Agent Orange

Menstuff® has compiled the following information on Agent Orange.

What is Agent Orange
Step 1: Get Help
Step 2: Apply
Step 3: Get an Exam
Step 4: Get Evidence

Step 5: Present Evidence
VVA's Guide on Agent Orange
Diseases Currently Recognized by VA as Related to Herbicide Exposure
If You Lose: Appeal!
Working with your Rep
Direct Service Connection
VA Medical Services
Social Security Benefits
Incarcerated Veterans
Help For Children
There Is More You Can Do!
Join
Resources plus Vet Centers
Viet Nam Veterans Association
Lawyers
Mesothelioma Cancer
Newsbytes

 

VVA's Guide on Agent Orange


The purpose of this guide is to assist you, the veteran or survivor, in presenting your claim based on the veteran’s exposure to herbicides in Vietnam in the best way possible to the U.S. Department of Veterans Affairs (VA). To accomplish this, it is best that you work with a trained veterans representative.

This guide describes the VA’s current programs for compensating exposed veterans or their survivors. Additonal resources are available to help you understand whether other VA programs may be available to you. (See last page.) The opportunity to apply for cash payments under the fund resulting from the lawsuit against the chemical companies which made Agent Orange expired in January 1995 and is not disussed in this guide.

There have been many changes in the VA’s rules involving Agent Orange over the past several years and some additional changes are likely as a result of on-going studies and lawsuits. One important change is that you no longer have to prove that you were exposed to herbicides—so long as you served in or near Vietnam. Keep in touch with your representative for additional changes that occur after the publication of this guide.

Even if you decide not to file a formal claim for VA benefits based on exposure to herbicides, you should at least contact the Agent Orange coordinator at the nearest VA medical center to obtain a free physical examination. You may also be entitled to free medical treatment at the VA medical center.

Finally, if you are disabled but don’t think your condition is due to exposure to herbicides, there may be other reasons that the VA would agree you should be paid monthly disability benefits. VVA has prepared a guide on VA Claims and Appeals that may help you.

What is Agent Orange?


Agent Orange was one of the weed-killing chemicals used by the U.S. in Vietnam. The chemical compounds considered as herbicide agents in Vietnam include 2,4-D; 2,4,5-T and its contaminant TCDD (or dioxin); cacodylic acid and picloram.

Herbicides were applied by airplanes, helicopters, trucks and backpack sprayers. An official description of the Air Force’s use of herbicides is found in Operation Ranch Hand published by the Government Printing Office in 1982. Herbicides containing dioxin were used by the U.S. military to defoliate base camps and other facilities in the U.S. and in other countries as far back as the 1950s.

Step 1: Get Help


It is a good idea to get a representative to help you present your claim to the VA. VA rules and procedures are very complicated. The rules regarding the effective dates of certain Agent Orange-related claims are particularly complicated. It can be frustrating and hazardous to go it alone.

Many veterans service organizations and state and county veterans service agencies offer free assistance. No matter who you select to represent you, it is important that you are personally involved in your case and make certain that everything that should be done, is done.

Although it can be a difficult task, shop around for the best representative. Talk to the prospective representative; ask if there are any limits on their service; get a feel for the person who will be working for you before you sign a power of attorney appointing the person as your representative.

Step 2: Apply


When to Apply: You should notify the VA of the benefits you want at the earliest possible time. From anywhere in the U.S., you can call the nearest VA Regional Office (VARO) by using the following number: 1-800-827-1000. Do not wait until you have gathered all the evidence you think you need. Every day you delay can mean another day of benefits lost forever.

Warning: Do not be discouraged by a VA employee who says you are not entitled to benefits. Put your claim in writing and insist on a written reply from the VA.

How to Apply: To apply, send the VA a letter stating that you have a specific health problem and that you claim it is due to your exposure to herbicides while serving in Vietnam. This is called an informal claim and will count as an application (although you will eventually be required to fill out some VA forms). If you have not heard back from the VA within a month you should call to confirm that your application has been received. If you applied before, send a letter that says you are “reopening” your claim.

What to Apply For: The VA offers cash benefits to veterans with service-connected disabilities (under the compensation program) and to veterans with serious nonservice-connected disabilities (under the pension program). Survivors may be entitled to death benefits. The VA officially recognizes only certain diseases as related to exposure to herbicides. See box on next page. If a physician has diagnosed you with one of these conditions, you should not have too much trouble receiving benefits. Under a VA rule (38 C.F.R. § 3.309(e), the VA is to presume that your disease is service-connected.

Who Can Apply: Veterans who served in Vietnam between 1962 and 1975 or who served in the waters just off-shore or who visited Vietnam are presumed to have been exposed to herbicides and can apply for service-connected compensation based on their service. Survivors of such veterans—including spouses or children and sometimes parents—can apply for service-connected death benefits (the Dependency and Indemnity Compensation or DIC program) or for the nonservice-connected death benefits (pension program).

WARNING: If you applied for a cash payment from the Agent Orange Payment Program (the fund created in 1984 out of the lawsuit against the chemical companies that made Agent Orange), that is not the same as applying to the VA for benefits. Also, if you obtained an Agent Orange Registry exam, you still must write to the nearest VA Regional Office and file a claim with it.

Step 3: Get an Exam


If your application lays out a specific health problem, the VA ordinarily schedules you for an examination by a doctor at a VA hospital. This exam should be to confirm a specific disability, to confirm when it appeared, and to find out the severity of your condition.

You may be able to avoid this exam, if your own doctor will prepare a detailed report to the VA Regional Office. Ask your doctor to both document the diagnosis and to explain its impact on your ability to work.

Step 4: Get Evidence


To win an Agent Orange-based claim, you need (1) evidence of service in or near Vietnam, (2) a diagnosis of one of the recognized diseases, and (3) a date of manifestation within the particular deadline.

The VA may contact you for evidence or for permission to write to your doctor for your medical records. Your response to any VA request for evidence should be made only after consulting with your representative.

To understand what evidence the VA has collected, get a free copy of your VA claims file from the VA Regional Office. If you need to document your service in Vietnam, get a free set of your complete military personnel records from the National Personnel Records Center in St. Louis using a Standard Form 180, Request Pertaining to Military Records. This form is available from your representative or any VA office.

How Much Money


The following were the1999 Monthly disability Compensation Rates

10 percent $ 96
20 percent 184
30 percent 282
40 percent 404
50 percent 576
60 percent 726
70 percent 916
80 percent 1,062
90 percent 1,196
100 percent 1,989

Note: Depending upon the disability rating of the veteran, allowances for a spouse range from $34 to $112; and for each additional child, $18 to $60.

Step 5: Present Evidence


You do not help yourself if you simply dump a wad of loose records on the VA. Organize the records and explain their significance in a letter you and your representative prepare together.

You almost always want a hearing at the VA Regional Office if it denies your claim. The hearing will be before an official (the Hearing Officer) who was not involved in the earlier denial.

Diseases Currently Recognized by VA as Related to Herbicide Exposure


The following diseases are those officially recognized by VA as related to herbicide exposure. To win benefits, VA law and regulations also require that some of these conditions appear (or “become manifest”) within a deadline that began to run the day you left Vietnam. If there is a deadline, it is listed in brackets after the name of the disease. If your condition is not listed below, ask your doctor whether what you have is similar to any of these. There may be room to argue that your condition is the same as one of these.

WARNING: This list may change. For more information, please refer to the VA web site on Agent Orange www.vba.va.gov/bln/21/benefits/Herbicide/AOno3.htm

Under the VA rule, soft tissue sarcoma does not include osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma.

If You Lose: Appeal 


If the VA Regional Office says your disability is not service-connected or if the percentage of disability is lower than what you think is fair, you have the right to appeal to the Board of Veterans’ Appeals.

The first step in appealing is to send the VA Regional Office a “Notice of Disagreement.” This Notice is a letter saying that you “disagree” with the denial. Be sure to include in your letter the date of the VA’s denial letter and be sure to list the benefits you are still seeking.

Deadline: The Notice of Disagreement must be mailed to the VA Regional Office within one year of the denial of your claim or you cannot appeal. (You still can reopen your claim if you miss this deadline but you lose an earlier “effective date” for an award of back benefits.)

If you win, one issue which you should examine carefully with your representative is whether the VA has set the correct effective date for your award. Particularly, if you previously filed a claim that was denied, review with your representative the VA instructions contained in VBA Circular 21-94-1 (Feb. 15, 1994).

Working with Your Rep 


Keep in touch: You should talk to your representative at least once per month while your claim is pending. Whenever you get mail from the VA, call your representative to make sure s/he has gotten it and that you both understand it. If you move, let your rep know.

Ask questions: If you do not understand something about your case, ask about it. Don’t worry about asking a stupid question—your representative works for you and part of his or her job is making sure that you understand everything.

Be insistent: If something needs to be done, insist that it happen. Do not be talked out of anything unless you understand what is going on.

Direct Service Connection


Even if you did not serve in Vietnam or do not have one of the diseases listed on the previous page, you can still apply for service-connected benefits if you were exposed to an herbicide (or other toxic chemical such as benzene) while in the military which you believe caused your disease. In order to prove such a claim, you should submit medical articles and doctors’ statements to the VA linking the exposure to your disease.

VA Medical Services


In 1981 Congress authorized the VA to provide certain health-care services for disabilities which may have been caused by exposure to herbicides. The VA must accept a veteran’s statement that he or she was exposed and provide health care unless the VA can point to a cause for the problems other than Agent Orange. Veterans who qualify for treatment under this law do not have to pay for services received.

The health-care services authorized for veterans whose service in Vietnam can be verified include hospital care, nursing home care, and outpatient care in VA facilities on a pre- or post-hospitalization basis or to eliminate the need for hospitalization. These health-care services “will be provided without regard to the veteran’s age, service-connected status or the inability of the veteran to defray the expenses of such care.”

Under this law, health-care services may not be provided for conditions which resulted from a cause other than exposure to a herbicide. If an examination reveals a condition requiring treatment, the doctor is to determine if the condition resulted from a cause other than exposure to dioxin or other toxic substance in herbicides.

According to VA guidelines, the following types of conditions are not ordinarily considered to be due to such exposure:

By specifying that the above conditions are not due to Agent Orange, the VA has apparently agreed to treat any Vietnam veterans with any other conditions. No decision that the condition is connected to service must be made. The allegation that the veteran was exposed to Agent Orange appears to be enough. Of course, veterans denied care based on Agent Orange exposure may be provided care if they are eligible under other laws.

Vietnam veterans have the same priority for receiving outpatient care as former POWs who are receiving care for nonservice-connected conditions. This priority places qualifying veterans exposed to Agent Orange ahead of other nonservice-connected veterans.

Separate from the VA Compensation and Pension exam, you can get an Agent Orange Registry exam which consists of four parts: an exposure history, a medical history, laboratory tests and a physical exam of those body systems most commonly affected by toxic chemicals. This exam might detect diseases which can be treated more effectively the earlier they are diagnosed.

Social Security Benefits


The Social Security Administration (SSA) offers both disability insurance benefits and supplemental security income benefits. Veterans can receive both SS disability insurance benefits and VA disability compensation. There is an offset of the VA pension or compensation with SSI benefits.

Unlike VA compensation benefits that are measured in degrees of disability, SSA benefits require a total disability that will last at least one year. If you cannot work because of your disability, contact the nearest district office of SSA (800-772-1213).

Incarcerated Veterans


Even if you win VA benefits, you are not going to be paid all the money while you are in prison if you were convicted of a felony. Benefits withheld from you, however, can be “apportioned” to your family. If you cannot attend a VA examination, try to obtain a detailed medical report of an exam conducted by your facility’s doctor. Ask the doctor to use the criteria in the VA Physician’s Guide to Disability Evaluation Examinations and VA Rating Schedule in conducting the exam.

Help for Children


Starting October 1, 1997, the VA will pay compensation and offer free medical care and vocational rehabilitation to Vietnam vets children with Spina Bifida.

The VA also offers assistance to children of veterans if the veterans have been rated at least 30 percent service-connected disabled. Such veterans receive a dependents’ allowance. Children of veterans considered permanently 100 percent disabled can also receive education assistance and health care through its CHAMPVA program.

Children with disabilities may be eligible for Supplemental Security Income benefits. One of the Agent Orange-funded programs offers a16-page booklet discussing children’s eligibility for SSI (“SSI: New Opportunities for Children with Disabilities”). Contact: Mental Health Law Project, 1101 15th St., NW, Suite1212, Washington, DC 20005

The Agent Orange Program provided funding for a program for families with children with birth defects or other special health needs. The Center for Developmental Disabilities at the University of South Carolina offers a National Information Service which consists of telephone access to trained counselors, to provide information and referral services for parents of children with disabilities, including information and referrals concerning genetic counseling. Contact: 800.922.9234 x 401 or in South Carolina call 800.922.1107.x 401

There is More You Can Do


Educate yourself about issues facing Vietnam veterans and the nation; read some of the many good books that have been published recently.

Join VVA to keep current on developments; if you are not a Vietnam era veteran, membership is open as an “associate” member.

File a claim for VA disability compensation if you are disabled; encourage others to.

Volunteer your time and talents to the nearest Vet Center or veterans organization.

Work with groups of veterans to set up a meeting with the Director of the nearest VA Regional Office to review how it handles claims from Vietnam veterans.

Write your U.S. Representative (c/o House of Representatives, Washington, DC 20515) and U.S. Senator (c/o U.S. Senate, Washington, DC 20510) or visit their local offices to urge them to support increased compensation now for Vietnam veterans.

Investigate what services are available from your state for veterans and how well those services are delivered.

Encourage civic organizations, unions, and business associations to which you belong to take a stand on veterans’ issues.

Join the leader!


Benefits start with belonging. Along with your membership card, we will keep you up-to-date with the award-winning The VVA Veteran ® newspaper.

Other benefits include low-cost group insurance, affinity credit cards, personal checks, rental cars and hotel discounts, group travel, discounted subscription rates for the Vietnam military history magazine and more. Your choice has never been more clear. VVA has a proud legacy and it’s the organization that you should belong to.

Individual membership is open to all Vietnam-era veterans who served on active duty for other than training purposes between January 1, 1959, and May 7, 1975. Associate membership is open to all veterans, family members, friends and the general public.

Resources


The following publications are a few of the resources that may give you additional help with your claim:

Veterans Benefits—410pg paperback written for vet; sections on VA benefits, claims procedures, advocacy tips; published by HarperCollins; to order from VVA Veterans Collectibles, call 800.626.8387.

Veterans Benefits Manual and Supplement—written for representative; details on filing, presenting claims for full range of VA benefits; offered by National Veterans Legal Services Program; to order, call 202.265.8305.

Title 38, Code of Federal Regulations—the official set of VA regulations; available from the Government Printing Office; to order, call 202.512.1800.

Veterans Appeals Reporter—contains decisions of Court of Veterans Appeals; published by West Publishing Co.; available at nearest VARO.

Vietnam Veterans of America


Vietnam Veterans of America® (VVA) is a non-profit, congressionally chartered veterans service organization dedicated to helping Vietnam-era veterans and their families obtain all the benefits and services to which they are entitled. VVA has accredited Service Representatives in most states who can provide representation at the VARO level. A list of the nearest VVA Service Representatives can be obtained by writing to: VVA Veterans Benefits Program, 8605 Cameron Street, Suite 400 Silver Spring, MD 20910-3710

Many other veterans organizations offer a wide range of services. Most states operate a department of veterans affairs and many states have a network of county veterans representatives. To locate accredited representatives, call or visit the nearest VARO.

Lawyers


There are limits on when you can pay a lawyer to help you with a VA claim. Generally, you can hire a lawyer only after the BVA has decided your claim. Then you have only one year to hire a lawyer. Many lawyers work on a contingency basis that means you do not have to pay them a fee up front and if you do not win benefits, you will not have to pay a fee.

There are no limits on when someone else (a so-called third party) can use his or her own money to hire and pay a lawyer to represent you. This third party cannot be a family member who may benefit from your claim. If you use a third party to hire a lawyer, the lawyer can represent you at the beginning of a claim. Also, there are no limits on hiring a lawyer when the VA is coming after you because of a home loan guarantee debt.

Some private lawyers and some legal aid or legal services offices provide representation free of charge at all stages of a VA claim.

There is an organization of attorneys and nonattorneys who regularly practice before the Court of Veterans Appeals. Its members are available to represent you at the Court or, through a third party contract, before a VARO or the BVA. For a list of these members, contact: Nat’l Organization of Veterans’ Advocates, PO Box 42334, Washington DC 20015. 800.810.VETS

If no private practitioners are willing to represent you at the Court of Veterans Appeals, it might be possible to obtain pro bono representation through the Veterans Pro Bono Consortion. The Court will send you information about this opportunity. It is available only to a limited number of persons who meet income guidelines.
Source: http://www.vva.org/Benefits/vvgagent.htm

Newsbytes


30 years after war, Vietnam suffers toxic legacy


For a stark reminder of the Vietnam War, people living near the airport in this central industrial city can still stroll along the old stone walls that once surrounded a U.S. military base. But Luu Thi Nguyen, a 31-year-old homemaker, needs only to look into the face of her young daughter.

Van, 5, spends her days at home, playing by herself on the concrete floor because local school officials say her appearance frightens other children. She has an oversize head and a severely deformed mouth, and her upper body is covered in a rash so severe her skin appears to have been boiled. According to Vietnamese medical authorities, she is part of a new generation of Agent Orange victims, forever scarred by the U.S.-made herbicide containing dioxin, one of the world's most toxic pollutants.

For decades, the United States and Vietnam have wrangled over the question of responsibility for the U.S. military's deployment of Agent Orange. But officials say they are now moving to jointly address at least one important aspect of the spraying's aftermath -- environmental damage at Vietnamese "hot spots" such as Nguyen's city, Da Nang -- that are still contaminated with dioxin 31 years after the fall of Saigon.

Though neither Nguyen nor her husband was exposed to the Agent Orange sprayed by U.S. forces from 1962 to 1971, officials here say they believe the couple genetically passed on dioxin's side effects after eating fish from contaminated canals. "I am not interested in blaming anyone at this point," the soft-spoken Nguyen said on a recent day, stroking her daughter's face. "But the contamination should not keep doing this to our children. It must be cleaned up."

'Concrete actions'

Vietnamese and U.S. officials last year conducted their first joint scientific research project related to Agent Orange. Testing of the soil near Da Nang's airport, where farmers say they have been unable to grow rice or fruit trees for decades, showed dioxin levels there as much as 100 times above acceptable international standards.

Now the United States is planning to co-fund a project to remove massive amounts of the chemical from the soil. A senior U.S. official involved in Vietnam policy said the plan is evidence that the two countries, having embarked on a new era of economic cooperation, are finally collaborating to address the problem.

"The need to deal with environmental cleanup is increasingly clear, and we're moving forward from talking to taking concrete actions to respond to the issue," the official said, speaking on condition of anonymity because the project has not yet been publicly announced.

The more politically sensitive issues of responsibility and direct compensation for victims remain unresolved. Although medical authorities here estimate that there are more than 4 million suspected dioxin victims in Vietnam, the United States maintains that there are no conclusive scientific links between Agent Orange and the severe health problems and birth defects that the Vietnamese attribute to dioxin.

Still, with a much-changed Vietnam now among Asia's most dynamic economies -- the French luxury house Louis Vuitton has opened a branch in Hanoi, and the hottest nightspot in the capital is a glitzy disco called Apocalypse Now -- both sides appear more willing to seek common ground. Ahead of President Bush's first official visit to Vietnam this week, some also express hope that they are taking the first steps toward a reconciliation on their most divisive wartime issue.

Coming together

During the war, American forces sprayed about 12 million gallons of Agent Orange over the jungle canopies and jade-green highlands of Vietnam. The most toxic of the herbicides used for military purposes, it defoliated countless trees in areas where the communist North Vietnamese troops hid supply lines and conducted guerrilla warfare.

Because Vietnam lacked the resources to conduct its own environmental cleanup, dioxin-related birth defects have been diagnosed in thousands of children whose parents were not exposed during the war. In many cases, families such as the Nguyens were not warned of the hazard until it was too late.

After doctors told them their daughter, Van, was a dioxin victim, the Nguyens cemented over the small garden in their front yard and stopped eating fish from nearby canals. Even now, however, many of their neighbors remain unaware of the danger.

"What could any of us do anyway?" asked Luu Thi Nguyen, whose family survives on the $1.50 a day her husband makes as a day laborer. "None of us can afford to move. Now I know the soil is contaminated. My daughter has already suffered from this, and I worry about what this soil might still be doing to all of us."

Vietnamese officials estimate the cost of cleaning up the country's three worst hot spots -- including the area near the old U.S. military base in Da Nang that is now the city's main airport -- will be as much as $60 million. Before year's end, they hope to launch the first phase, the development of a plan for cleanup and land use in the city, with an initial contribution of about $300,000 from the U.S. government.

That kind of cooperation has appeared to give new momentum to the issue on other fronts. On Thursday, the Ford Foundation announced that it is putting $2.2 million toward environmental restoration, contamination education and victim relief projects related to Agent Orange. The United Nations Development Program is also set to piggyback with a major grant in coming weeks that would provide additional research funding for the cleanup effort, which Vietnamese officials hope to complete by 2010.

"Vietnam is developing economically very rapidly, and I think the passage of time has played a role in both sides coming together," said Charles R. Bailey, the Vietnam director of the Ford Foundation, which has also funded key studies used to identify the country's most contaminated areas. "There is a sense that this is the last piece of unfinished business between the two countries. It is finally starting to be bridged."

But many here stress that the United States still needs to do far more to right past wrongs, and some are anticipating that Bush will offer a measure of apology for Agent Orange's wartime use when he visits.

"There are new signs that we are moving forward on cooperation with the U.S. on technical issues," said Le Ke Son, Vietnam's top official on Agent Orange. "It is very important to close the past, to close the war between Vietnam and the United States. But for that to happen, the U.S. must agree to cooperate with us in a bigger way."

Push for compensation

What many Vietnamese are waiting for is direct compensation for victims of Agent Orange as well as an unambiguous admission of responsibility from the U.S. government.

In 1991, Congress authorized assistance for American veterans believed to be suffering from dioxin side effects, but at the same time, the legislation noted that conclusive links between illnesses and the herbicide remained "presumptive." That allowed U.S. officials to effectively sidestep a de facto admission of guilt in Vietnam and avoid offering compensation to Vietnamese victims.

At least one group of victims has already made a formal push for compensation, filing a lawsuit in New York against the chemical companies that produced Agent Orange, including Dow Chemical and Monsanto. In the late 1970s, U.S. veterans filed a similar case and settled out of court in 1984 for a $180 million payment. The Vietnamese case was dismissed last year, but an appeal hearing is expected next month.

The recent advances toward cleaning up the environment are of little solace to these Vietnamese. In a country where birth defects are considered by some an embarrassing reflection of the ill deeds of ancestors, many of the children born with the most severe defects end up abandoned or living in squalid conditions with families too poor to pay for adequate care.

The lucky ones end up in the Peace Village ward for Agent Orange victims at a hospital in Ho Chi Minh City, formerly Saigon. In rooms filled with stricken children, nurses tend to patients including a 2-year-old boy born without eyes and a 14-year-old girl whose head has grown bigger than her torso. Many of the 60 young patients have severely limited mental faculties, but existence appears tougher for those who are still alert.

U.S. officials have argued that Vietnam has exaggerated the extent of Agent Orange's effect, blaming the herbicide for birth defects that may have other genetic or environmental roots. But it's the kind of argument that infuriates people such as Duc Nguyen, 25, who began life as a conjoined twin.

Nguyen, born in the south-central town of Sathay, an area heavily sprayed by Agent Orange during the war, was separated from his brother, Viet Nguyen, at age 7. Doctors here say that soon after their birth, their mother's tissues were found to contain high levels of dioxin. These days, Duc Nguyen, who has one leg and severe bone distortions, works as Peace Village's information technology specialist. He spends his days in an office one floor below his noncognitive brother, who is kept tied to a bed most of the time, unable to move his stump-like body and reflexively gargling on his own saliva.

A 2004 study by the Vietnamese government indicated that birth defects in Sathay were 10 to 20 times more common than the national average. Duc Nguyen is engaged to be married next month to a beautiful young woman he met through his work at the hospital. But he is still far from finding peace.

"I find it ironic that on one hand you put [Saddam Hussein] on trial for using biological warfare, but in another country where you sprayed chemicals for warfare, you neglect your responsibility," said Duc Nguyen, who is not related to Luu Thi Nguyen in Da Nang.
Source: Anthony Faiola, http://www.msnbc.msn.com/id/15692010/?GT1=8717

Supreme Court Takes Up Old Agent Orange Settlement


Nearly 30 years after the Vietnam War, the Supreme Court is sorting through a dispute between ill veterans and chemical companies over Agent Orange exposure - and whether it's too late to sue.
Source: www.intelihealth.com/IH/ihtIH/WSIHW000/333/8012/361626.html

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