A History of Frustration

The Edgewood Arsenal Secret Experiments Claims

BY Bill Triplett

Thanks to a relatively little-known but potentially important court decision, justice long denied to veterans of the 1950s Edgewood Arsenal secret biochemical experiments could now be realized on an unprecedented scale.

The decision—the second important legal victory for Edgewood veterans—was issued by a federal appeals court in 2023; it effectively overrides in certain circumstances the VA’s established compensation policy, in which approved claims are paid out starting on the date a veteran files a claim. With this decision, however, the possibility exists that Edgewood veterans could have their claims backdated to their separation date from the military, even if they filed a claim today.

U.S. Army photo

As a result, many Edgewood veterans could be entitled to 50 or more years of compensation, potentially totaling hundreds of thousands of dollars in each case. It is very possible, however, that few Edgewood veterans know this, just as most of them likely remain unaware of the medical care available to them as a result of a 2016 court decision.

Perhaps even more significantly, the 2023 court ruling allowing backdating of claims could apply to more than just Edgewood veterans. As a Congressional Research Service analysis put it, the ruling “has potential implications for veterans disabled as a result of taking part in other secret military programs for which signing a secrecy oath was a condition of participation.”

Secrecy lies at the dark heart of the history of the Edgewood Arsenal experiments. As we reported in the March/April 2016 issue, in the 1950s the U.S. Army’s Edgewood Arsenal in Aberdeen, Maryland—with help from the Central Intelligence Agency—developed a secret program to test biochemical agents on unsuspecting soldiers. The troops were told only that they would be testing out new clothing, such as field jackets and weapons. They had no idea they would be infected with, or exposed to, deadly nerve agents (sarin and VX), incapacitating agents (BZ), lethal pathogens (plague and anthrax), and even hallucinogens such as LSD and mescaline.

“We had to sign non-disclosure agreements saying we’d never talk to anyone about the tests, not to doctors or anyone,” said Frank Rochelle, an Edgewood Arsenal veteran. By the time congressional inquiries ended the program in 1975, an estimated 7,800 soldiers—including at least 10 women—had undergone the secret experiments.

Eventually, many Edgewood veterans began to develop illnesses and diseases they suspected were a result of the experiments. Though the Army released all Edgewood veterans in 2011 from their secrecy oaths, claims they filed were denied by the VA. As a result of these denials, eight veterans sued. VVA joined the suit because of the organization’s longstanding advocacy for veterans exposed to toxic substances.

Bob Daugherty/AP

After a protracted legal battle, the veterans won their case when the government’s last appeal was exhausted in January 2016. The court ordered the Army—not the VA—to provide medical care to Edgewood veterans. The court also gave the Army six years to find and contact as many exposed veterans as possible, and notify them accordingly.

How well the Army fulfilled its task of locating Edgewood veterans remains a matter of opinion. Army officials told the court that they searched relevant databases for living Edgewood veterans and sent letters to veterans service organizations. Officials also said they were prepared to “launch an information campaign, as well as use a publicly accessible website to post public notifications, in addition to existing social media accounts,” according to a court document.

In six years, the Army heard from fewer than 200 Edgewood veterans, and of these, 80 were approved for medical care. Even allowing for normal mortality rates, surviving veterans should still have numbered in the thousands.

“The Army didn’t do a good job of locating people,” said Rochelle, one of the 80. “It wouldn’t have been hard. They could’ve found them if they wanted to.”

Meanwhile, on a separate track starting in 2007, Edgewood veteran Bruce Taylor filed a disability claim with the VA, saying that the PTSD he suffered resulted from his time at Edgewood and was later aggravated during his time serving in the Vietnam War. The VA granted Taylor 100 percent disability, effective on the date he filed his claim—February 28, 2007. Taylor appealed the decision, arguing the secrecy oath had prevented him from filing a claim sooner, and therefore his effective date should have been September 7, 1971, when he was discharged from the military.

Taylor’s case became embroiled in the Board of Veterans Appeals and the U.S. Court of Appeals for Veterans Claims (CAVC) for the next 10 years, after which, upon hearing the case twice, the CAVC ruled against Taylor. He and his attorney—Mark B. Jones of Sandpoint, Idaho, a specialist in Social Security and VA disability claims—took the case to the Federal Circuit Court of Appeals.

Jones focused on the secrecy oath, which carried with it the threat of criminal prosecution for any Edgewood veteran violating it. “I’m just a little, fat, north Idaho hillbilly with a hound dog,” Jones said, “but I thought, hey, this is a civil rights violation.”

Photo courtesy MAX/Public Domain

Jones maintained that the secrecy oath had effectively denied the participants’ due process as guaranteed in the U.S. Constitution, thereby preventing them from seeking benefits sooner. A three-judge panel of the appeals court unanimously agreed and in 2021 reversed the previous rulings, saying Taylor’s VA claim date was now recognized as his date of separation from service.

The judges’ explicit decision was pointed:

“For decades, the government denied Mr. Taylor his fundamental constitutional right of access to the adjudication system of VA, the exclusive forum for securing his legal entitlement to the benefits at issue. The government’s threat of court-martial or prosecution—without an exception for claims made to VA—affirmatively foreclosed meaningful access to the exclusive adjudicatory forum.

“And without questioning the strength of the interest in military secrecy, we see no adequate justification for this denial of access.”

Five days later, something extraordinary happened. “The court on its own motion vacated that decision because they said it’s too important to be made by a three-judge panel,” Jones said. The full court wanted to hear the case. It took two years, mainly due to the pandemic, but in June 2023, the full court affirmed its own decision and sided with Taylor.

In the immediate aftermath of the case, the government mulled the option of appealing to the U.S. Supreme Court. Jones said he was part of a conference call with multiple participants, including some from the Solicitor General’s office, which represents the government before the Supreme Court. It was a courteous call, Jones recalled, as people discussed the possibility of appealing.

“But there was this guy sort of leading the discussion, and he kept saying, ‘There’s a lot of interest in this case.’” That’s when the larger implications dawned on Jones: Anyone injured during any secret operation could file a similar claim immediately upon discharge. “That’s huge,” he said. “The case potentially invalidates secrecy agreements for anybody who’s been in the military and is subject to a secrecy agreement.”

Photo courtesy DanTD/Wikimedia.org

The Congressional Research Service, which essentially concurred with that view, has already informed Congress accordingly. Furthermore, U.S. Sen. Richard Blumenthal (D-Conn.) introduced a bill codifying the rights to benefits of any veteran who has been subject to a secrecy oath. His bill, S. 5324 would amend title 38 of the U.S. Code to “ensure veterans of secrecy oath programs receive the full benefits they have earned, and for other purposes.” While this bill has not been signed into law, the momentum of legal change and recognition of this issue is now clear.

Whether the public, and specifically whether Edgewood veterans or others who have service-related injuries that are bound by secrecy agreements will also be informed isn’t as clear. Unlike the first Edgewood veterans court case granting medical care, a cursory search revealed that neither the military nor the VA is required to get word out about the potential backdating of claims involving secrecy oaths.

The question also remains as to whether or not the VA is fulfilling its requirement to abide by the ruling. According to court documents VA attorneys filed in April 2024, Edgewood veterans should use the existing claims filing system for requesting claims to ensure that these benefits will be effective from their separation date:

“As Taylor is binding precedent,” the VA says, “VA will continue to apply Taylor in its review and adjudication of claims for service connection filed by claimants who participated in the Edgewood program. Disputes over specific effective dates will be resolved through the traditional adjudication and appeals process.”

Jones is now representing other Edgewood veterans who want their claims backdated and have tried using the existing claims system, only to receive letters of denial from the VA, saying: “At this time, there has been no law change within the VA regulations or policy guidance regarding security clearance that allows for an earlier effective date.” The letters went out in May and June 2024.

As Jones put it, “They’re making representations to the court saying Edgewood veterans can use the normal claims process, when they’re in fact mailing letters to Edgewood veterans saying we don’t have any process.”

Asked how Edgewood veterans should apply for a backdated effective claim date vis-à-vis the Taylor decision, VA Press Secretary Terrence Hayes said that veterans seeking an effective date “per the Taylor decision,” should “follow normal claim-filing procedures. VA has formed a team to review the decision, identify affected veterans, and outline procedures to assign a proper effective date for disability compensation.”

He went on to say that more information about the experiments’ public health implications is on the VA’s website.

To learn more about eligibility for disability compensation, he encouraged veterans to go to https://www.va.gov/disability/eligibility/ “If veterans are concerned about exposures during the chemical tests, we encourage them to talk to their health care provider or local VA Environmental Health Coordinator.”

The apparent clarity of the VA’s direction is undercut by the experiences of veterans like Delbra Morris, one of the 10 women subjected to the Edgewood experiments. In 1975, when she was 19 and stationed at Fort Ord, he was taken into the program with the same lack of informed consent. She was also among the last to be experimented on.

“The doctors got so mad when they were told the program was being shut down,” she said.

For years she has suffered from hyperparathyroidism, which can cause several health problems, including osteoporosis. “It eats up your muscles,” Morris said. “It’s like I’m evaporating.”

In 2018, Morris received a letter from the government informing her about the kinds of experiments she was subjected to, “and it said they take full responsibility for my HPT and my osteoporosis because they resulted from the experiments,” she said.

Delbra Morris filed a disability claim with the VA, which denied it, saying her condition was not service connected. In the interim, she has spent a great deal of her own money on alternative care, which has not helped.

Morris is hoping her attorney, who is representing her in her suit against the VA, will secure her medical care and compensation dating back to her military discharge in 1982.

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