials and
subsequently developed illnesses such as cancer and lung disease.
Some key components of these special programs are:
* Providing restitution: The Radiation Exposure Compensation Act was
enacted to establish a procedure for making partial restitution to
individuals who became ill because of radiation exposure from
aboveground nuclear tests or uranium mining. Restitution payments range
from $50,000 for testing victims to $100,000 for uranium miners. The
Energy Employees Occupational Illness Compensation Program Act also
makes payments to eligible claimants and provides medical coverage for
specific illnesses.
* Creating eligibility criteria based on a less stringent standard of
proof for the causal link between exposure and medical conditions:
Because of the inherent difficulties of proving a link between exposure
to radiation or toxic substances and occupational diseases that occur
after long latency periods, other compensation programs rely on a less
stringent burden of proof than FECA or DBA. For example, the Energy
Employees Occupational Illness Compensation Program Act allows payments
if employment at an energy facility was "as least as likely as not" to
have caused, contributed to, or aggravated the claimed medical
condition.
* Using ongoing research on conditions associated with exposure to
determine eligibility: On the basis of recent research findings, the
Radiation Exposure Compensation Act Amendments of 2000 expanded the
list of diseases that may qualify individuals for compensation and
decreased the level of radiation exposure that is necessary to qualify
for compensation. Under the Agent Orange Act, VA uses IOM's biennial
review of research on dioxin exposure and recommendations to add to its
list of accepted medical conditions related to Agent Orange exposure.
* Assisting claimants in processing their claims: The Energy Employees
Occupational Illness Compensation Program Act, as amended, created an
ombudsman position to provide information to claimants. According to
the Director of Labor's Energy Employees Occupational Illness
Compensation Division, the agency provides information and assistance
to claimants in a variety of ways, including resource centers located
throughout the country that assist claimants in completing claim forms
and obtaining the documentation needed to support their claims. He also
stated that Labor has provided pamphlets, public service announcements,
and direct mailings to potential claimants that explain the program,
benefits available, procedures for filing claims, and where they can
obtain assistance. The Radiation Exposure Compensation Act also
provides for outreach and information to potential claimants. The
Department of Justice administers this program and has established an
Internet Web site, conducts on-site visits to groups and organizations
to promote the program, and operates a toll-free telephone line for
program queries.
Congress Could Amend an Existing Statute to Grant Military Status to
Certain Civilians:
Congress could amend the GI Bill Improvement Act of 1977,[Footnote 15]
which allows DOD to retroactively grant military status and authorize
full VA benefits to certain civilian groups that support the military
during armed conflicts. Women who served in the Women's Air Forces
Service Pilots during World War II are the model for the statute,
because they comprised a quasi-military group that rendered service to
the United States during wartime, but at the time, were excluded from
joining the armed forces because of their gender. In 1977, Congress
specifically recognized the service of that group as active military
duty and directed DOD to issue regulations under which similarly
situated groups could be recognized. In 1987, a federal court
determined that DOD had failed to clarify the factors and criteria used
in implementing this statute. As a result, DOD clarified the rules for
accepting groups and issued DOD Directive 1000.20. Under this
directive, a group must submit an application showing that it meets the
criteria, including the criterion that it provided service to the U. S.
government during a period of armed conflict, was subject to military
control, and was integrated into the military organization (see table
2). Groups do not, however, have to meet all of the criteria in order
to be accepted, but it remains unclear how many of the criteria must be
met for a group to be accepted.
Table 2: Criteria for Acceptance under DOD Directive 1000.20:
Criteria for application: 1. Have been similarly situated to the
Women's Air Forces Service Pilots of World War II (a group of federal
civilian employees attached to the U.S. Army Air Force in World War II);
Criteria for acceptance: 1. Uniqueness of service. Civilian service
during a period of armed conflict is not necessarily equivalent to
active military service, even when performed in a combat zone. Service
must be beyond that generally performed by civilian employees and must
be occasioned by unique circumstances.
Criteria for application: 2. Have rendered service to the United States
in what was considered civilian employment with the U.S. armed forces
either through formal civil service hiring or less formal hiring if the
engagement was created under the exigencies of war, or as the result of
a contract with the U.S. government to provide direct support to the
U.S. armed forces;
Criteria for acceptance: 2. Organizational authority over the group.
The concept of military control is reinforced if the military command
authority determines such things as the structure of the civilian
organization, the location of the group, the mission and activities of
the group, and the staffing requirements to include the length of
employment and pay grades of the members of the group.
Criteria for application: 3. Have rendered that service during a period
of armed conflict;
Criteria for acceptance: 3. Integration into the military organization.
Integrated civilian groups are subject to the regulations, standards,
and control of the military command authority.
Criteria for application: 4. Consist of living persons to whom VA
benefits can accrue;
Criteria for acceptance: 4. Subjection to military discipline. During
past armed conflicts, U.S. military commanders sometimes restricted the
rights or liberties of civilian members as if they were military
members.
Criteria for application: 5. Not have already received benefits from
the federal government for the service in question;
Criteria for acceptance: 5. Subjection to military justice. Military
members are subject to the military criminal justice system. During
times of war, "persons serving with or accompanying an Armed Force in
the field" are subject to the military criminal justice code. Those who
were serving with the U.S. armed forces may have been treated as if
they were military and subjected to court-martial jurisdiction to
maintain discipline.
Criteria for acceptance: 6. Criteria for application: Prohibition
against members of the group joining the armed forces. Some
organizations may have been formed to serve in a military capacity to
overcome the operation of existing laws or treaty or because of a
governmentally established policy to retain individuals in the group as
part of a civilian force.
Criteria for acceptance: 7. Receipt of military training and/or achievement of military capability. If a group employed skills or resources that were enhanced as the result of military training or equipment designed or issued for that purpose, this acts toward recognition.
Source: 32 C.F.R. Part 47, DOD Directive 1000.20.
[End of table]
Although five groups of civilians who worked in Vietnam during the war
have applied for consideration under DOD Directive 1000.20, none has
been accepted. To date, Slick Airways, a division of Airlift
International; U.S. civil servants on temporary duty at Long Binh,
Vietnam; U.S. and foreign civilian employees of CAT, Inc; U.S. civilian
crewmembers of the Flotilla Alaska Barge and Transport Company; and
Vietnamese citizens who served in Vietnam as commandos under contract
with the U.S. armed forces have applied for consideration under the
directive. In its application, one of these groups claimed to have met
all seven criteria for acceptance. In its decision, the DOD
Civilian/Military Service Review Board[Footnote 16] stated that the
group met the "organizational authority over the group" criterion, and
that board members disagreed over whether the group met the "uniqueness
of service" criterion. In addition, the board acknowledged that there
was evidence of military command authority over the group but asserted
that the group was not integrated into the military organization and
was not subject to military discipline or military justice. The
application was denied.
Easing Access to Benefits for Civilians Has Cost and Policy
Implications:
The options presented above could have significant cost and policy
implications. However, with little data available on the actual number
of civilians in Vietnam, their exposure levels, and the number of
claims that would be filed, it is difficult to estimate the costs of
these options.
According to information provided to us by VA officials, of the 2.3
million living military veterans who were in Vietnam during the war
approximately 160,000 (less than 10 percent) are receiving disability
compensation benefits from VA for the four most common medical
conditions associated with Agent Orange exposure.[Footnote 17] VA's
average annual cost of providing workers' compensation and medical
expenses to veterans receiving benefits under the act for the four most
common medical conditions is about $8,500 for disability compensation
and $1,000 for medical expenses. Although these costs do not include
the costs of administering the claims, when VA added diabetes as a
condition related to Agent Orange exposure, it estimated that the
administrative costs for each claim processed would be about
$350.[Footnote 18]
Including civilian employees who worked in Vietnam under these options
also has policy implications. It could set a precedent that might
prompt other federal and contract employees who have worked for the U.
S. government in war zones since the Vietnam War--such as the Gulf War
and the current conflict in Iraq--to seek similar benefits. Such a
precedent could prove costly because the U.S. military has employed a
much larger number of contractor personnel in recent wars and conflicts
than in Vietnam.
Conclusions:
The fact that Labor does not collect data on Agent Orange claims that
allow it to identify the claims using its database makes it difficult
to identify trends in the number and disposition of claims. The coding
errors in Labor's database also make it difficult to identify and track
these claims. In addition, while Labor is the licensor of insurance
carriers for government contract employees, it is difficult, without
proper records, to help claimants identify the insurance carriers or
determine how well insurers are following through on their obligations.
Both Labor and claimants are burdened by the difficulties the agency
has in providing information to claimants--particularly contract
employees filing claims under DBA--on how to file claims, locate their
former employers, and identify the employers' insurance carriers,
difficulties that leave room for delays and errors in processing claims.
Federal and contract employees who may have been exposed to Agent
Orange while working for the United States during the Vietnam War have
clearly had a different experience than their military counterparts in
requesting compensation under the Agent Orange Act. In short, these
employees must meet more stringent standards in pursuing claims under
FECA and DBA. The cost implications of options designed to increase
access to compensation for civilians exposed to Agent Orange should be
carefully considered in the context of the current and projected fiscal
environment. The lack of information available about the number of
possible civilian Agent Orange claims, however, makes it difficult for
us to estimate the potential costs were such options to be adopted. In
addition, any consideration of these options should include an
assessment of the policy and cost implications the changes could have
for other civilian employees involved in wars and conflicts since the
Vietnam War, such as the war in Iraq. Setting a precedent for expanding
benefits to civilian employees could have a much larger impact in the
future as the U.S. military increases its reliance on contract
employees.
Recommendations for Executive Action:
To improve the handling of civilian Agent Orange claims, the Secretary
of Labor should:
* direct OWCP to assign a unique identifying code to Agent Orange
claims and develop procedures to ensure that these claims are coded
correctly;
* provide better oversight of licensed DBA insurance carriers by
requiring the Office of Longshore and Harbor Workers to track the
information it retains on licensed insurance carriers for Vietnam era
employers in an easily searchable format, such as in an automated file,
and track changes in ownership for each licensed carrier in order to be
able to determine liability for payments; and:
* direct the appropriate offices to provide contract employees with the
information needed to file Agent Orange claims by taking such measures
as posting information on Labor's Web sites or developing informational
brochures that include information on how to file a claim under DBA,
such as which forms to use, and information on Vietnam era contractors
with the names of their insurance carriers licensed by Labor.
Agency Comments:
We provided a draft of this report to Labor, DOD, and VA for comment.
Labor and VA provided written comments on the draft, which are
reproduced in appendixes II and III.
Labor generally agreed with our recommendations. The agency agreed to
improve its handling of civilian Agent Orange claims by developing a
unique code to use in identifying these claims, improving its oversight
of licensed DBA insurance carriers, and assisting contract employees in
obtaining information on filing claims by enhancing the information on
its Web site. Regarding our recommendation to develop a better system
for tracking information on licensed DBA insurance carriers, Labor
stated that it does not have the funding needed to create a relational
database or the resources to enter these data into such a database.
However, it also stated that a current evaluation of its processes may
provide some recommendations for enhancing its data capability in this
area. Given the availability of easy to use, off-the-shelf database
packages, we continue to believe that Labor could implement this
recommendation with relatively little expense and that data entry could
be phased in over time or contracted out.
VA expressed serious concerns about the legislative options for easing
civilians' access to workers' compensation benefits. It highlighted the
additional costs and administrative burdens associated with the
options. VA also expressed concern about the precedent-setting
implications these options could have for civilian employees involved
in other wars and conflicts since the Vietnam War. As noted in the
report, we agree that the cost and policy implications of these options
should be carefully considered.
DOD provided only an informal technical comment on the report. Labor
and VA also provided a few technical clarifications, which we
incorporated as appropriate.
We will send copies of this report to the Secretaries of Labor,
Defense, Veterans Affairs, and other interested parties. We will also
make copies available to others upon request. In addition, the report
will be available at no charge on GAO's Web site at [Hyperlink,
http://www.gao.gov].
Please contact me or Revae Moran on (202) 512-7215 if you or your staff
have any questions about this report. Other contacts and staff
acknowledgments are listed in appendix IV.
Signed by:
Robert E. Robertson:
Director, Education, Workforce, and Income Security Issues:
[End of section]
Appendix I: Technical Appendix:
Estimating the Number of Civilian Employees:
Many of the agencies we contacted were unable to locate records on
federal and contract workers employed in Vietnam, primarily because of
the age of the records and the fact that they were not automated.
However, using the limited historical data provided to us by the
Department of State and the Department of Defense (DOD), we developed
estimates of the number of civilian employees who worked in Vietnam
during the war.
The Department of State was not able to provide the total number of
contract employees who had worked in Vietnam but was able to identify
the names of federal employees who had worked there between January
1964 through November 1965 and January 1967 through November 1974 from
its quarterly Foreign Service reports. As these are historical reports,
we were unable to assess the reliability of these data for several
reasons: Most records were not computerized in the 1960s or 1970s, most
paper records have either been destroyed or were not organized in a way
that would facilitate the identification of personnel, and most
officials who were knowledgeable about employees in Vietnam are no
longer with the agency. We entered the names from these quarterly lists
into an automated file, sorted out likely duplicates, and counted the
remainder. On the basis of our analysis, we estimated that about 6,000
employees of the Department of State worked in Vietnam during the war.
In the absence of information from the Central Intelligence Agency
(CIA) and the Departments of Agriculture and Treasury, we used the
Department of State estimate as a proxy for the number of federal and
contract employees each agency employed in Vietnam. We also assumed
that these agencies did not have as many employees in Vietnam as the
much larger number of DOD contract employees needed to support the
military operations. On the basis of these assumptions, we estimated
that these four agencies employed about 24,000 workers in Vietnam
during the war.
Although DOD officials were unable to locate information on the number
of federal employees who had worked for the agency during the Vietnam
War, we located historical reports of civilian personnel strength by
year at DOD's Directorate for Information, Operations, and Reports and
used these data to develop estimates of the number of federal civilian
employees who worked for DOD in Vietnam. These data provide a count of
the number of employees for one point in time during the year. However,
DOD officials told us that civilians likely stayed in Vietnam for a 2-
year rotation before returning to the United States, so totaling these
annual counts would overestimate the total number of employees. To
obtain an unduplicated count, we used the annual civilian personnel
strength data and assumed a 2-year rotation. For example, in 1964 DOD
had 44 federal employees in Vietnam, but in 1965 had 51 employees--an
addition of 7 new employees. In 1966, DOD had a total of 444 federal
employees. However, assuming the 44 employees from 1964 had completed
their 2-year rotation and returned home, they would not be included in
this count. Therefore, the 444 is composed of the 7 employees who
arrived in 1965 and 437 new employees who arrived in 1966. Using this
methodology, we estimated that about 4,600 DOD employees were in
Vietnam during the war (see table 3). We obtained the personnel
strength data from published DOD reports but were unable to assess the
reliability of the data for several reasons: Most records were not
computerized in the 1960s and 1970s, most paper records have either
been destroyed or were not organized in a way that would facilitate the
identification of personnel, and most officials who were knowledgeable
about employees in Vietnam are no longer with the agency.
Table 3: Estimated Number of DOD Federal Employees in Vietnam, 1964 to
1974:;
Year: 1964;
Annual federal employee personnel strength data provided by DOD: 44;
Estimated number of DOD federal employees entering Vietnam each year,
assuming a 2-year rotation: 44.
Year: 1965;
Annual federal employee personnel strength data provided by DOD: 51;
Estimated number of DOD federal employees entering Vietnam each year,
assuming a 2-year rotation: 7.
Year: 1966;
Annual federal employee personnel strength data provided by DOD: 444;
Estimated number of DOD federal employees entering Vietnam each year,
assuming a 2-year rotation: 437.
Year: 1967;
Annual federal employee personnel strength data provided by DOD: 1,240;
Estimated number of DOD federal employees entering Vietnam each year,
assuming a 2-year rotation: 803.
Year: 1968;
Annual federal employee personnel strength data provided by DOD: 1,427;
Estimated number of DOD federal employees entering Vietnam each year,
assuming a 2-year rotation: 624.
Year: 1969;
Annual federal employee personnel strength data provided by DOD: 1,522;
Estimated number of DOD federal employees entering Vietnam each year,
assuming a 2-year rotation: 898.
Year: 1970;
Annual federal employee personnel strength data provided by DOD: 1,133;
Estimated number of DOD federal employees entering Vietnam each year,
assuming a 2-year rotation: 235.
Year: 1971;
Annual federal employee personnel strength data provided by DOD: 868;
Estimated number of DOD federal employees entering Vietnam each year,
assuming a 2-year rotation: 633.
Year: 1972;
Annual federal employee personnel strength data provided by DOD: 646;
Estimated number of DOD federal employees entering Vietnam each year,
assuming a 2-year rotation: 13.
Year: 1973;
Annual federal employee personnel strength data provided by DOD: 811;
Estimated number of DOD federal employees entering Vietnam each year,
assuming a 2-year rotation: 798.
Year: 1974;
Annual federal employee personnel strength data provided by DOD: 919;
Estimated number of DOD federal employees entering Vietnam each year,
assuming a 2-year rotation: 121.
Year: 1975;
Annual federal employee personnel strength data provided by DOD: Not
available;
Estimated number of DOD federal employees entering Vietnam each year,
assuming a 2-year rotation: Not available.
Year: Total;
Annual federal employee personnel strength data provided by DOD:
[Empty];
Estimated number of DOD federal employees entering Vietnam each year,
assuming a 2-year rotation: 4,613.
Source: DOD and GAO analysis.
[End of table]
DOD was unable to provide information on the number of contract
employees it had working in Vietnam during the war. However, from DOD's
Directorate for Information, Operations, and Reports we were able to
obtain the annual dollar amount of DOD service contracts provided to
companies between 1966 and 1974 for work in Vietnam, and we used these
data to develop estimates of the number of contract workers. DOD
officials told us that service contracts were the most likely type of
contract to be used to pay salaries to contract workers, as opposed to
other types of contracts that would have been used to purchase items
such as equipment and supplies. We were unable to assess the
reliability of these data for reasons similar to those noted for the
data we obtained for federal employees. In addition, the data are
further limited because we were unable to determine if the service
contracts would have been for salaries to U.S. citizens or foreign
nationals and because 3 years of data (1964, 1965, and 1975) were not
available.
Using the limited data available, we divided these annual amounts by a
range of "burdened labor rates" to estimate the number of employees
represented by these contracts each year. DOD officials told us the
burdened labor rate---salary, subsistence expenses, company overhead,
profit, insurance, travel, and other costs that would have been
included in the total contract amount---could vary among contracts.
However, a DOD official with experience administering contracts advised
us that doubling an employee's annual salary would approximate this
burdened labor rate.
However, DOD was unable to provide us with information on the range of
salaries paid to contract employees in Vietnam. Therefore, to estimate
annual salaries for contract employees, we obtained available salary
scales for federal employees from 1964 to 1975 and selected a range of
low, middle, and high salaries. For our analysis, we assumed annual
salaries of $7,500, $15,000, and $25,000 and doubled them to obtain
burdened labor rates of $15,000, $30,000, and $50,000 per person. We
divided these burdened labor rates into the annual contract amounts to
get an estimated number of contract employees employed in Vietnam each
year. As with the annual estimates of federal DOD employees, we assumed
a 2-year rotation to obtain an unduplicated count, which ranged from
about 43,000 to 142,000 contract employees (see table 4).
Table 4: Estimated Number of DOD Contract Employees in Vietnam, 1966-
1974:
Year: 1964;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $15,000
per person: Not available;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $30,000
per person: Not available;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $50,000
per person: Not available.
Year: 1965;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $15,000
per person: Not available;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $30,000
per person: Not available;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $50,000
per person: Not available.
Year: 1966;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $15,000
per person: 47,253;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $30,000
per person: 23,627;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $50,000
per person: 14,176.
Year: 1967;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $15,000
per person: 4,123;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $30,000
per person: 2,062;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $50,000
per person: 1,237.
Year: 1968;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $15,000
per person: 29,823;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $30,000
per person: 14,912;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $50,000
per person: 8,947.
Year: 1969;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $15,000
per person: 11,667;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $30,000
per person: 5,833;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $50,000
per person: 3,500.
Year: 1970;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $15,000
per person: 27,203;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $30,000
per person: 13,602;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $50,000
per person: 8,161.
Year: 1971;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $15,000
per person: 14,287;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $30,000
per person: 7,143;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $50,000
per person: 4,286.
Year: 1972;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $15,000
per person: 2,060;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $30,000
per person: 1,030;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $50,000
per person: 618.
Year: 1973;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $15,000
per person: 8,233;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $30,000
per person: 4,117;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $50,000
per person: 2,470.
Year: 1974;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $15,000
per person: -2,460[A];
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $30,000
per person: -1,230[A];
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $50,000
per person: -738[A].
Year: 1975;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $15,000
per person: Not available;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $30,000
per person: Not available;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $50,000
per person: Not available.
Year: Total;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $15,000
per person: 142,190;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $30,000
per person: 71,095;
Estimated number of DOD contract employees entering Vietnam each year,
assuming a 2-year rotation: Assuming a burdened labor rate of $50,000
per person: 42,657.
Source: DOD and GAO analysis.
[A] The negative numbers near the end of the war indicate departures
from Vietnam that were dictated by the conclusion of the war rather
than the completion of average time of service there.
[End of table]
[End of section]
Appendix II: Comments from the Department of Labor:
U.S. Department of Labor:
Assistant Secretary for Employment Standards:
Washington. D.C. 20210:
April 4, 2005:
Mr. Robert E. Robertson:
Director, Education, Workforce, and Income Security Issues:
United States Government Accountability Office:
Washington, D.C. 20548:
Dear Mr. Robertson:
This responds to a request for comments from the U.S. Department of
Labor on the draft report, Agent Orange: Limited Information Is
Available on the Number of Civilians Exposed in Vietnam and Their
Claims for Compensation. We have reviewed the report and our comments
are as follows:
In response to the concern that certain kinds of exposure, such as
Agent Orange, are not adequately tracked in its information systems,
OWCP will develop claim codes in each program so that Agent Orange
claims can be separately distinguished upon receipt, which will improve
identification and retrieval. Agent Orange claims are administered in a
single office for each program (Cleveland for FEC and San Francisco for
Longshore).
The Longshore program will more closely enforce the coverage card
submission requirement by making compliance a condition of ongoing
authorization to participate in the Longshore automated system. It
should be noted that the number of insurance coverage cards stored in
the Longshore district offices is in the tens of thousands--one card
for each insurance policy for each employer for each district office
where it has policies for each policy period. Although Longshore does
not have funding to create a relational data base or resources to enter
this data, an evaluation is being conducted in support of the OMB
Performance Assessment Rating Tool process that may make some useful
recommendations about enhancing Longshore's data capacity.
To help contractor employees with the information needed to file Agent
Orange claims, OWCP will also enhance its website to direct potential
claimants to the existing DBA Question and Answer web page, where the
information and forms for submitting claims are already available at
www/dol.gov.esa/owcp/dlhwc/DBAFags.htm.
GAO should note that the flow chart for the Longshore program on page
15 of the draft is misleading. The Longshore program issues
recommendations to the parties, not approvals or denials. Following the
box "Labor notifies claimant," the next steps should be:
* Claimant contests denial and requests informal conference:
* Labor holds informal conference and. issues recommendations on the
contested claim:
* Claimant disagrees with Labor's recommendations and requests formal
hearing:
* Administrative law judge (ALJ) holds hearing and issues binding
decision:
* Claimant appeals ALJ decision to the Benefits Review Board (BRB):
* BRB decision may be appealed to the federal court of appeals and to
the U.S. Supreme Court:
GAO should also note that several references in the report to the
Energy Employees Occupational Illness Compensation Program Act of 2000
do not reflect the major amendments to that Act enacted in October 2004.
The Department appreciates the opportunity to provide comments on this
report.
Sincerely,
Signed by:
Victoria A. Lipnic:
[End of section]
Appendix III: Comments from the Department of Veterans Affairs:
The Deputy Secretary Of Veterans Affairs:
Washington:
April 12, 2005:
Mr. Robert E. Robertson:
Director:
Education, Workforce, and Income Security Issues:
U. S. Government Accountability Office:
441 G Street, NW:
Washington, DC 20548:
Dear Mr. Robertson:
The Department of Veterans Affairs (VA) has reviewed the Government
Accountability Office's (GAO) draft report, AGENT ORANGE: Limited
Information Is Available on the Number of Civilians Exposed in Vietnam
and Their Claims for Workers' Compensation (GAO-05-371). Although GAO
makes are no recommendations to VA, in responding to the requesters,
GAO submits several options for further exploration. The Department
agrees with GAO that should legislation be proposed that would cause VA
to absorb claims for civilians exposed to Agent Orange, further
intensive study and cost-benefit analysis would be required. The impact
of such precedent-setting legislation on VA could be severe. While the
actual magnitude of potential Agent Orange claims from civilian and
contract employees may be limited, the potential for similar claims
related to recent Persian Gulf conflicts is severe indeed. The Federal
government is still working to identify and establish etiology for
myriad illnesses related to exposures in that region.
"To care for him who shall have borne the battle and for his widow and
his orphan" remains VA's mission. VA's highest obligation for provision
of health care is to the men and women who have sustained disabling
illnesses or injuries as a result of their military service. The
potential increase in workload and in required financial resources
resulting from enactment of these options would significantly affect
VA's mission and how it is fulfilled.
VA agrees with GAO that illnesses sustained while in service to our
Nation should be treated equitably for those in uniform as well as
those not in uniform. As GAO observes, although the Department of Labor
(DOL) already has a procedure in place to address such civilian claims,
claimants face difficulties and delays due to problems obtaining
evidence from civilian employers and other administrative problems. VA
submits that it, or any other agency, would encounter many of the same
problems facing DOL.-Accordingly, VA suggests that improvements to
the in-place procedures be evaluated as an alternative to imposing
potentially significant new responsibilities on VA.
The enclosure discusses further the Department's concerns with GAO's
suggested options to the congressional requesters. VA appreciates the
opportunity to comment on your draft report.
Sincerely yours,
Signed by:
Gordon H. Mansfield:
Enclosure:
Department Of Veterans Affairs (Va):
Comments To Government Accountability Office (GAO) Draft Report,
Agent Orange: Limited Information Is Available on the Number of
Civilians Exposed in Vietnam and Their Claims for Workers' Compensation
(GAO-05-371):
Comments:
GAO discusses legislative proposals which might make it easier for
civilian employees to receive benefits related to illnesses caused by
exposure to Agent Orange. Two of these proposals would raise
significant cost and policy issues for VA.
Proposal to Amend the Agent Orange Act:
GAO suggests that Congress could amend the Agent Orange Act to cover
civilians. VA notes that the Agent Orange Act does not itself authorize
VA to provide compensation and treatment to veterans, but merely
establishes evidentiary rules that apply to existing benefit programs.
GAO recognizes that an amendment authorizing VA to provide benefits to
civilian employees might cause negative public opinion about civilian
employees receiving the same benefits as military veterans. To avoid
such a reaction, GAO suggests that Congress create a separate program
to cover civilian herbicide exposure claims. This program would be
similar to the special programs that Congress established for
individuals exposed to toxic substances in the workplace, such as the
Radiation Exposure Compensation Act (RECA) for individuals exposed to
radiation released during nuclear weapons tests or in uranium mines, or
the Energy Employees Occupational Illness Compensation Program Act
(EEOICPA) of 2000 for Department of Energy employees who were exposed
to radioactive or otherwise hazardous materials in the course of their
employment. The report did not specify what department or agency would
be responsible for creating and maintaining this special program. It
should be noted, however, that creation of a separate, stand-alone
program similar to RECA or EEOICPA would also have significant cost and
precedent implications, whether administered by VA or any other agency.
Proposal to Amend the GI Bill Improvement Act of 1977:
The second legislative proposal in the report would amend the GI Bill
Improvement Act of 1977, which allows the Department of Defense to
retroactively grant military status to certain civilian groups that
support the military during armed conflicts. This amendment would
authorize full VA benefits to specific civilian groups that supported
the military in Vietnam, and would allow civilians to apply for and
obtain benefits in the same manner as veterans. VA notes that groups
given such recognition are considered to have performed active
military, naval, and air service, and, therefore, are eligible for a
wide variety of benefits not limited to benefits for disability due to
herbicide exposure. See 38 C.F.R. § 3.7.
VA Policv Concerns:
Citing the sparse data available on the actual number of civilians
supporting the military in Vietnam, the level of their exposures, and
the number of claims that would be filed, the report does not estimate
the cost of either legislative proposal. However; both legislative
proposals could potentially result in VA processing and paying
compensation claims and providing medical care to the civilians who
were exposed to Agent Orange while supporting the military in Vietnam.
If VA were required by law to process the claims of civilians who
worked for the military in Vietnam, VA would have to somehow verify the
claimant's status as a Federal employee or contractor. This would be a
costly, difficult, and time-intensive task, given that the Vietnam War
took place over three decades ago, and many of the contracting
companies may no longer exist. VA would have the burden of processing
both valid and meritless claims.
VA is also concerned that a precedent could be set that may prompt
other Federal civilian and contract employees who work for the
government during periods of war to seek similar benefits. Currently,
the U.S. military employs a significantly larger population of contract
personnel than it did in Vietnam.
VA's core mission is to provide services and benefits to the men and
women who have sustained injuries or illnesses based on military
service. For instance, restriction of new enrollment for Priority Group
8 veterans has allowed VA to continue providing the high quality health
care that veterans deserve. It has reduced waiting times for current
users and for newly enrolled veterans in higher statutory priority
groups. Such policies allow VA to refocus on its core mission of caring
for service-connected, low income, and special needs veterans,
including veterans who may suffer significant combat disabilities in
the future. Adding civilians to VA's already stretched system would
mean that civilians would receive health care services instead of
veterans. Such a condition would be unacceptable to VA and its
stakeholders. VA's costs and workload would be greatly increased if
civilians were included in our mission, potentially impairing VA's
ability to serve the needs of deserving veterans.
[End of section]
Appendix IV: GAO Contacts and Staff Acknowledgments:
GAO Contacts:
Revae E. Moran, (202) 512-3863:
Karen A. Brown (202) 512-7240:
Staff Acknowledgments:
Nina E. Horowitz made significant contributions to this report. In
addition, Margaret L. Armen, Susan C. Bernstein, Benjamin A. Bolitzer,
Christina Cromley, and Jean L. McSween provided key technical and legal
assistance throughout the engagement.
[End of Section]
FOOTNOTES
[1] See, e.g., Hercules, Inc. v. U. S., 516 U.S. 417 (1996); In Re:
"Agent Orange" Product Liability Litigation, 818 F. 2d 194 (2d Cir.
1987), and No. 04-CV-400, 2005 U.S. Dist. LEXIS, 3644 (E.D.N.Y. Mar.
10, 2005); and Nehmer v. U. S. Veterans Admin., 712 F. Supp. 1404 (N.D.
CA 1989).
[2] DBA extends the provisions of the Longshore and Harbor Workers'
Compensation Act to certain contractor employees. In this report, when
we discuss claims filed under DBA, we are referring to claims filed
under the Longshore and Harbor Workers' Compensation Act as extended by
DBA.
[3] For an occupational disease, the time for filing is 2 years from
the date the claimant became or should have become aware of the
relationship between the employment and the disease, or if later, 1
year from the date of the last compensation.
[4] Labor can allow employers to self-insure.
[5] As defined in the act, these hazards include "the discharge of any
missile (including liquids or gas) or the use of any weapon, explosive,
or other noxious thing by a hostile force or person in combating an
attack or imagined attack by a hostile force or person." 42 U.S.C. §
1711(b)(1).
[6] In this report, we refer to DBA claims that were "controverted" by
the insurance carriers as claims that were denied by the insurance
carriers.
[7] Employers and insurance carriers have the same rights of review and
appeal as the claimants throughout this process.
[8] The "burdened labor rate" estimates include salary, subsistence,
company overhead, profit, insurance, travel, and other costs that would
have been included in the total contract amount. DOD advised us that
doubling an employee's annual salary would approximate this burdened
labor cost.
[9] The claims examiners also identified 3 claims from federal
employees who were exposed to Agent Orange while working at an Army
depot in the United States that serviced helicopters that had sprayed
Agent Orange in Vietnam. However, because these claimants were not
exposed to Agent Orange in Vietnam, we did not include their claims in
our analysis.
[10] Clerks enter information on each claim in Labor's database when
the claims are first received.
[11] One carrier recalled 4 additional claims but, citing privacy
concerns, would not provide identifying information that would allow us
to ask Labor to locate the claims files. Therefore, we were unable to
include these claims in our analysis or determine whether they were
already included in the claims identified by Labor.
[12] The National Academies Press publishes the IOM's biennial report
on dioxin exposure. This is the report VA uses to establish the
diseases it will recognize as associated with Agent Orange exposure
under the Agent Orange Act.
[13] 42 U.S.C. § 2210, note.
[14] 42 U.S.C. § 7384-85.
[15] 38 U.S.C. § 106, note.
[16] The Civilian/Military Service Review Board reviews and makes
recommendations concerning applications for veteran's status and
consists of representative from the Office of the Secretary of Defense
and the Departments of the Army, Navy, and Air Force and, when
relevant, the Coast Guard.
[17] DOD provided VA with a list of the names of military personnel who
worked in Vietnam during the war.
[18] VA estimated that the general operating expenses for the expected
179,000 claims for Agent Orange-related diabetes would be about $62
million for a 5-year period.
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