Agent Orange: Limited Information Is Available on the Number of Civilians Exposed in Vietnam and Their Workers' Compensation Claims
Published: 2005-04-22T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: 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?
section_title: What GAO Found
paragraphs: 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.

section_title: Letter
paragraphs: 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.
subsections: section_title: Background
paragraphs: 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.
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.)
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. 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). Under  DBA, Labor is required to license the insurance carriers that provide the  employers’ workers’ compensation coverage. 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.” 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. 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.
section_title: Because Information Is Limited, Our Estimate of the Number of Federal and Contract Employees in Vietnam during Wartime Is Imprecise
paragraphs: 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.
subsections: section_title: Many Agencies Were Unable to Locate Records on Civilians Employed in Vietnam, but a Few Provided Some Estimates
paragraphs: 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.
section_title: Using Limited Data, We Estimated That There May Have Been as Many as 171,000 Civilians Working in Vietnam during the War
paragraphs: 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. 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.
section_title: For the Few Claims Identified, Claimants Faced Many Obstacles, and to Date, Most Claims Have Been Denied
paragraphs: 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.
subsections: section_title: Labor and the Insurance Carriers Could Not Readily Identify Agent Orange Claims through Their Databases
paragraphs: 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.
subsections: section_title: Claims from Federal Employees
paragraphs: 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. 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. 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.
section_title: Claims from Contract Employees
paragraphs: 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. 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.
section_title: Civilians Faced Difficulty in Pursuing Claims, in Part, because of Difficulty Obtaining Information about the Claims Process and Poor Records
paragraphs: 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.
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).
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.
section_title: Claims Filed under FECA Require Proof of a Causal Link, and to Date, Labor Has Denied All but One Claim
paragraphs: 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. 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 .” 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.
section_title: Labor Identified Few Claims from Contract Employees, but Insurance Carriers Initially Denied Most of the Claims Identified
paragraphs: 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.
section_title: Legislative Options Could Ease Access to Benefits for Civilians
paragraphs: 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.
subsections: section_title: Congress Could Amend the Agent Orange Act to Include Civilians or Set Up a Separate Program for Civilians Exposed to Agent Orange in Vietnam
paragraphs: 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 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, 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.
section_title: Congress Could Amend an Existing Statute to Grant Military Status to Certain Civilians
paragraphs: Congress could 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.  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.
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 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.
section_title: Easing Access to Benefits for Civilians Has Cost and Policy Implications
paragraphs: 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. 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.
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.
section_title: Conclusions
paragraphs: 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.
section_title: Recommendations for Executive Action
paragraphs: 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.
section_title: Agency Comments
paragraphs: 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 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.
section_title: Appendix I: Technical Appendix
subsections: section_title: Estimating the Number of Civilian Employees
paragraphs: 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.
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).
section_title: Appendix II: Comments from the Department of Labor
section_title: Appendix III: Comments from the Department of Veterans Affairs
section_title: Appendix IV: GAO Contacts and Staff Acknowledgments
subsections: section_title: GAO Contacts
section_title: Staff Acknowledgments
paragraphs: 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.