Veterans used as test subjects for chemical and biological tests during the Cold War won a small victory in court recently when appellate judges ruled the Army must keep them apprised of developments related to their health.
In its June 30 decision, the 9th Circuit Court of Appeals also said the Army, not the Veterans Affairs Department, should provide medical care to those vets.
The ruling came on a class-action lawsuit filed by Vietnam Veterans of America, Swords to Plowshares and individual veterans over medical care for troops who participated in research programs at Edgewood Arsenal and Fort Detrick, Maryland, from the early 1950s through the mid-1970s.
The judges ruled the Army is obligated to provide the vets updated information on issues pertaining to their health. They also rejected a district court's earlier argument that even though the Army should have furnished medical care for the veterans under its own regulations, it didn't have to to because the VA provides care to some of the affected personnel.
The judges sent the case back to the Northern California District Court Judge Claudia Wilken to reconsider.
"The district court could not ... categorically deny injunctive relief to former volunteer subjects seeking necessary medical care because some former subjects may be entitled to receive medical care from another government agency," the judges wrote.
Nearly 7,000 troops took part in chemical research programs at Edgewood from 1950 to 1975 and in biological research at Fort Detrick from 1946 to 1977, testing substances such as mescaline, ketamine, LSD, and nerve agents like sarin.
In earlier eras, World War I and World War II troops numbering in the tens of thousands were used for human experiments to test chemicals and protective equipment, exposes to mustard gas and "Lewisite," a blister agent with bodily consequences similar to mustard gas.
The military services began developing their first policies on human experiments in 1953, requiring that subjects be apprised of the tests and provide informed consent.
But many Edgewood test veterans like plaintiff Frank Rochelle volunteered for the duty thinking they were testing battle gear for troops heading to Vietnam.
Instead, Rochelle and others were injected with an anticholinergic — a class of drug that includes atropine and Benadryl — that acts as a bronchodilator but can cause delirium, hallucinations and seizures if ingested in large quantities, and unnamed liquids that made them forget the entire event, according to military records.
At a news conference in 2009, veteran Frank Rochelle speaks about being exposed to dangerous chemicals and germs during government-sponsored Cold War experiments.
Photo Credit: Jeff Chiu/AP
In a 2012 interview with Military Times, Rochelle said he never touched a piece of equipment or uniform gear. "To this day, the only reason I know I got [some of the drugs are] because it's in my record," he said.
Despite the 9th Circuit Court of Appeals ruling, veterans will still have to wait before they will receive medical care from Tricare instead of the VA.
The government, which has 45 days to respond, has several options. It can request a rehearing based on newly discovered evidence, rebut the decision, or seek a hearing before a larger group of justices called an en banc session.
Army spokesman Lt. Col. Ben Garrett said the Army is aware of the ruling but cannot comment further as officials are "still reviewing the court's findings."
The original lawsuit was filed in 2009 against the Army, the VA, the Defense Department and the Central Intelligence Agency, with veterans petitioning to be notified that they were used in the experiments, told what substances they had received, released from privacy oaths and awarded medical coverage through Tricare.
Government attorneys argued the case should be dismissed because Congress, DoD and VA have investigated the testing for years, have notified many participants and already provide many with health care and disability benefits through the VA.
The Morrison & Foerster law firm has represented the veterans groups and former troops pro bono. None of the plaintiffs are seeking monetary redress.
"We're pleased the case has been remanded so the district court can now formulate an injunction that will get the Army to provide medical care to those veterans who so desperately need it," said attorney Eugene Illovsky. "This is a large class of people who felt they were promised medical care under Army regulations and needed their voices heard."
Patricia Kime is a senior writer covering military and veterans health care, medicine and personnel issues.